Director of Public Prosecutions v Arthur (a pseudonym)
[2022] VCC 1577
•21 September 2022; 26 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| STUART ARTHUR (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 22 August 2022 | |
DATE OF SENTENCE: | 21 September 2022; 26 September 2022 | |
CASE MAY BE CITED AS: | DPP v Arthur (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1577 | |
REASONS FOR SENTENCE
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Subject: Kidnapping and others
Catchwords: Guilty plea –– violent abuse of mother held in her home against her will – relevant criminal history – history of mental illness - remorse
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Farmer v The Queen [2020] VSCA 140; DPP v Smeaton [2007] VSCA 256; Wati Marrah [2014] VSCA 119; Worboyes [2021] VSCA 169; Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170; The Queen v Biba [2021] VSC 327; Bugmy v The Queen (2013) 249 CLR 571; R v Postiglione (1997) 145 ALR 408
Sentence: 3 years and 9 months’ imprisonment, non-parole period of 2 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Pezzimenti | Office of the Director of Public Prosecutions |
| For the Accused | Mr T. Sullivan | Martin Middleton Oates Lawyers |
HIS HONOUR:
1Stuart Arthur[1] you have pleaded guilty to:
(a) One charge of Common Assault (Charge 1);
(b) Three charges of Make Threat to Kill (Charge 2, 6 and 9);
(c) Four charges of Recklessly Cause Injury (Charge 3, 5, 7 and 10);
(d) One charge of Kidnapping (Charge 4); and
(e) Two charges of False Imprisonment (charge 8 and 11); and
(f) One charge of Persistent Contravention of a Family Violence Intervention Notice (Charge 12).
[1] A pseudonym.
Circumstances of offending
2The circumstances of your offending are set out in the summary of prosecution opening.[2] They are agreed facts.
[2] Exhibit A.
3On 1 April 2021, at your request, your mother had picked you up from Nhill and taken you to her Mildura home where you stayed with her.
10 April 2021 (charges 1, 2, 3, 4, 5, 6, 7 and 8)
4On 10 April 2021, around 2 AM, you struck her with a baton to wake her. You said you wanted to be driven somewhere and told her to pack her bags. As she packed, you kicked her (part of Charge 1: Common Assault).
5She got out of the house and tried to get to her neighbour. When you caught up to her you told her she’d be dead unless she got back inside (Charge 2: Make Threat to Kill).
6You pushed her and she fell, injuring her elbows and knees (Charge 2: Cause Injury Recklessly).
7When she got up you pushed her back towards her house and forced her into the house against her will (Charge 4: Kidnapping).
8You grabbed her hair and dragged her towards the house (part of Charge 1: Common Assault) and told her to get inside. She said she would.
9She lost her footing and fell. While she was on the ground, you kicked her several times to the legs and chest, causing bruising (Charge 5: Causing Injury Recklessly).
10You dragged her by her hair into the house (part of Charge 1: Common Assault).
11Inside, you struck your arms (part of Charge 1: Common Assault) and closed and locked the door.
12In the kitchen, you picked up a Stanley knife, held it to her face and threatened to cut her into little pieces (Charge 6: Make Threat to Kill). You put the knife to her neck which caused a cut (part of Charge 7: Causing Injury Recklessly).
13Over a number of hours, you punched her a number of times with a clenched fist, causing her nose and mouth to bleed, and you kicked her legs and stomach causing further bruising (part of Charge 7: Causing Serious Injury Recklessly).
14At some stage, you forced her into a room at the rear of the garage where you denied her request for water. She said it felt like you kept her there for an hour (Charge 8: False Imprisonment).
15Next morning, around 9 AM, you demanded your mother drive you to Red Cliffs against her will (part of Charge 4: Kidnapping). When you arrived, you went into a house and returned with some methyl amphetamine. You told her to drive to Sea Lake. There, you both slept for a couple of hours.
16You both woke early next morning. You drove the car down a dirt road, told her to get out of the car, take off her shoes and socks and start walking. When she did, you followed her in the car. When she started to run, you threatened to kill her if she did not stop (Charge 9: Make Threat to Kill). You told to get back into the car and you drove back to Mildura. During the trip, you hit her with a baton to the face a number of times, causing an injury around her right eye (Charge 10: Recklessly Cause Injury).
17When you got home, you told her, because of her bruises, she could not to leave the house and you locked all the windows (Charge 11: False Imprisonment).
