Director of Public Prosecutions v Arceri
[2020] VCC 1542
•25 September 2020
Michmicick
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01501
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOE ARCERI |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2020, 15 September 2020 | |
DATE OF SENTENCE: | 25 September 2020 | |
CASE MAY BE CITED AS: | DPP v Arceri | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1542 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Evidence Act 2008 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Kalala v R [2017] 269 A Crim R 1; R v Verdins (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr. M. Habib (Plea) Mr. P. Tatti (Sentence) | Aitken Partners |
HIS HONOUR:
Introduction
1 Joe Arceri, you have pleaded guilty to 11 charges – one charge of causing injury recklessly, which carries a maximum penalty of five years’ imprisonment; one charge of using a carriage service to harass, which carries a maximum penalty of three years’ imprisonment; two charges of common assault, which carries a maximum penalty of five years’ imprisonment; one charge of intentionally destroying property, which carries a maximum penalty of ten years’ imprisonment; one charge of extortion with threat to destroy property, which carries a maximum penalty of ten years' imprisonment; one charge of make threat to kill, which carries a maximum penalty of ten years’ imprisonment; one charge of false imprisonment, which carries a maximum penalty of ten years’ imprisonment; one charge of attempting to pervert the course of justice, which carries a maximum penalty of 25 years’ imprisonment; and two charges of persistent contravention of a Family Violence Intervention Order, which carries a maximum penalty of five years’ imprisonment.
2 You have also admitted your criminal record.
Offending
3 The circumstances of your offending were set out in a Summary of Prosecution Opening dated 30 April 2020 (Exhibit A). That document, which was read out at your plea hearing on 9 June 2020, forms the factual basis upon which you will be sentenced.
4 Your offending can be briefly summarised. Stephanie McGrath[1], your victim, was in a relationship with you for approximately three years leading up to the offending. You have one child together, Brodie[2], now aged three. At the time of your offending, you lived with Ms McGrath at an address in Mickleham.
[1] A pseudonym.
[2] A pseudonym.
5 On 2 January 2019, you and Ms McGrath were travelling home from spending a few days on holidays, together with your young child, Brodie. You pulled over at a fast food restaurant in Wallan to get some food. Upon Ms McGrath getting the food and returning to the vehicle, you became verbally abusive towards her for getting the wrong food. You threw the chips that she was holding on the floor and grabbed her sunglasses from her face. You then began to punch Ms McGrath on her right leg. She bent over her legs to try to protect herself while begging for you to stop. As a result of this assault by you, Ms McGrath sustained bruising to her legs. Your conduct in this regard forms the basis of Charge 1 on the Indictment, recklessly causing injury.
6 Two days later on 4 January 2019, you asked Ms McGrath to show you her bank statements because you were apparently unhappy with her using money to play online pokies. You told Ms McGrath that she was an unfit mother, threatened to take Brodie off her, and threatened to report her to DHS and Centrelink for fraud. At about 1:00am on the following morning, 5 January 2019, Ms McGrath was lying in bed trying to sleep. You entered the room and crawled onto the bed, grabbed Ms McGrath and held her down, saying, “It’s better if you’re not here tomorrow when I go through your statements or I'll kill you. The reason I didn’t go through them tonight is that I would really hurt you.” You then let go of Ms McGrath and went to sleep in the bed. Your conduct in this regard forms the basis of Charge 3 on the Indictment, assault.
7 Later that morning, Ms McGrath collected some of her belongings, told you that she was going to have coffee with a friend, and left the house with Brodie. As the day wore on, Ms McGrath was aware that she was receiving a large number of calls from you, together with messages of an abusive nature demanding that she return home, referring to her as a “mutt” throughout these messages. Ms McGrath stayed the night with a friend and organised a flight to Perth the following day. The next day, Sunday, 6 January 2019, Ms McGrath turned her phone on to see a number of missed calls from you, along with further harassing messages. These harassing phone calls and messages by you, which commenced on 4 January 2019 and continued through until Monday, 7 January 2019, when you again spoke to Ms McGrath by phone and were abusive, forms the basis of Charge 2 on the Indictment, use carriage service to harass.
8 Along with various missed calls and harassing messages from you, after turning her phone on on Sunday, 6 January 2019, Ms McGrath also had missed calls from the Craigieburn Police Station in relation to her and Brodie being reported as missing persons. Ms McGrath contacted Craigieburn Police and explained the situation and advised them that she would be flying out to Perth later that day. After travelling to Perth, Ms McGrath turned her phone back on and again saw a large number of calls and messages from you. You had sent a video of yourself holding a lit blow torch over some documentation, saying in a message, “If you don’t call me, I'm going to burn the house down, don’t push me fucking stupid slut.” Your conduct in this regard forms the basis of Charge 5 on the Indictment, extortion with a threat to destroy property.
