Director of Public Prosecutions v Baker
[2024] VCC 2058
•9 December 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-01735
CR 23-01270
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN BAKER |
‑‑‑
JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 November 2024 5 December 2024 |
DATE OF SENTENCE: | 9 December 2024 |
CASE MAY BE CITED AS: | DPP v Baker |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2058 |
REASONS FOR SENTENCE
Subject: Criminal law - sentence
Catchwords: pleas of guilty to one charge of intentionally causing injury, one charge of intimidation of a law enforcement officer, one charge of common law assault and one summary charge of unlicensed driving – repeated and violent acts causing range of injuries over protracted time – in company – likely influence of drugs – arrest in context of aggression and threats towards police – required sedation – previous convictions for violence – Bugmy issues – parity with co-accused.
Cases Cited: Bugmy
Sentence: 3 years and 6 months with npp 2 years
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Arcici | DPP |
For the Accused | Mr J.Lavery Kurani Lawyers |
HER HONOUR:
1Nathan Trevor Baker, you have pleaded guilty to charges on two indictments. On CR2301270, you have pleaded guilty to one charge of causing injury intentionally. On indictment CR2401735, you have pleaded guilty to one rolled up charge of intimidation of a law enforcement officer, and one charge of common law assault. You have also pleaded guilty to one charge of unlicenced driving.
2I shall be sentencing you to a prison term, comprising a head sentence and a non-parole period, and I will now explain my reasons. All but the summary charge arose from the same incident on 20 May 2022.
3In the early hours of that day, just before 1.10 am, Andrew Bourne, a 41-year-old man, rode his pushbike to a service station in Melton. He parked his bike outside the store and went inside to buy some items. While he was inside, you and your brother, Shayden Baker, arrived, driving a small, blue and white motorcycle. You were the driver, and your brother was the pillion passenger. You were charged with unlicensed driving of that motor bike.
4Mr Bourne, who was known to you, came out and began placing items into his backpack. You yelled, 'Stop' to him. You then rode up to him and knocked his bike to the ground. You both got off the motorcycle and walked towards Mr Bourne.
5You followed him around the area and then punched him in the head from behind. Your brother then punched him also, and the two of you started hitting him while he tried to defend himself. Two people who witnessed this tried to separate the three of you. Until this stage, the events have been captured on CCTV footage, but at this point, the three of you were off camera for just under two minutes.
6Mr Bourne can then be seen looking dishevelled and without his shirt. He tried to enter the store, but the attendant had locked the doors. Your brother then followed Mr Bourne, picked up his bike and threw it at Mr Bourne. He walked towards Mr Bourne, who produced an extendable baton.
7Your brother ran back for a short distance, but then you and Mr Bourne started punching each other. Your brother joined in, and the two of you pushed Mr Bourne to the ground. You both punched and kicked Mr Bourne and dragged him as he lay on the ground. You pinned him to the ground by his hair, while your brother punched him to the back of the head, back and ribs repeatedly.
8Then still holding him by the hair while he was in a sitting position, you kicked him in the head, using your knee. Then while Mr Bourne lay face down on the ground, you lined up and kicked him in the head region. Mr Bourne managed to sit up and you threatened to hit him. You then hit him to the head region, causing him to fall back to the ground. You and your brother walked away.
9Mr Bourne managed to get up and was kicked again by you. You began to assault him again and your brother joined in, with both of you kicking him to the head and back. Your brother forcefully kicked him in the front of his chest and head area. You then kicked him in the head multiple times, while your brother held Mr Bourne and continued assaulting him. Again, you kicked him in the head, causing him to fall to the ground, where upon you assaulted him further.
10By this time, Mr Bourne's left arm and face were bloodied. He managed to stand up and walk towards the store, ignoring the baton on the ground. You were on the motorcycle, attempting to ride directly towards Mr Bourne. He again tried to enter the store, and while he stood at the door, you repeatedly drove the motorcycle towards him, before punching him in the head again.
11Your brother walked over and punched Mr Bourne, before you both walked away from him. 30 seconds later, you returned to where Mr Bourne was standing, and your brother punched him in the head. You again assaulted him, before kicking, kneeing him and then punching him in the head.