18Next morning, you woke your mother with a cup of tea and a slice of toast. You told her you loved her. You told that she was pretty black all over but the bruises would fade in a couple of days.
19On 19 April 2021, your mother called the medical clinic to book an appointment with her GP. You drove her to the clinic. Before she got out of the car you reminded her not to forget the false explanation she was to give for her injuries.
20Your mother had bruises on her arms and legs and her doctor called an ambulance to take her to Mildura Hospital.
21At the hospital, your mother disclosed your offending to a social worker who made a report to police.
22Police arrested you on 28 April 2021 at your mother’s home. You were injured in the course of your arrest and taken to Mildura Hospital for treatment.
23Next day, police interviewed you.
24You denied the allegations of assault and said your mother was a liar. You said she had fallen over three to four times.
25You said you had been using methylamphetamine and smoking cannabis daily.
26You were charged and remanded in custody.
27When your mother learned you had been taken into custody, she discharged herself from hospital.
28I received photographs of her injuries which show significant bruising to her to torso, arms and legs.[3]
[3] Exhibit B.
29After a contested committal hearing, on 7 September 2021, you were committed to stand trial in this court.
30Shortly after, your lawyers entered into discussions with the office of the Director of Public Prosecutions and, on 10 March 2022, this court was told you would plead guilty to the charges on the indictment.
31Each of the episodes of assault, making threats, causing injury, kidnapping and false imprisonment contravened a family violence intervention notice which was served on you on 27 September 2019 (Charge 12: Persistent Contravention of a Family Violence Intervention Order – Three or More Breaches During a 28 Day Period).
Criminal record
32You have admitted an extensive criminal record of summary court appearances in Victoria and New South Wales, commencing in 1983, for dishonesty, drug and driving offences.[4]
[4] You appeared once, in the County Court at Melbourne, on 1 February 1998 when you were sentenced to 12 months’ imprisonment, wholly suspended, for burglary and theft.
33Relevantly, on 27 July 2016, at Mildura Magistrates’ Court, you were sentenced to an aggregate sentence of 3 months’ imprisonment for making a threat to kill and other charges and, on 29 May 2018, you were again sentenced to an aggregate sentence of 3 months’ imprisonment for making threat to kill and other charges.
Victim impact statement
34Your mother was present for the proceedings against you. Her victim impact statement was read to the court.[5]
[5] Exhibit C.
35She wrote”
When you’ve been bashed, really bashed, you can’t put up any defence anymore. You give up. After being hit and hit and hit you don’t care anymore. I just wanted to get out of it, I just wanted to die.
36She was terrified of you.
37She believes only prayer saved her.
38As a result of your abuse of her, she suffers flashbacks and sleeplessness. She is afraid of you and scared to leave her home.
Personal circumstances
39You were born in May 1964. You were 56 years old when you offended. You are now 58.
40Your personal circumstances are set out in the reports of Dr Mirabel McConchie, psychologist[6] and Dr Linda Borg, neuropsychologist.[7]
[6] Exhibit 2.
[7] Exhibit 3.
41You were born at Melbourne. You have an older brother and two sisters.
42Your parents separated when were young and your father remarried. He died when you were approximately 18 years old.
43From the beginning, you had a conflictual relationship with your mother.
44You told Ms McConchie she abandoned you and your siblings and you were sent to live with a maternal aunt.
45You went to Preston Primary School and struggled with reading. You dropped out after one year of secondary school.
46You worked for your uncle who was an upholsterer and, when you were 18 years old, you met Abby[8]. You married her shortly afterwards. With her you have a daughter, who is now 38, and living in Newcastle with four children.
[8] A pseudonym.
47Abby died in April 2021 from cancer.
48In recent years, you have lived mainly with your mother and brother.
49You reported, at 15, you started hearing voices.
50You have an established diagnosis of paranoid schizophrenia.
51You told Ms McConchie your relationship with your mother is “awful” and she is the biggest trigger for your distress and exacerbation of your psychotic symptoms.
52You said you had been struggling emotionally with the loss of your wife when you offended. You said when your mother laughed at you about being a widower you “lost it”.
53You also said you were using cannabis and amphetamines and were not taking your antipsychotic medication.
54You have had life-long paranoid ideas about your mother. They include beliefs she was stealing from you and dobbing you into police.