9 On the following day, Monday, 7 January 2019, when Ms McGrath called you, you advised that you had been arrested by the Craigieburn Police for threatening suicide. You were again abusive towards Ms McGrath over the phone and continued to threaten self-harm, causing her apprehension. Later that day when you again spoke with Ms McGrath, you begged her to return home to Melbourne. As a result, Ms McGrath organised a flight from Perth later that day and flew back to Melbourne. Upon arriving back at the property, Ms McGrath noticed you outside the house waiting. She could see that the garage door was open and her documentation had been thrown everywhere. On entering the house, she observed damage to the internal walls and to her belongings, including a hairdryer and hair straightener. The two of you began arguing. You pulled out your phone and began recording the conversation, saying that you were going to make her life hell. This argument continued for a short time. Ms McGrath then fed Brodie and placed him into bed, with you standing in the doorway. Ms McGrath pushed past you, at which point you grabbed her and pulled her to the floor. You then struck Ms McGrath repeatedly to the back, causing pain. The argument continued in the lounge room, where you told Ms McGrath that you were going to kill her. Your conduct in this regard forms the basis of Charge 7 on the Indictment, make threat to kill.
10 Ms McGrath went to check on Brodie and upon returning to the kitchen you were holding her mobile phone. You threw it onto the tiles causing it to break, saying, “Now try and call someone.” Your conduct in damaging Ms McGrath phone, together with the earlier damage to the internal walls and belongings of Ms McGrath including her hairdryer and hair straightener, forms the basis of Charge 4 on the Indictment, intentionally destroying property.
11 You then closed the front door and took the key out. Ms McGrath then slept on the floor in Brodie’s room while you continued to enter that room and berate her. Sometime later, Ms McGrath could not hear you anymore and went to the garage and activated the roller door to try and leave the house. Upon hearing this, you went to the garage and pushed the button to prevent the roller door opening. You also disconnected the power to the door, making it inoperable. You then grabbed a yellow coloured blow torch which was lit and walked towards Ms McGrath. In an attempt to protect herself, she grabbed a drill. You then dropped the blow torch and pushed Ms McGrath onto the couch inside the garage. Ms McGrath managed to escape and returned to Brodie’s bedroom. The argument continued as you went to the room a couple of times, on one occasion grabbing Ms McGrath’s head and hitting it on the floor multiple times, causing her an instant headache. Your conduct in this regard, together with earlier striking Ms McGrath repeatedly to the back, forms the basis of Charge 6 on the Indictment, common assault.
12 Ms McGrath took Brodie from the bed and laid him on her chest in an attempt to protect herself from further assaults, and then fell asleep on the floor with Brodie, at which point you left the room. Your conduct in preventing Ms McGrath from leaving the property via the garage door and then preventing her from subsequently leaving the property in the manner I have described, forms the basis of Charge 8 on the Indictment, false imprisonment.
13 The following day, Tuesday, 8 January 2019, Ms McGrath fled the house with Brodie and went to the Craigieburn Police Station. Police subsequently attended at the property and arrested you. You were interviewed, denying the offending, and then remanded in custody.
14 On 10 January 2019, police obtained an Interim Intervention Order against you, on behalf of Ms McGrath. This order was made at the Broadmeadows Magistrates’ Court, and included conditions that you not approach or remain within five metres of Ms McGrath, that you not go to or remain within 200 metres of the property where you had both been residing, or any other place that Ms McGrath lives, works or attends childcare, and that you not get any other person to do anything that you must not do under the order.
15 Subsequent to obtaining the order on 10 January 2019, police monitored telephone calls which you made from both the Melbourne Assessment Prison and Melbourne Remand Centre to family and friends.
16 Between 19 January 2019 and 9 February 2019, you made contact from prison with friends and family, requesting that they contact
Ms McGrath and prevent her from attending Court in relation to the Intervention Order hearing. By way of example, on 19 January 2019, you telephoned your sister, Samantha, urging her to contact Ms McGrath and convince her to revoke the Interim Intervention Order. You told you sister where Ms McGrath’s mother lived and worked, and suggested that someone go and find out how your family is going, and requested that a message be passed on to Ms McGrath that she “shouldn’t do it on 21 February”, referring to the Intervention Order hearing, as you would not be able to see your child for two years. Later that day, you contacted a friend, James Discolo, also asking him to contact Ms McGrath to revoke the order and to make sure she did not go to the Magistrates’ Court on 21 February 2019. In the days following 20 January 2019, you made similar requests of both friends and your family. Your conduct in this regard forms the basis of Charge 9 on the Indictment, attempting to pervert the course of justice.
17 Between 17 January 2019 and 6 February 2019, on more than three occasions you contravened the Family Violence Intervention Order which had been issued by the Broadmeadows Magistrates’ Court on 10 January 2019, by requesting family and friends to attend at the property where you had resided with Ms McGrath, notwithstanding the prohibition in the Intervention Order from doing so. On 17 January 2019, you telephoned your mother and asked her to get a friend to break into the property. On 4 February 2019, you again telephoned your mother and told her that you needed your friend, Mr Discolo, to go to the property. On 6 February 2019, you again telephoned your mother and told her to go to the property to get your stuff. Your conduct in this regard forms the basis of Charge 10 on the Indictment, persistent contravention of a Family Violence Intervention Order.