12At some stage during the assaults, Mr Bourne's left ear was cut with a Stanley knife, either by you or your brother. Police arrived straight after this and you both fled, on seeing them, taking Mr Bourne's backpack with you. After some initial first aid to his injuries, Mr Bourne was taken to hospital, where he was treated for the following injuries: fractured right eye socket in two places, right eye injury, broken nose, bruising around both eyes, fractures to two ribs, incision to his left ear, large haematoma on the scalp. He required emergency treatment to his right eye to prevent blindness. His left ear required partial amputation.
13It was assessed that these injuries were highly likely to have caused significant pain. Indeed, that inference can be drawn from his appearance on the CCTV footage. Those assaults constitute Charge 1 on the first indictment, causing injury intentionally. At 2.30 am the same morning, police were called to attend at the home where you live with your mother.
14You were placed in handcuffs and escorted to the police vehicle. Your behaviour was erratic in that you were initially compliant, but became aggressive and irrational before becoming compliant again.
15You resisted being placed into the divisional van, and kicked the door, then headbutted it, causing such concern that an ambulance was called. You behaved offensively to the female police present, and used abusive language towards them.
16Your behaviour escalated into a threat to one of the male officers, Senior Constable Baulch, when you said, 'Don't touch me, you dirty dog. I'll fuck your little sister, cunt.' You then said to Acting Sergeant Katie Keating, 'You're a bad slut. If I find your daughter, I will fuck your daughter.'
17The police officers attempted to remove your handcuffs and hold you down, in order to secure you to the gurney before placing you in the ambulance. You said to Senior Constable Christy Stevens that if you could, you would punch her and the other officers, and you would break her jaw and cave 'that little slut'.
18These three threats are part of Charge 1 on the second indictment, which is a rolled up charge of intimidation of a law enforcement officer. While officers were continuing to subdue you in order for sedation to be administered by the ambulance officers, you touched Officer Stevens between her legs. You said highly abusive things to her and asked her name. That is Charge 2 on the second indictment; assault.
19The last part of Charge 1 occurred when you were in the ambulance and were continuing to make remarks to the police. You told Officer Baulch that you would rape his mother and his daughter. After being assessed in hospital, you were discharged the same day, and taken to a police station where you were interviewed and denied being involved in the assaults or even being at the location. You said you had been drinking and using cannabis the previous day with your brother, and you had no memory of the events put to you. You denied knowing Andrew Bourne.
20The maximum penalties for two of these offences indicate their seriousness. For intentionally causing injury, and for intimidation of a law enforcement officer, it is 10 years imprisonment, for assault, it is five years and for unlicenced driving, never having held a licence, it is six months or a fine of 60 penalty units.
21The CCTV footage of the assaults was viewed in court, as was part of the body worn camera footage of the arrest. They are graphic portrayals of the offending in each instance. The assaults on Mr Bourne were vicious, brutal and prolonged, for about 10 minutes. And the injuries inflicted and the manner in which they were inflicted, places them at the high end of the range of seriousness. Its repeated occurrence over the protracted period indicates your intention to cause the injuries that you did inflict. I am sentencing you for the offence simpliciter, as a serious example of that offence, placing it at the high end of that particular offence.
22I must clarify that I am not sentencing you for intentionally causing serious injury, which is a different offence, attracting double the penalty. I note that there was no suggestion of any planning of the assaults. They were opportunistic but intentional, with aspects of spontaneous, unexplained and unprovoked rage. Your behaviour during the arrest an hour or so later was irrational and clearly indicated that you were drug-affected.
23Officer Stevens has provided a victim impact statement, which we just heard read to the court, in which she describes the very serious effects of your assault on her. She now suffers from a number of mental health conditions, including post-traumatic stress disorder and anxiety. Her sleep has been badly affected. She is now hypervigilant about engaging with men in the course of her duties, and indeed, has moved away from front line policing, a part of her career that she had found very satisfying.
24Her hypervigilance has extended to having a severe bodily and emotional reaction to any mention of the incident, and to avoid public places where she feared the possibility of seeing you once you were released on bail. Ms Stevens wrote: 'I am unsure of how long it will take me to feel like me again. I do know I will never be the same again'.