McConchie opinions
55As Dr McConchie wrote of you:
[his] beliefs of persecution by his mother may range from accurate to entirely delusional, and are entwined with other psychotic experiences of auditory command hallucinations of his mother’s voice telling him he is useless and is no good. Mr Arthur unravels quickly in his mother’s presence…” [9]
[9] Exhibit 2, p.5.
56In Dr McConchie’s opinion, your paranoid symptoms:
…have had a profoundly negative effect on (your) capacity to engage in meaningful employment, and, of most importance, have dictated a series of behaviours in (your) lifetime which have resulted in constant contact with the criminal justice system.[10]
[10] Exhibit 2, p.5.
57You told Dr McConchie, when you do not take your medications your mood significantly declines and your psychotic symptoms intensified. You acknowledged, had you been your taking medication, you would not have been so aggressive towards your mother.
58You said you are sorry for your offending and you want no contact with your mother.
59In Dr McConchie’s opinion, to reduce the risk of your reoffending, you should have no contact with your mother and you must be compliant with your medications.
60You told Ms McConchie you suffered serious injuries in a motorbike accident when you are about 30 years old.
61She queried whether you may have low cognitive function and recommended a neuropsychological investigation.
Borg Opinions
62Dr Linda Borg, a neuropsychologist, assessed you on 27 May 2022.
63Hospital records show you were admitted to Austin Hospital from 22 March until 23 April 1992, when you discharged yourself against medical advice, for treatment of numerous orthopaedic injuries. There was no record of any head injury.
64During your presentation to Dr Borg, your speech and thought were slow and your spelling and reading fell at Grade 3 level. You are better at processing and responding to visual information.
65In her opinion, you are likely of low average to average intelligence.
66She concluded there was insufficient evidence to suggest you have an intellectual disability or acquired brain injury.[11]
[11] Exhibit 3, at [33].
67In her opinion, considering your history relapse into paranoia when you do not take your medication, there is a significant and ongoing risk of harm toward your mother. In her words, living with her in the future is “untenable”.
Circumstances of Incarceration
68Because of the nature of your crimes, you have been held in a protection unit at Ravenhall prison.
69There have been lockdowns about half a dozen times. You have had no visits, no telephone calls and you do not engage with other prisoners. You do have work as a billet.
70You hope for transfer to a lower security prison, with less confinement and isolation, when you are sentenced.
71And, when you are released, you hope to move to New South Wales, near to your daughter and grandchildren.
Defence Submissions
72Mr Sullivan, who appeared on your behalf, in written[12] and oral submissions, acknowledged crimes were serious and a prison term must follow.
[12] Exhibit 1.
73He told me, in January 2021, you sustained a severely broken leg which required surgical repair, after you were hit by a car driven by a former partner. You did not report this incident of domestic violence.
74After your release from hospital, you stayed with your mother and, when tensions developed between the two of you, you went to New South Wales to visit your daughter. You were involved in a motor car accident near Yass and your mother took you Mildura, and then Nhill, where you stayed with “junkie” friends. On 2 April, she picked you up and brought you home.[13]
[13] Transcript Record of Interview of Accused Stuart Arthur, pp.35-7.
75It was in the context of this turmoil and chaos you relapsed into substance abuse.
76In mitigation of penalty, Mr Sullivan relied on:
(a) Firstly, your guilty plea, made soon after the committal hearing, for its utilitarian value, greater during the COVID-19 pandemic;[14]
(b) Secondly, your remorse;
(c) Thirdly, your background of social deprivation and your mental illness;
(d) Fourthly, the additional hardship of your incarceration due to:
(i)The COVID-19 impact of risk of infection, lockdowns, removal of visits and cancellation of some programs and activities; and
(ii)The increased isolation of protection confinement.
[14] Worboyes [2021] VSCA 169, at [35].
77He submitted, in prison, with your work, medication compliance and enforced separation from your mother, you are developing an understanding and acceptance, in order to reduce the risk of your reoffending, you will never see your mother again.
78He submitted, with medication compliance and separation from your mother, your prospects of rehabilitation are reasonable.
Prosecution Submissions
79Ms Pezzimenti, who appeared for Director of Public Prosecutions, in helpful oral submissions contended, because of the prevalence of violence by men against women in family relationships, general deterrence is a primary sentencing consideration.
80She submitted a custodial term, which strongly condemns family violence, is required.
81Relying on Dr Borg’s opinion that you are significant risk of harm toward your mother, she submitted I should be wary about your prospects of rehabilitation.