18 Ms McGrath obtained a variation of the Family Violence Intervention Order at Broadmeadows Magistrates’ Court on 8 February 2019. The conditions of the varied order included additional conditions that you not intentionally damage any property of hers or threaten to do so, that you not attempt to locate, follow or keep under surveillance Ms McGrath, that you not publish on the internet, by email, or other electronic communication any material about Ms McGrath, and that you not contact or communicate with Ms McGrath by any means. This varied Intervention Order was served on you on 12 February 2019. Between 12 February 2019 and 25 February 2019, you again repeatedly breached this varied Intervention Order, by requesting family members to attend at the property where you had resided together, and to attempt to keep
Ms McGrath and Brodie under surveillance. By way of example, on 19 February 2019, you telephoned your aunt and discussed that your uncle had located Ms McGrath’s vehicle in Craigieburn. You gave directions to your aunt to locate the vehicle and drive past it that night. In that conversation, you referred to making your son, Brodie, hate Ms McGrath, and you encouraged your aunt to go to Craigieburn and speak to Ms McGrath. On that same day, you telephoned your mother and requested that your uncle and a friend confirm that they had observed Ms McGrath’s vehicle at the address in Craigieburn. A short time later, you again telephoned your mother, although the call was answered by a friend. You discussed whether your uncle had located Ms McGrath in Craigieburn. You then called your uncle and said that they should organise to go and collect your belongings from the Mickleham address. You also later encouraged others to go and approach Ms McGrath on your behalf. Similar conversations took place over the following days. Your conduct in this regard forms the basis of Charge 11 on the Indictment, persistent contravention of a Family Violence Intervention Order.
Impact on your Victim
19 Your victim, Stephanie McGrath, completed a Victim Impact Statement on 21 April 2020. That statement was tendered at your plea hearing (Exhibit B). At the request of Ms McGrath, the statement was not read aloud in Court. Out of respect for her, I will not now recite any details in relation to that statement, except to say that clearly your offending has significantly adversely impacted her.
20 Victim Impact Statements are an important means through which victims can participate in the sentencing process, by informing the Court of the often significant and long lasting impacts of offending on them.
21 In formulating an appropriate sentence in your case, I have taken into consideration as one of the sentencing factors, the impact of your offending on your victim.
Nature and Gravity of your Offending
22 Your appalling offending essentially arose from your relationship with Ms McGrath, your partner of three years and the mother of your child. Over a five-day period in early January 2019, you assaulted her, threatened, abused and harassed her by phone, damaged her property, threatened to burn the house down if she did not call you, threatened to kill her and detained her against the will. Your arrest and remand into custody did not stop you. Between 19 January and 23 February 2019, you flagrantly breached Court orders designed to protect Ms McGrath from you. You even took steps to attempt to get Ms McGrath to revoke the Family Violence Intervention Order. Your conduct can be collectively described as an intense and sustained period of family violence. Such conduct, which has been described by other Courts as brutal, cowardly, and inexcusable, is truly the scourge of society. Many sentencing decisions of this and other Courts have referred to the prevalence of family violence in our community, and the need in any sentencing decision to emphasise condemnation of such family violence, in line with community expectations.[3]
[3]Kalala v R [2017] 269 A Crim R 1
23 Your conduct commenced on 2 January 2019, when it seems you punched Ms McGrath for the cardinal sin of obtaining the incorrect food at a takeaway food outlet. Whilst the gravity of your conduct in relation to this offence, Charge 1 on the Indictment, of recklessly cause injury, is accentuated by virtue of it occurring in a family violence context, I nevertheless accept that it represents a relatively low-level example of the crime of recklessly causing injury, given thankfully, the relatively minor injury sustained to your victim.
24 Two days later, in the middle of the night as Ms McGrath was trying to sleep, you crawled onto the bed, grabbed her and held her down whilst uttering menacing words in relation to reviewing her bank statements. Again noting that the gravity of your conduct in relation to this offence, Charge 3 on the Indictment, common law assault, is accentuated by virtue of it occurring in a family violence context, in my view, this is a comparatively low-level example of the crime of common law assault.
25 Over a four day period between 4 and 7 January, you repeatedly sent Ms McGrath harassing messages, referring to her as a ‘mutt’, referring to her as an unfit mother, threatening to have Brodie taken from her, and threatening to report her to various agencies. When it seems Ms McGrath had the temerity to take Brodie and seek respite with a friend in Perth, you had her and Brodie reported with the police as missing persons. You repeatedly called Ms McGrath, making all manner of threats. In my view, your conduct in relation to this offence, Charge 2 on the Indictment of using a carriage service to harass, is a concerning example of this offence. It occurs in the family violence context and the messages are highly offensive, degrading, coercive and threatening. The messages are intense in terms of their number and content and extent over a period of some days.
26 So incensed were you apparently at Ms McGrath’s utterly reasonable attempts to escape from your threatening coercive and controlling behaviour, at one point you sent a video of you holding a lit blow torch over some documentation, indicating that if she did not call you, you would burn the house down. This threat on your part, appropriately named extortion, represents a serious example of the family violence engaged in by you during this intense period of time. However, given that this crime is comprised of one act and comment by you where the thing demanded was limited to a call, it is comparatively not the most serious example of an extortion offence.
