Director of Public Prosecutions v Angus (a pseudonym)
[2020] VCC 304
•23 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-02435
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAI ANGUS (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 March 2020 |
DATE OF SENTENCE: | 23 March 2020 |
CASE MAY BE CITED AS: | DPP v Angus (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 304 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Family Violence – Recklessly causing serious injury – Use of heavily bladed weapon – Common assault on son – Children in home at time of offending
Sentence: Five years and three months with a non-parole period be three years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Livitsanos (for plea) Ms M. Rezsneki (for sentence) | Office of Public Prosecutions |
For the Accused | Mr J. Portelli | James Dowsley and Associates |
HIS HONOUR:
1Jai Angus[1], you have pleaded guilty to one charge of common assault, which carries a maximum penalty of five years and one charge of recklessly causing serious injury which carries a maximum penalty of 15 years imprisonment. You have admitted two relevant prior matters. The circumstances of your offending are set out in the prosecution opening, Exhibit A, which forms part of these reasons for sentence. In brief, you were married to the principal victim, Heather Angus[2].
[1] A pseudonym
[2] A pseudonym
Circumstances of Offending
2There were several periods of separation during the marriage. Ms Angus has described a lengthy relationship of abuse and control, including physical, psychological and financial violence. Police had previously been involved in unspecified matters on a number of occasions. The two previous appearances for unlawful assault that comprise your criminal record relate to your victim, Ms Angus.
3In April 2017, Ms Angus finally left you. You have four sons together, the eldest being your victim in relation to Charge 1, Bruce Angus[3].
[3] A pseudonym
4At the time of your crimes on 18 June 2018, he was 18 years of age. You have three younger sons, Andrew[4] who was aged 16 at the time, Mark[5] who was 11 years old at the time and Ryan[6] who was aged 10. In June 2018, your victim, Ms Angus and your four sons were staying at your house for a couple of weeks whilst their previous living arrangements were unavailable. They were due to return to their own home the following day.
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
5On Monday 18 June 2018, Ms Angus went to work as usual. That evening you suggested that she and the boys stay at your home for one more night.
6That night you and Ms Angus were in the lounge room watching television. Both of you had been drinking. The youngest boys, Mark and Ryan were in bed. The older boys, Bruce and Andrew were nearby.
7An argument developed apparently in relation to some financial disagreement. You became increasingly angry, gesticulating in an aggressive manner. At one point you smacked the plate that Ms Angus was holding and the sandwich that was on it, toward her in an aggressive manner before punching her to the head. Your son Bruce then approached telling you to stop and you turned on him, striking him to the face.
8Ms Angus tried to intervene. You engaged in a protracted assault in relation to your son and also a further assault of Ms Angus as she tried to help your son Bruce. At one point Bruce got up from the floor and you grabbed him around the neck, almost ripping off his upper clothing. Andrew Angus was nearby holding a phone in his hand. You dared him to call the police. You told Ms Angus to take the kids and leave. You then removed your dressing gown in an aggressive manner, leaving your T-shirt and tracksuit pants on. You pursued Ms Angus towards the hallway and slapped her again.
9You then went to the master bedroom and retrieved a machete which you kept near your bed. You held the machete up against Ms Angus's neck as she retreated down the hallway towards the front door. You shouted, 'This is what you wanted'. She was petrified and yelled, 'I don't want to die'.
10At some point you struck her with the machete to her right upper arm causing a serious incised wound which bled profusely. Bruce could see his mother holding onto the front screen door and he could see that she was bleeding profusely. You asked him if he had called the police yet and snatched the phone from his hand when he answered no. Ms Angus left the premises and went outside. She told you that she would say that she had done the injury to herself. She ran out the front door and soon collapsed in the middle of the road.
11The statement she made in relation to indicating that she had done the injury to herself is very revealing. It is illustrative of the context of your offending and indeed as to the history of your relationship with Ms Angus and the dynamic between you. It is a revealing expression of the power imbalance in the relationship, you the self-righteous oppressor, her the vulnerable subject of your oppressive conduct.
12I have viewed the CCTV footage of the event, as there were cameras operating in your house. The footage captures your aggression and your demeanour in the lead up to the infliction of the serious injury. It is shameful. In sworn evidence before me you have characterised the footage as horrendous, uncomfortable to watch, horrible, appalling and acknowledged how terrifying it would have been for your victims. In reference to your conduct as revealed by the CCTV footage, you offered the assessment that it depicted a monster. I would emphasise each of the adjectives you chose to describe your offending and I would add, 'Cowardly, callous and vicious'.