82She accepted your guilty plea has utilitarian value and, with your expressions of remorse, is evidence of some contrition.
83She referred me to a number of appellate authorities of principle and sentences of this court which I have used as guidance to decide the appropriate sentences for you.
Consideration
84The maximum penalty for the offence of kidnapping is 25 years’ imprisonment. Making a threat to kill carries a maximum penalty of 10 years’ imprisonment. And common-law assault carries a maximum penalty of 5 years’ imprisonment.
85Kidnapping is a Category 2 offence. Imprisonment is the legislated sentencing norm.[15]
[15] Sentencing Act 1991 (Vic), s 5(2H); Farmer v The Queen [2020] VSCA 140.
86Family violence crimes are very serious. Courts must impose sentences which strongly denounce violence within a familial relationship.[16]
[16] Wati Marrah [2014] VSCA 119, [25].
87In DPP v Smeaton the Court of Appeal said:
Violence, and in particular violence by men against women as a means of control… is a prevalent and even critical social evil.… The perpetrator… not uncommonly expresses remorse… after a violent assault, but nevertheless seeks to blame the victim for causing the attack.[17]
[17] [2007] VSCA 256, at [21].
88At different times, you effectively held your mother hostage in her own home, and her car, and battered her when she annoyed you.
89Your physical and verbal aggression against her was shocking and shameful. She was elderly and vulnerable. As she said, she couldn’t defend herself against you. Her vulnerability and your breach of her trust make your offending objectively very serious.
90The degree of violence of your assaults upon your mother was less extreme than in some cases of domestic abuse.
91In saying that, I do not lose sight of the fact you did injure her and caused her considerable psychological harm.
92In my view, apart from the incident when you threatened your mother with a knife, your threats to kill were more abusive than menacing.
93At three different times, you unlawfully detained your mother against her will, treating her as your prisoner. In the kidnapping episode, you used force when you dragged her back into her house and, next day, with threat of force, you got her to drive you to Red Cliffs.
94Again, while this conduct was appalling, the level of force used or threatened was not so intense as force used in other kidnapping cases.
95The Family Violence Intervention Order Notice did not prevent you from living with her, but it did prohibit family violence.
96Overall, I assess your offending to fall somewhere between the middle and bottom categories for offending of the type.
97You told police your mother failed to protect you from her abusive partners when you were young, and she stole from you. You told Ms McConchie she was taunting you when you abused and detained her. Which of these beliefs are accurate and which are delusional is impossible to tell.
98You acknowledge you had relapsed into paranoia because you had stopped taking medication and were using illicit drugs.
99And, you admitted, if you had complied with your medication, you would not have mistreated your mother as you did.
100At some point your thinking became clearer and your behaviour turned, when you took her a cup of tea and a slice of toast, after two days of cruel hostility.
101In court, you told your mother you are sorry.
102You seem to understand, for her safety, you can never see her again.
103I am satisfied you are remorseful.
104I am also satisfied, provided you remove yourself completely from your mother’s life and you comply with the medication, your prospects of rehabilitation are reasonable.
105You have been held in remand custody since your arrest on 29 April 2021.
106You have endured the COVID-related hardships of the risk of infection, lockdowns, no visits and reduced programs.
107You have endured the additional hardship of the increased isolation and confinement of a protection prisoner.
108Not all of your remand time can be reckoned as presentence detention.
109On 19 May 2021, you were sentenced to 2 months and 14 days’ imprisonment and, on 7 October 2021, you were sentenced to 90 days’ imprisonment.
110It was agreed you have available to you 368 days of presentence detention.
111There are a number of mitigating factors which moderate the sentences I will impose.
112You are entitled to a substantial sentencing benefit for your guilty plea. It has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[18] It has also saved your mother the anxiety of giving evidence in your prosecution.[19]
[18] Worboyes [2021] VSCA 169, at [35] and [39].
[19] Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170.
113You are also entitled to some moderation of your sentence for the public-health pandemic related hardship of prison, due to removed prison visits, reduced prison programs and increased isolation, with the risks of COVID-19 infection, during the pandemic.[20]
[20] The Queen v Biba [2021] VSC 327, at [38].
114Your mental illness and background of disadvantage are relevant to your sentencing.
115While your counsel disavowed reliance on Verdins or Bugmy principles, he submitted your background is an important mitigatory circumstance because it helps to explain your otherwise seemingly inexplicable offending.