27 Upon returning to Victoria and to the property where you had both been living, in the ensuing hours on 7 January 2019, you engaged in a series of very serious criminal acts against Ms McGrath. Upon arriving, Ms McGrath observed that you had already damaged the internal walls of the property, together with some of her belongings. This together with your later actions in destroying her phone form the basis of the criminal damage charge. In the context of the family violence aspect to which I have referred, this represents, in my view, a concerning example of the offence of criminal damage. These actions, together with the recent history, must surely have made Ms McGrath extremely apprehensive in relation to your behaviour towards her.
28 As the argument ensued, all whilst your young child was home, and after you had begun recording the conversation and saying that you were going to make her life hell, you repeatedly struck Ms McGrath to the back, later in this episode grabbing her head and hitting it on the floor multiple times. These acts, forming the basis of Charge 6 on the Indictment, common law assault, represent concerning examples of this offence, occurring as they did in the family violence setting. As the argument moved into the loungeroom, you told Ms McGrath that you were going to kill her. I regard this as a particularly serious instance of your offending within this intense episode of family violence. Whilst highly distasteful and contextualised as I have said by family violence, your conduct in this regard was constituted by a single comment in the course of an argument. Comparatively therefore it is not the most serious example of the offence of threat to kill.
29 Your subsequent conduct in preventing Ms McGrath from leaving the property represents, in my view, a significant example of the crime of false imprisonment, Charge 8 on the Indictment. Clearly, you detained
Ms McGrath and prevented her from leaving over some period of time and in the context of the family violence setting must be seen as a serious offence. During this period, you approached Ms McGrath with a lit blow torch which accentuated, in my view, the gravity of this particular offence.
30 Globally, I regard your conduct in relation to Ms McGrath as a serious example of family violence, due to the reasons I have described. Notwithstanding your apparent protestations to others, your behaviour as I have described it was completely and utterly indefensible. The community rightly expects a penalty which reflects condemnation of your abhorrent behaviour towards your then partner.
31 Sadly, your serious offending did not end with your arrest on 8 January 2019. Over the course of the days and weeks that followed, you demonstrated an inability it seems, to accept the gravity of your predicament, and a refusal to comply with Court mandated restrictions on your behaviour. Notwithstanding that you were incapacitated by virtue of being in prison, over a period of approximately three weeks, you attempted to pervert the course of justice by contacting family and friends in an effort to persuade Ms McGrath not to pursue her intervention order. Your efforts in this regard were sustained over a period of some weeks, and determined, as evidenced by your multiple contacts of individuals to affect this purpose. The gravity of this particular crime is of course reflected in the statutory maximum penalty of 25 years’ imprisonment. That your attempt to pervert the course of justice occurred within the family violence context accentuates the gravity of this offending. You persistently breached the Intervention Order taken out for
Ms McGrath’s protection between 17 January and 6 February, and again when that order was varied to seek further protections for
Ms McGrath, you again persistently breached that order between 7 and 23 February 2019. Your breaches of these Intervention Orders, Court orders put in place to protect your victim, is particularly concerning. The community is rightly troubled that the tools used to protect vulnerable individuals are so often ignored.
32 Whilst your conduct in relation to attempts to contact Ms McGrath subsequent to your arrest are serious and concerning, I accept that they occurred within a relatively intense timeframe and ceased in late February 2019. There is no evidence before me that you continued this serious conduct after that date.
Personal Circumstances
33 You are now 32 years of age. You are the oldest of three siblings. You have a 28 year old sister and a 26 year old brother. You were raised in Reservoir by your parents, both now in their mid-fifties, who remain married. Your father worked as a truck driver and then for a bifold door company until 2012 when he had surgery to remove a brain cyst, which left him with memory impairments and being unable to work or drive a car. He also has had kidney cancer. Your mother has also suffered ill health, previously having been found to have a brain growth which has been treated. She is now a full time carer for your father. You have described your childhood as being good, with your father being the primary provider, and your parents giving their children most things that they wanted. You have described a large extended family, with some 15 cousins. You pursued your primary and secondary schooling in your local area, leaving school during Year 12 to commence full time work. You then obtained work as a refrigeration mechanic, then worked at Visy for some three or four years, which enabled you to gain a printing apprenticeship some years later. In the meantime, you worked as a concreter. You had apparently pursued the printing apprenticeship due to concerns about the long term effects of concreting on your back, however, you found concreting to be more lucrative and the hours more flexible. Prior to your remand in custody in relation to these matters, you were working as a sub-contractor in this field, earning good money it seems.
34 You have reported having three relationships since your teenage years, your most recent with your victim in this matter, Ms McGrath. You commenced that relationship when you were aged 28, and in July 2017 your child, Brodie, was born.
35 In terms of your substance use history, you have reported using cannabis from the age of fifteen, but have not used this substance for the last five or six years. You have occasionally taken ecstasy and amphetamines beginning in your late teens or early twenties. Methamphetamine or ice has been the most problematic substance for you. You started using this highly problematic substance in your mid-twenties, around the time when your father was diagnosed with his serious medical condition. For the first six months after you commenced using ice, you would smoke it weekly, then twice weekly for the following two years. You then stopped using it about 18 months before you were remanded due to your partner becoming pregnant. You have reported using ice again probably six times after your son was born, and then in the few weeks before you were arrested, in the context of relationship discord with Ms McGrath, you resumed your former pattern of ice use. You attribute your offending in fact, in part to the effects of ice.