13The serious injury you inflicted to Ms Angus has been described as an incised wound to the outer aspect of the left forearm, involving a posterior complete severing of the nerve of the forearm and incomplete severing of the muscles of the forearm. Ms Angus also had a wound to the left upper neck just below the jaw line which has been described as linear and superficial, consistent with the machete being held to her neck. She also had circular, purple bruises to the right upper neck area consistent with being grabbed around the neck.
14There was significant blood loss at the scene, requiring an arterial tourniquet. As I observed during the plea hearing, the definition of serious injury embraces injuries that are life threatening that might otherwise ultimately resolve.
15Ms Angus's serious injury has not resolved. She has had a lengthy, painful and frustrating rehabilitation. She is also left with a permanent scar. Yet the assessment of the significance of the serious injury is not limited to the degree of permanent injury. It also involves an assessment of what was, without doubt, a life-threatening injury at the time, it if were not treated promptly. The medical reports also note that the amount of bleeding experienced by your victim can be limb-threatening if not treated promptly.
Objective gravity
16Your offending constitutes a very serious example of the offence of recklessly causing serious injury. The witness accounts and the CCTV footage depict a frightening episode of family violence. Your superior size and stature is obvious. The context in which this episode of violence occurred was one involving a history of oppression and abuse in the relationship, such that your victim no doubt felt helpless, powerless and extremely fearful once your aggressive argument spilled over into unbridled violence.
17Your principal victim, Ms Angus, witnessed your ugly assault on your son. He and your other children then witnessed your ugly assault on your wife, which escalated to the point of you pausing to retrieve the heavy bladed weapon that can be seen in the footage and in the photographs and then returning to strike her with it, thus inflicting the serious injury I have described.
18As I have stated previously, her statement in the midst of the pain and fear you inflicted in spite the blood loss she was experiencing, being that she would take responsibility for the infliction of injury to herself, is illustrative of the history of family violence, in the broad sense that that term is understood, that no doubt existed between you both.
Victim impact statement
19The victim impact statement of Heather Angus was read aloud during the plea and tendered Exhibit D. The physical, psychological and emotional impact upon Ms Angus is significant and ongoing and I take it into account.
Personal circumstances
20You are now 43 years of age. You have two prior matters, both charges of unlawful assault and both resulting in without conviction dispositions. As I have noted, both offences were committed against Ms Angus and are therefore relevant and significant matters. You were vague, almost dismissive of these matters when you were cross-examined about them.
21You were born in Auckland in 1977. You migrated to Australia in 2001 or thereabouts together with your wife, Ms Angus and the two children you had at that stage. You moved to Melbourne for work purposes and have ended up staying and establishing a strong work record up to the time of this offence.
22Your work history is impressive. You completed your secondary schooling and at age 18 commenced employment with Nissan manufacturing in Auckland working on the production line. You were retrenched when the Nissan manufacturing operation closed. You then worked for an alcohol beverage company for five years in Auckland at which point in time your employment was transferred to Melbourne where you were employed by a related company for six years.
23You came to Melbourne to set up a new production line and became a production team leader and a blending manager. You left that employment around 2010 or 2011. You then started working for Toyota in Melbourne, initially on the production line. You became a union delegate, an OH&S delegate and a Work Safe delegate and were later transferred with no formal training to work in the Human Resources department (HR).
24You worked in HR at a particularly difficult and stressful time for the company. The company was in a retrenchment phase because Toyota were winding up their operation in Melbourne. Whilst you were in the HR role, the company put off 2,500 workers. Part of your role was to endeavour to find alternative employment for these workers who were being retrenched. Understandably, this was an extremely stressful occupation for you at that time. I accept that at the time of the offending, this factor was operating in a negative way upon your composure and tolerance and placed you under considerable psychological pressure.
25In the years leading up to the offences before the court, you were drinking very heavily. You reported to Mr Cummins during his psychological examination of you that at times of binge drinking, you would drink two slabs of beer in a sitting. In the report with Mr Cummins, you state that around the time you left the beverage employment in Melbourne which was around 2011, you were grieving because you lost both of your grandparents to whom you were very close. Both have played a significant role in your development.