25The prosecution's submission was that the offending during the arrest can be characterised as being between a low and mid-range level of seriousness. Without implying that this characterisation diminishes in any way the effect upon Officer Stevens, I agree with that estimation.
26It is quite likely that you were in the same drug affected state at the earlier time of the assaults. Apart from the injuries to Mr Bourne, Ms Stevens was also gravely affected by your actions that night. She was doing her job, acting professionally and responsibly, and should not have been subjected to your gross behaviour. She has paid a high price for her commitment to her work. The combined gravity of both incidents requires considerable weight to be given in sentencing, to general deterrence and in your case, specific deterrence as well. I shall return to those matters later in these sentencing remarks.
27The offending is made more serious by the fact that you were on bail at the time for other offending, for which you were sentenced in the Magistrates' Court on 25 August 2023 to a Community Correction Order.
28Turning now to your background and circumstances. You are now 24 and you were 21 at the time of the offending. Your brother was then 23. You are of aboriginal heritage. Your upbringing was dysfunctional; indeed you were exposed to neglect and violence at home where sadly your mother was an alcoholic and both she and your father suffered from serious psychological disturbance, including borderline personality disorder and schizophrenia.
29After your parents separated when you were about six, you moved around between each parent's house. You have reported that your behaviour became increasingly challenging involving substance abuse, violence and weapons from a very young age. Later when you and your brothers lived constantly with your mother, substance abuse was a daily occurrence between all of you and fighting between the brothers including stabbing resulting in police being called and the house being smashed up.
30Your father was violent towards your mother as were her boyfriends later on, all of which you witnessed and you would try to defend your mother by hitting the perpetrator. You were placed into residential care at one stage and at times lived with extended family members including your grandparents. You attended many schools owing to your family's transience and were expelled several times for behaviour which eventually resulted in a diagnosis of ADHD, which continues to this day. You left school after year seven and although you can read and write, you have trouble with numeracy.
31You also still suffer from post-traumatic stress disorder and anxiety as well as substance abuse over many years, including heavy use of alcohol from the age of 12, which appears to have resulted in some liver damage. You were one of four siblings and the family was struck by tragedy when your older brother was killed in a motorcycle accident in 2017.
32Your other brother has been in prison but your sister has had no involvement with the law and lives with her partner and four children. You remain close to both of those siblings.
33You have had periods of employment doing heavy work, which you enjoy and you are presently employed as a traffic controller on a casual but ongoing basis, hoping to gain entry to the construction business.
34After a period of youth detention where you completed some training, you worked for six months with John Holland on the Metro Tunnel project. You were described as a hard worker who got along with colleagues. After the offending and in the context of a bail application, you were linked with the Victorian Aboriginal Health Service and were able to attend a youth residential rehabilitation program where you completed 15 of the 16 weeks. From there you were transferred to another residential service in Gippsland, which you completed.
35This is confirmed by letters from Ms Bonnie Dukakis of the Koori Youth Council and Scott Forrest, the manager of the Gippsland service. Mr Cornell from BSHS who has known you for some years gave evidence confirming your progress. Since this offending, you have succeeded in remaining free of substances, indicating the success of those programs as well as your own commitment to staying substance free.
36Mr Forrest states that in his view you still require substantial ongoing support and treatment. You have a daughter aged 17 months, born to your former partner with whom you remain on good terms. You have regular contact with your daughter and she is part of your motivation towards rehabilitation.
37In 2023 and again very recently, psychologist, Megan Rodgers, assessed you and provided reports. In her summary of your childhood experiences, Ms Rodgers explained that child abuse and neglect 'is associated with broad and long-lasting effects including mental illness and at risk behaviours'. She went on to say - and here is a substantial quote from her report:.
These experiences can fundamentally alter cognition and result in impaired emotional recognition and regulation. Neuro-biological changes such as these are associated with behaviours that increase the risk of contact with the criminal justice system.
39Ms Rodgers went on to explain the complex physiological effects that can result including changes in brain structure, function and stress hormone regulation. The principals in the case of Bugmy apply in this case, meaning that as held in that case, the consequences of childhood deprivation do not diminish with time and are to be taken into account in sentencing.
40Ms Rodgers also reported the remorse that you expressed to her for this offending, as to its impact on the victim and also what it means for your daughter. From the dock on two occasions, you watched footage of yourself committing these offences, acting with uncontrolled cruelty towards Mr Bourne and later irrationally towards the police. You are reported to have described this as disgusting.