36 You have a criminal history which is both relevant and concerning. In December 2013 at the Heidelberg Magistrates’ Court, you received a 12 month Community Correction Order in relation to offences which included assault, make threat to kill, recklessly cause injury, criminal damage, and use carriage service to harass. The following year, in June 2014, you received a short jail term of two months’ imprisonment, for offences which included breach of Family Violence Intervention Order. Soon after that, in July 2014 at Heidelberg Magistrates’ Court, you received another Community Correction Order for offences which included breach of earlier Community Correction Order, contravention of Family Violence Intervention Order, stalking, threat to kill, and use carriage service to menace.
37 At your plea hearing, the prosecution provided police summaries in relation to your prior offending (Exhibit C). Acknowledging that those summaries do not necessarily reflect the precise factual basis upon which you were sentenced, it is clear from a perusal of those documents that your prior offending has a significant flavour of family violence. Your offending was against females with whom you had previously been involved, and there is a significant similarity to the offending for which you will now be sentenced. However, your last prior conviction dates from July 2014, some six years ago. Concerningly, when you were first assessed by psychologist, Dr Ann Davidson from Forensicare, on 29 June 2020, for the purposes of this hearing, you were “notably vague” when discussing your prior offending. According to Dr Davidson, you minimised your offences, suggesting that many charges looked worse than the behaviour that occurred. Dr Davidson was not in possession of the police summaries in relation to your prior offending when she first assessed you. Dr Davidson subsequently received those police summaries, and provided a further psychological report dated 10 September 2020, her initial report being dated 10 August 2020. In that subsequent report, having considered the details in relation to your prior criminal history, Dr Davidson notes your use of intimidation and coercion in several relationships, your history of threats to harm yourself and others to coerce your previous partner to comply with your wishes, your implied or overt threats to kill in numerous cases, and your broader violence supportive attitudes. According to Dr Davidson, “Overall, these summaries point to a pattern of coercive, controlling behaviour and violence within his intimate familial relationships.”[4]
[4]Dr Ann Davidson, Psychological Court Report (10 September 2020), paragraph 5
38 You were arrested and remanded in custody on 8 January 2019. You have been in custody since that time, a period of 626 days up to but not including today. I accept that this represents a significant period to be on remand. You at least for some time contested these allegations, taking the matter to a contested committal hearing on 31 July 2019, at which you entered a plea of not guilty in relation to the charges. You eventually resolved your matter to a plea of guilty on 26 November 2019, where the matter was then adjourned for a plea hearing on 29 May this year. It seems clear from a perusal of the relevant material provided on your behalf and otherwise obtained during these proceedings, that you have to some degree maintained a denial in relation to some aspects at least of your offending. Various psychological reports were provided on your behalf from Dr Aaron Cunningham, dated 7 March 2019, 14 November 2019 and 22 November 2019 respectively (Exhibit 1). Certainly between March and November of last year, you appear to have moved from a denial of assaulting your victim and view that you had been treated unfairly, to a view as at November last year, when this matter resolved to a plea of guilty, that you had accepted your situation and taken responsibility for your actions. According to Dr Davidson from Forensicare, when she discussed your offences with you on 29 June 2020, you indicated that the offending commenced with the victim hitting you outside the service station. You denied both the threats to kill and false imprisonment. You denied punching Ms McGrath at any time, failed to see how intimidating it would have been to have held a lit blow torch in her vicinity, and showed no concern for her welfare or the welfare of your infant son, Brodie, during the incident on 7 January 2019. You referred to your offending as “silly behaviour” and “just a little hiccup”. You also expressed similar sentiments which can perhaps most favourably be described on your behalf as offence minimisation to the individual who assessed you for suitability in relation to a Community Correction Order, as evidenced in the assessment report dated 6 August 2020.
39 I accept that you have now spent a considerable period of time in custody in relation to these matters, some 20 months. During that period you have either been located at the Melbourne Remand Centre or Ravenhall more recently. Prior to the COVID‑19 pandemic, you successfully undertook a number of educational and therapeutic courses, and I have had regard to the many certificates and statements tendered at your plea hearing (Exhibit 3). I was informed that you have been abstinent from drugs since being in custody, and in that regard I have considered the urinalysis results from February 2019 and May 2020, confirming this to be the case. Prior to the impact of COVID‑19, you were working as a billet in the area of horticulture. You were being regularly visited and supported by your parents and friends. A number of positive character references were tendered on your behalf (Exhibit 5), from both family and friends. Clearly, the people who know you speak very highly of you, and it is certainly a positive factor in terms of your rehabilitation that you appear to maintain the love and support of both family and friends. I understand and accept that upon your release, you plan to reside with your parents, and you have employment available to you. Again, these are positive matters in terms of your prospects of rehabilitation.