116That you appeared to experience some kind of epiphany when you woke your mother with tea and toast and told her you loved her, after putting it through the two-day ordeal, indicates your offending, while disgraceful, was irrational.
117Relying on Dr McConchie’s opinions, which were not challenged, I accept your mental illness has contributed to your offending,[21] but the reduction in your moral culpability is qualified by the fact that, when you offended, you were aware of the risk of relapse into paranoia if you did not take your medication.
[21] Exhibit 2.
118I also accept that your background of disadvantage, learning difficulties and mental illness impacted your ability to foster a normal filial relationship with your mother. They also impacted your ability to develop a work ethic.[22]
[22] Bugmy v The Queen (2013) 249 CLR 571.
119I accept you are genuinely remorseful for your actions.
120While I accept, if you do not comply with treatment, you are a high risk of reoffending, I do regard your remorse, and your insight into the consequences of relapse, as positive factors for your reformation.
121To promote your rehabilitation, I will fix a shorter than usual non-parole period to give you the opportunity to continue your treatment in the community under supervision.
122Because you have previously been sentenced to a term of imprisonment for the offence of make threat to kill offences on two occasions, you fall to be sentenced as a serious violent offender on the charges now before the court.
123In sentencing you on those charges, I must regard protection of the community from you as the principal purpose for which the sentence is to be imposed.[23] I may impose a disproportionate sentence to achieve this purpose.[24] There is also a statutory presumption in favour of cumulation of your sentences for serious violent offences.[25]
[23] Sentencing Act 1991 (Vic), s 6 D(a).
[24] Sentencing Act 1991 (Vic), s 6 D(b).
[25] Sentencing Act 1991 (Vic), s 6B and 16(1A)(c).
124I am satisfied it is not necessary to impose a disproportionate sentence to protect the community. You know, and appear to accept, you will never see your mother again. I am satisfied it is not necessary to impose a disproportionate sentence to protect her, or the wider community.
125I am satisfied the total cumulation of the serious violence offences would result in a disproportionate sentence. I will order part cumulation of offences, where it is required to reflect additional criminality, and make orders which ensure your overall sentence is proportionate to your total offending.
126As you are to be sentenced for a number of offences, applying the totality principle, I must ensure your overall sentence is “a just and appropriate measure of your total criminality”.[26]
[26] R v Postiglione (1997) 145 ALR 408, at 416-7.
Sentence
127Mr Arthur, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
128Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) On Charge 1, you are convicted and sentenced to 6 months’ imprisonment;
(b) On Charge 2, you are convicted and sentenced to 6 months’ imprisonment;
(c) On Charge 3, you are convicted and sentenced to 6 months’ imprisonment;
(d) On Charge 4, you are sentenced to 2 years and 6 months’ imprisonment;
(e) On Charge 5, you are sentenced to 15 months’ imprisonment;
(f) On Charge 6, you are sentenced to 9 months’ imprisonment;
(g) On Charge 7, you are sentenced to 12 months’ imprisonment;
(h) On Charge 8, you are sentenced to 15 months’ imprisonment;
(i) On Charge 9, you are sentenced to 6 months’ imprisonment;
(j) On Charge 10, you are sentenced to 12 months’ imprisonment;
(k) On Charge 11, you are sentenced to 15 months’ imprisonment; and
(l) On Charge 12, you are sentenced to 6 months’ imprisonment.
129The sentence of 2 years and 6 months’ imprisonment on Charge 4 – kidnapping, is your base sentence.
130I direct:
(a) One month of your sentence on Charge 1;
(b) One month of your sentence on Charge 3;
(c) 2 months of your sentence on Charge 5;
(d) 2 months of your sentence on Charge 6;
(e) 3 months of your sentence on Charge 7;
(f) 2 months of your sentence on Charge 8;
(g) 3 months of your sentence on Charge 10; and
(h) one month of your sentence on Charge 11
be served cumulatively on your base sentence and each other.
131Your total effective sentence is 3 years and 9 months’ imprisonment.
132To mitigate punishment and give you the opportunity to advance your rehabilitation in the community under parole supervision, I fix a minimum period of 2 years and 3 months before you are eligible for parole.
133Pursuant to section 18 of the Sentencing Act 1991 (Vic), I declare you have already served 368 days of your sentence by way of presentence detention.
134While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 5 years and 3 months’ imprisonment and fixed a minimum non-parole period of 3 years and 9 months.
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