41Ms Rodgers reported that you find satisfaction from a stable drug-free life with consistent employment and she regards your prospects for rehabilitation as good, so long as you remain substance‑free and engaged with support services.
42Your plea of guilty and the early offer to plead guilty to the same charge, the injury charge, mean that you are entitled to a discount on your sentence, given its utilitarian value in avoiding the expense and inconvenience of a trial.
43Your brother was sentenced by Her Honour Judge Davis on 15 August 2023, for his role in the offending.
44He was sentenced to three years and six months, having pleaded guilty to causing serious injury intentionally. In applying the principal of parity, I take into account the different charge to which you have pleaded guilty. The assaults on Mr Bourne began with you punching him and ended similarly. You role as can be seen on the CCTV footage was more active than your brother’s. In applying parity, I have also considered a range of other factors, including the fact that you were two years younger, bringing into play the greater emphasis on rehabilitation.
45This is diminished somewhat by the serious nature of the offending. The delay in the resolution of the case and its listing for a plea have given you the opportunity to maximise your rehabilitation and you have taken full advantage of that with considerable success, for which you are to be given credit.
46Your brother's plea was heard in July last year and he had remained in custody until then. So his prospects for rehabilitation were described by the sentencing judge as guarded, while yours are considered by Ms Rodgers to be good, taking into account your progress. I have reached the same conclusion.
47You were both on bail at the time of the offending. The principal in Bugmy applies to you both. You both have criminal histories but despite your youth, your history is the more violent. You have convictions and court appearances in the past, both in the Children's Court and the adult Magistrates' Court, involving resistance to and assault of emergency workers on duty. Of course these are different charges from intimidation of a law enforcement officer, but they suggest a similar attitude prevailing since your teenage years. General deterrence is of considerable importance.
48The unprovoked assaults occurred at night, in full view of members of the public and indeed there were several present. Such violence deserves stern condemnation by the court as well as just punishment, tailored to your specific circumstances. In this regard I take into account your abstention from substances for two and a half years, and your enhanced insight into the need for change.
49Your commitment to your rehabilitation has been commendable and so specific deterrence is somewhat less critical than otherwise. I have considered carefully the submission by Mr Lavery on your behalf that a Community Correction Order for a combined sentence is appropriate. I have concluded that the offending is too serious, even when mitigating factors are taken into account.
50Would you stand now, please, Mr Baker. I sentence you to the following terms of imprisonment. On CR‑23‑01270 for the charge of intentionally causing injury; three years and for unlicensed driving; two months. That two month sentence will be served concurrently.
51The three year sentence is the base sentence for the purposes of cumulation in respect of each indictment.
52On CR‑24‑01735, for the charge of intimidation of a law enforcement officer; two years imprisonment, and for common law assault; six months.
53The six month sentence will be served concurrently with the two year sentence. Six months of the two year sentence will be served in cumulation upon the three year sentence for causing injury intentionally. This results in a total effective sentence of three years and six months. I order that you serve two years before being eligible for parole.
54If you had pleaded not guilty for these charges, I would have sentenced you to prison for four years and six months with a non-parole period of three years. You were in custody for 124 days before being granted bail. I declare that time as to be reckoned as already served and I shall note that on the court record.
55Now, Mr Lavery, do you know whether there are any custody management issues that should be noted.
56MR LAVERY: There are none that I am aware of, Your Honour.
57HER HONOUR: Nothing.
58MR LAVERY: Not that I am aware of. No, Your Honour.
59HER HONOUR: Is there anything I have emitted or neglected, Ms Arceri.
60MS ARCERI: No, Your Honour. But, Your Honour, can I just clarify that in relation to the summary charge of the unlicenced driving, that does refer to the same incident, Your Honour. It's the driving of the motorcycle.
61HER HONOUR: Yes. I didn't make that clear, I'm sorry. Yes. I'll make an adjustment to the sentencing remarks to take that into account. Thank you. Mr Lavery, anything further.
62MR LAVERY: No, Your Honour.
63HER HONOUR: Thank you. Thank you, officer, you may take Mr Baker now.
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