40 I also accept that the impacts of COVID‑19 have been keenly felt by you. Like all prisoners, since March of this year, you have been subject to significant restrictions on your movement within the prisons, and all contact visits with family and friends have been suspended. Employment and therapeutic activities and opportunities have been significantly curtailed. Significantly, all prisoners have no doubt lived with the anxiety of the likely consequences should COVID‑19 become entrenched within the custodial setting. As is now well known, COVID‑19 has now entered the prison setting, further exacerbating both the restrictions that I have described, and no doubt the attendant anxieties. I accept that your time in custody has been more onerous due to this unprecedented pandemic.
Sentencing Factors and Principles
41 In formulating an appropriate sentence in your case, I am required to have regard to various sentencing factors. I have already referred to the maximum penalties, the impact on your victim, and the nature and seriousness of your offending.
42 Your counsel did not submit that your moral culpability for your offending was reduced by virtue of any mental impairment, and in written submissions your counsel indicated that none of the well-known mental impairment principles articulated in Verdins’[5] case were being relied upon. Indeed, having considered the various psychological reports from Dr Aaron Cunningham, together with the two psychological reports from Dr Davidson of Forensicare, it is clear that you do not suffer from any cognitive impairments, psychiatric conditions, or any mental illness.[6] Particularly given your concerning and relevant criminal history, I regard your culpability for this current offending to be significant. Through your behaviour in relation to Ms McGrath, you again demonstrated your complete disregard for the personal autonomy of your intimate partner. Your behaviour was violent, coercive, intimidatory and completely indefensible.
[5]R v Verdins (2007) 16 VR 269
[6]Dr Ann Davidson, Psychological Court Report (10 August 2020), paragraph 43
43 I have taken into consideration the fact that you have pleaded guilty to these charges. Whilst you initially contested the charges, the matter resolved to a plea of guilty on 26 November 2019 and the matter was booked in for a plea hearing in May this year. Through your plea of guilty, your victim has been spared cross-examination at a trial, and the community has been saved the cost and delays associated with such an exercise. Whilst your matter resolved in November last year prior to the COVID-19 pandemic, your plea hearing has taken place after the onset of COVID-19. Particularly given the current public health concerns regarding the COVID-19 virus which would have impacted upon the practical management of a jury trial for the reasons I have outlined, I regard your plea of guilty as having substantial utilitarian value at the present time. In terms of the stage in proceedings at which you indicated an intention to plead guilty, you took this matter to a contested committal hearing in July last year. At the conclusion of the committal you pleaded not guilty, and your matter was listed for trial on 7 September 2020. As I have indicated, this matter resolved to a plea of guilty on 26 November 2019. Whilst to a certain degree it can therefore be considered a relatively early plea, I do not accept that yours was a particularly early plea of guilty in these circumstances. Nevertheless, for the reasons I have explained, a sentencing discount is warranted. Furthermore, given your ongoing issues in relation to minimisation of your offending at best, I am unable to make a positive finding in relation to any remorse on your part above and beyond the entering by you of your pleas of guilty.
44 Your counsel submitted that a further mitigatory allowance was warranted by virtue of the lengthy delay associated with these proceedings. It was submitted that you had indicated to this Court of your intention to plead guilty in November 2019, and yet had not been sentenced until now. It was submitted that this was a far more extended than normal period within this jurisdiction which has weighed heavily on you, warranting mitigation. When you resolved your matter to a plea of guilty at the end of November last year, your matter was adjourned for a plea hearing in late May this year. Your plea hearing ultimately took place on 9 June 2020. The matter was adjourned for an extended pre-sentence report in relation to your suitability for a Community Correction Order and a psychological report from Forensicare was ordered. Both of these reports routinely take at least six weeks to obtain. I accept that there has been to some degree a period of delay in relation to the provision of appropriate reports to enable your further plea hearing to take place on 15 September 2020. However, in my view, this delay is not inordinate. However, I am prepared to make a modest mitigatory allowance due to the delay and the resulting anxiety caused to you, particularly given the context of the COVID‑19 pandemic. I accept that you have awaited the finalisation of these proceedings in arduous circumstances in custody, for the reasons I have outlined.
45 In sentencing you, I must have regard to the only purposes for which a sentence may be imposed – denunciation of your conduct, protection of the community from you, the need to deter both you and others from committing such offences, facilitation of your rehabilitation, and just punishment. In relation to offending of this nature, significant weight must be attached to specific and general deterrence, denunciation and protection of the community. In imposing a sentence in your case, I must give practical expression to denunciation of your violent and concerning behaviour. Any sentence I impose must act as a deterrent to other likeminded individuals who resort to such violence and controlling behaviour, or who think that Intervention Orders upon them mean nothing. Given your relevant and concerning criminal history, together with the degree to which you appear to continue to minimise your offending, any sentence imposed must personally deter you from behaving in this manner in the future. Because of your criminal history and the nature of this offending, the community needs to be protected from you by both the incapacitation brought about by your imprisonment, followed by your appropriate reintegration with relevant specialist interventions in the community. Notwithstanding your criminal history and the nature of the offending, I regard your rehabilitative prospects as reasonable, if not somewhat speculative. Significantly you have maintained the love and support of family and friends. You are able to reside with your parents upon your release and you have employment available to you. You have demonstrated a productive employment history in the past.