26In sworn evidence before me, you emphasised how the loss of your grandparents had affected you greatly and led to an increase in your drinking. Excessive alcohol consumption provides part of the context for your offending before the court. I also accept that you were under considerable stress in your employment at the time. You told Mr Cummins that your excessive drinking commenced seven or eight years ago and that it was then that alcohol became a problem for you and from that time on you consumed up to two slabs of beer per drinking session.
27You said that when you had the job at Toyota, in hindsight you consider that you were a functioning alcoholic. You pointed out to Mr Cummins that in your view, your wife was also an alcoholic, mainly drinking spirits. Mr Cummins described the circumstances leading up to the offending as you were endeavouring to cope with the perfect storm of pressures. You told
Mr Cummins:'I was addicted to alcohol, my wife was addicted to alcohol, I had a very demanding job, I was working under a lot of pressure and I was helping staff leave the place where they’d loved working and I knew that after I'd helped staff leave then I'd be the next to leave and at that time I was worrying about what work I'd do because I was then having to support our four sons'.
28Mr Cummins said that at interview you readily acknowledged that at the time of the offending you were not coping in a psychological sense and were self-medicating on alcohol. Mr Cummins opined that the primary motivator for your offending was pent up feelings of frustration and a sense of feeling overwhelmed with the demands being placed on you through your work and you were self-medicating on alcohol and to use your words to him, 'You were a functioning alcoholic at the time of the offending'.
29A relevant matter in my overall assessment of your personal circumstances was your early childhood experience of disadvantage and trauma. Your own father was apparently an abuser of substance and alcohol. He left you and your mother when you were an infant. Your mother re-partnered and your step-father was abusive toward you and your mother. In your sworn evidence before me, you indicated that for the most part, your step-father's abuse was in a verbal form. I accept that the absence of a positive role model and indeed the presence of negative role models in your developmental years is a factor that is likely to have contributed to the dysfunctional coping mechanisms you exhibited on this occasion and which are inconsistent with your apparent intelligence, aptitude for employment and interpersonal skills.
30Whilst I accept that the pressures of your employment in 2018, your alcohol misuse and the legacy of your traumatic and disadvantaged childhood all have a role to play in explaining and understanding your conduct. What is missing from Mr Cummins' analysis and the analysis of your counsel, Mr Portelli, is the context of a marital relationship that was controlling and abusive by your hand. What played out on 18 June 2018 was very serious and extreme offending to which excessive alcohol consumption and pent up stress and anger were contributors but it was extreme offending which sat within a context of a past relationship which involved assaults on previous occasions, although considerably more minor.
31Your explosion of violence on 18 June 2018 was a choice you made, a choice conditioned to an extent by your traumatic and dysfunctional childhood development, blurred by intoxication, skewed perhaps by the pressure and stress you were under at work but a choice nonetheless. Your resort to violence was not entirely out of character. You must learn to develop strategies that lead you to demonstrate restraint rather than a resort to violence when your anger gets the better of you into the future.
Matters in mitigation
32I accept that you have pleaded guilty at a relatively early stage of proceedings. Your plea of guilty is significant in that it facilitates justice. It is also significant as the victims and witnesses to your conduct have not been required to give evidence. I also accept that your pleas are reflective to some degree of remorse.
33You gave impressive evidence in front of me. No doubt it was not an easy thing to do to come into the witness box and answer the matters that were put to you by your counsel and by Mr Livitsanos for the prosecution. You were frank in your acknowledgement of your horrendous offending. That is significant in itself.
34You expressed remorse. You also expressed remorse to Mr Cummins. My assessment of the depth of your remorse was tempered to some degree, however, when you were questioned by Mr Livitsanos as to your previous assaults on your wife. Despite some slight reservation, I find that you are genuinely remorseful for your offending against your wife. I have no such reservation in finding that you are genuinely remorseful for the assault on your son. Your prospects of rehabilitation are very good in my assessment.
35As I pointed out on your plea, I cannot recall ever encountering a prisoner on remand who has completed as many rehabilitative and occupational courses as you have. I accept that on a daily basis you have reflected on your crimes and have shown daily resolve to improve yourself through any available means. You have also worked whilst in custody. You are a prisoner welfare support person and you have also worked as a pastor. The references tendered in support of you and your sworn evidence satisfy me that you have the ability, the support and the good intentions to continue on the path toward rehabilitation that you have been on.
36I am satisfied that you have made considerable progress thus far. As I have stated your work history is very impressive. In particular, your insight and commitment to dealing with what was no doubt a significant alcohol problem is impressive. I am satisfied that your intention to continue to address the problem into the future is genuine. It is significant that you have spent the period on remand and will continue to experience custody for the remainder of your sentence under the burden of the stress and anxiety associated with what you would reasonably expect to be your deportation to New Zealand.