46 Dr Davidson from Forensicare undertook a risk assessment of you, particularly in the area of the risk of spousal assault using the relevant risk assessment tool described by her in her latest report dated 10 September 2020. Dr Davidson concluded that you presented with a high risk level of future violence against intimate partners and family members. This risk has been contained whilst you have been in custody, but the underlying risk markers remain and are likely to remain present without treatment. According to Dr Davidson, you require an intensive program of treatment and supervision to mitigate this risk. Such recommended interventions include programs addressing violence, substance abuse and interventions in relation to underlying and apparently entrenched behaviours and attitudes. On a positive note, whilst you appeared to minimise your offending during your assessment with Corrections Victoria, you were able to identify the precursors to your violent behaviour and you responded well to the assessor challenging your minimisations of responsibility. You were able to articulate a degree of insight with respect to how your substance abuse has adversely affected your behaviour. Notwithstanding your problematic history in relation to compliance with Community Correction Orders, the most recent assessment concluded that you now present with a better capacity to reap the benefits of ongoing treatment and rehabilitation, following your longest custodial term, during which you have matured in age. The assessment concludes with a comment that your prospects appear to be positive in relation to understanding the seriousness and impact of your offending behaviour.
47 At your plea hearing on 15 September 2020, I was informed that in recent times, with the assistance of solicitors, you have now settled all financial and property matters with Ms McGrath in relation to your previous relationship and there are now ongoing discussions between legal representatives in relation to the possibility of future supervised access with your son, Brodie, subject of course to your release from prison. I accept that these recent endeavours on your part reflect your ability to now act appropriately in relation to the consequences of the end of your relationship and future arrangements in relation to your son. Whilst you clearly have a substantial rehabilitative road ahead of you, for the reasons that I have articulated, I am satisfied in all the circumstances that your prospects of rehabilitation are at least reasonable, subject to appropriate specialist interventions.
Respective Submissions
48 Your counsel submitted that in all the circumstances a sentence of imprisonment followed by a Community Correction Order would appropriately reflect the various sentencing factors and purposes in this case. As I understood the revised prosecution submissions in this matter, either a term of imprisonment incorporating a non-parole period or a combined sentence of imprisonment and a Community Correction Order involving a further term of imprisonment would be within range. It was acknowledged by the prosecution that a combined sentence of imprisonment with a Community Correction Order may assist in your rehabilitation.
Sentence to be Imposed
49 Ultimately, I have concluded that all of the relevant sentencing factors and purposes can be appropriately reflected in a sentence of imprisonment combined with an appropriately tailored Community Correction Order. Whilst I acknowledge that you have now served a significant period of time in custody on remand, in my view, that period is insufficient to reflect the gravity of your conduct and the need to impose a sentence which reflects the sentencing purposes of denunciation, general deterrence, specific deterrence and just punishment. In my view, an appropriately tailored Community Correction Order will best facilitate your rehabilitation and future reintegration back into the community.
50 In formulating an appropriate sentence in your case, whilst there is a need in my view to reflect the distinct nature of your criminality through cumulation in any sentences of imprisonment, I have had regard to the overriding principle of totality.
51 Mr Arceri, I am now up to the portion of my sentencing remarks where I will be passing sentence in relation to each of the charges faced by you and to which you have pleaded guilty.
52 On Charge 1, recklessly causing injury, you are convicted and sentenced to 5 months' imprisonment.
53 On Charge 3, common law assault, you are convicted and sentenced to 3 months' imprisonment.
54 On Charge 4, intentionally damaging property, you are convicted and sentenced to 3 months' imprisonment.
55 On Charge 5, extortion, you are convicted and sentenced to 9 months' imprisonment.
56 On Charge 6, common law assault, you are convicted and sentenced to 6 months' imprisonment.
57 On Charge 7, make threat to kill, you are convicted and sentenced to 10 months' imprisonment.
58 On Charge 8, false imprisonment, you are convicted and sentenced to 18 months' imprisonment. This is the base sentence.
59 On Charge 9, attempting to pervert the course of justice, you are convicted and sentenced to 12 months' imprisonment.
60 On Charge 10, persistent contravention of a family violence intervention order, you are convicted and sentenced to 6 months' imprisonment.
61 On Charge 11, persistent contravention of a family violence intervention order, you are convicted and sentenced to 6 months' imprisonment.
62 I direct that 2 months on Charge 5, 1 month on Charge 6, 2 months on Charge 7, 3 months on Charge 9, 1 month on Charge 10 and 1 month on Charge 11 be served cumulatively upon each other and upon the base sentence imposed on Charge 8, making a total effective sentence in relation to these charges of 28 months' imprisonment.
63 I declare that you have served a period of 626 days by way of pre-sentence detention and this amount is to be deducted from your sentence. Pursuant to s.11(2A) and s.44(1) of the Sentencing Act 1991, in addition to the sentences of imprisonment, in relation to all of these charges, I order that you undergo and complete a Community Correction Order upon your release from prison in approximately 7 months' time. The order will operate for a period of 2 years.