37This is significant as you have been in this country for approximately 20 years. You have developed a life here. You became a much-valued employee in a responsible position with a leading company. I accept, on balance, that you have lost employment benefits and potentially retrenchment benefits due to the termination of your employment when you were incarcerated. Two of your children were born here, all of your four children live here and will continue to live in this country. You have other family here that you are close to.
38Whilst your mother is in New Zealand I accept that deportation would constitute a catastrophic and life-changing consequence of your offending and that this almost certain prospect weighs heavily upon you during your period of incarceration. I take this matter into account.
39I have also taken into account your dysfunctional and disadvantaged upbringing in the manner advanced by your counsel, as well as his submission regarding the role that alcohol played as one of the circumstances of the offence.
Gravity of serious injury offences in the context of family violence
40As was pointed out by the prosecutor, your offending must be viewed in the context of family violence. Accordingly, general deterrence is a significant consideration as is denunciation and just punishment.
41The serious factors in your offending include;
i.you were engaged in unprovoked and frightening assaults on your wife and son in the home.
ii.your son was viciously assaulted because he tried to intervene in your assault on his mother.
iii.your level of aggression from the outset is significant.
iv.you are a large and powerful man in comparison to your victims.
v.not withstanding your physical superiority, the fact you were completely dominant and your victims were fleeing from you, you paused to retrieve a lethal weapon from your bedroom.
vi.the weapon was a large machete, a heavy bladed weapon of frightening appearance.
vii.you further assaulted your cowering wife with the weapon, deliberately striking her once to the arm.
viii.the injury inflicted was limb-threatening and life-threatening if she did not receive prompt medical attention.
ix.she pleaded with you that she did not want to die.
x.she told you that she would accept responsibility for the injury and you acquiesced by your silence when the authorities attended.
xi.the protracted episode unfolded in front of all of your sons who were clearly terrified.
xii.the offending occurred against the background of family violence and abuse including specifically two former instances of assault on Heather Angus.
42As I emphasised on the plea, you are not to be punished anew for your past misdeeds nor are you punished in any way for what has been described as an abusive past relationship. The background, and in particular, the prior matters, illuminate your moral culpability for the matters before me.
43Whilst you are not to be punished for prior matters, your moral culpability and prospects of rehabilitation are assessed in light of these antecedents. The degree of leniency available to you for the offending before me is tempered by the two prior matters. The background necessarily informs my assessment of the circumstances of the offending, also in particular insofar as it sheds lights on the dynamics of the relationship between you and your victim.
44I sentence you as follows. Will you please stand, Mr Angus.
45Charge 1, common assault, you are sentenced to be imprisoned for four months.
46Charge 2, recklessly causing serious injury. You are sentenced to be imprisoned for five years and one month.
47I direct that two months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
48That makes a total effective sentence of five years and three months. I direct that the non-parole period be three years and three months. Pursuant to s.18 of the Sentencing Act, I declare that you have served 643 days, is that right,
Ms Rezsneki?49MS REZSNEKI: Yes, Your Honour.
50HIS HONOUR: Yes. Already served 643 days. Pursuant to s.6AAA, had it not been for your pleas of guilty, I would have imposed a sentence of seven years with a non-parole period of five years. Now, are there any other orders that were sought? Disposal?
51MS REZSNEKI: Your Honour, there was just a disposal order and a 464ZF order.
52HIS HONOUR: Yes, I make the disposal order and the 464ZF order, do I have a draft of that probably do, do I? I just have to tell you, in relation to the, what is called a 464ZF order, Mr Angus, I have ordered that your provide a forensic sample, being a buccal swab scraping from the mouth. I have made that order because of the seriousness of the offending and the order is not opposed. And I have to inform you that if at the time of the request you did not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample will be taken - will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I also make the disposal order. Any other orders?
53MS REZSNEKI: No, Your Honour.
54MR PORTELLI: No, Your Honour.
55HIS HONOUR: Thank you both. Thank you everyone attending. Mr Angus, you can - I will leave you briefly but just be mindful of ‑ ‑ ‑
56MR PORTELLI: Yes.
57HIS HONOUR: the circumstances we are in at the moment. He will be taken down very shortly but you can have a quick word to him at a distance. Adjourn the court.
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