In addition to the mandatory conditions, there will be a number of additional conditions. The mandatory conditions are as follows;
· You must not commit another offence for which you could be imprisoned during the time the order is in force;
· You must comply with any obligation or requirement prescribed by the relevant regulations;
· You must report to and receive visits from the Secretary or his/her delegate;
· You must report to the nominated Community Corrections Centre within two clear working days of the order starting;
· You must let a community correction officer know within two clear working days of your change of address or job;
· You must not leave Victoria without first getting permission to do so; and
· You must obey all lawful instructions from and directions of the Secretary or his/her delegate.
64 The additional conditions will be as follows;
· That you be supervised, monitored and managed as directed by the Secretary;
· That you undergo treatment and rehabilitation in the form of assessment and treatment including testing for drug abuse or dependency;
· That you undergo treatment and rehabilitation regarding any program that addresses factors related to your offending behaviour;
65 On Charge 2, which is a Commonwealth charge of use carriage service to harass, you are convicted and sentenced to 3 months' imprisonment, this period to be served concurrently with the other State sentences imposed this day.
66 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have imposed a total effective sentence of 4 years and 6 months' imprisonment with a non-parole period of 3 years and 4 months' imprisonment.
67 Finally, I will make the 464ZF order sought by the prosecution. Bear with me for a moment please. That is an order for the taking of a scraping from your mouth, Mr Arceri, which is a sample to be kept on the relevant police database. I am making this order because, in my view, the making of the order is justified due to the seriousness of the circumstances of the offending, your prior convictions, the order is not opposed and the granting of the order is in the public interest. I must inform you, Mr Arceri, that if, at the time of the request being made for the sample, you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
68 Yes. Now, firstly, Mr Pickering, are there any ambiguities or issues in relation to the sentence?
69 MR PICKERING: I cannot find any, Your Honour, and I have added up all the figures again and they all add up as far as I can tell.
70 HIS HONOUR: Yes. Thank you. Mr Tatti, any issues from your perspective?
71 MR TATTI: Not that I can see, Your Honour.
72 HIS HONOUR: Yes. Mr Arceri, can you see and hear me?
73 OFFENDER: Yes, I can.
74 HIS HONOUR: All right. What this means for you, Mr Arceri, essentially is this; you have been sentenced to a total effective sentence of 28 months' imprisonment. That sentence covers all of the offences including the Commonwealth charge of using a service to harass because it is to be served concurrently.
75 Off the 28 months, comes 626 days. So that gets deducted from your sentence. The balance is to be served by you and once that balance has been served, you will be released and then subject to a Community Correction Order which will run for 2 years and I read the conditions out to you.
76 I can only impose the Community Correction Order if you agree to the Community Correction Order being imposed and for you to agree to it, you need to confirm that you understand what is involved in the rigours of doing a CCO. With those conditions, I need to inform you of this; if you do not comply with the order by breaching any of the conditions which includes reoffending, committing an offence punishable by jail, you can be brought back to Court firstly for breaching the order for which you can receive a penalty of imprisonment but also you can be resentenced in relation to the original offences. Do you understand that?
77 OFFENDER: Yes, I do.
78 HIS HONOUR: Knowing all of that, do you agree to comply with the order?
79 OFFENDER: Yes. Yes, Your Honour.
80 HIS HONOUR: Yes. All right. Thank you for that.
81 Mr Pickering and Mr Tatti, in this remote world that we live in, as I understand it, there is capacity for an offender to give consent to the making of a Community Correction Order by orally confirming that to be the case and then a notation is made on the CCO that it has been agreed to and consented to, I should say, through audio-visual link purposes. Firstly, Mr Pickering, are you aware of that process being available?
82 MR PICKERING: I was not, Your Honour. I was under the impression that we were using a hybrid system which is that a document would be sent out, signed and then sent back but I am certainly content if that is sufficient for Your Honour because Mr Arceri has very clearly consented to it.
83 HIS HONOUR: Yes, indeed. Pardon me for a moment. Yes, indeed.
84 So, Mr Tatti, this is probably a question without notice for you but it certainly is a procedure that is available at the County Court. Other judges are doing it, I have seen documentation, it is occurring both in relation to CCOs but also bail documents as well just to accommodate the world that we live in. Are you content for the CCO to be marked as been consented to through audio-visual link facilities on behalf of your client?
85 MR TATTI: I am, Your Honour. I believe that the provision that allowed that is in the Evidence Act 2008.
86 HIS HONOUR: Yes.
87 MR TATTI: It is happening across the Supreme Court as well in relation to other orders. So there is a provision in there that permits it but, yes, I am certainly content with that.
88 HIS HONOUR: Yes. All right. Well, in that case, that is what will happen. I will sign the document and there will a notation made in relation to - yes, thank you.
89 Yes. All right. I think I have covered everything. Let me just double-check. Yes. Any other orders that I need to make, Mr Pickering?
90 MR PICKERING: No, Your Honour.
91 HIS HONOUR: Mr Tatti, have I covered everything?
92 MR TATTI: Yes, Your Honour.
93 HIS HONOUR: Yes. Thank you. Adjourn the Court please.
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