Director of Public Prosecutions v Baker (a pseudonym)
[2019] VCC 2096
•12 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHNIE BAKER (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 12 December 2019 |
| DATE OF SENTENCE: | 12 December 2019 |
| CASE MAY BE CITED AS: | DPP v Baker (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2096 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Recklessly cause injury – attempt to pervert the course of justice – stalking – contravene family violence intervention order – intended to cause harm and fear – persistently contravening family violence intervention order – youthful offender.
CasesCited: R v Mills [1998] 4 VR 235, R v Wyley [2009] VSCA 17, Azzopardi v The Queen [2011] VSCA 372, Verdins; Buckley; Vo (2007) 16 VR 269.
Sentence:Total effective sentence of five years and three months' imprisonment. I fix a non-parole period of three years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown (For Plea) | Director of Public Prosecutions |
| Ms M. Lynch (For Sentence) | ||
For the Accused | Mr B. Sonnet | Tyler, Tipping & Woods |
HIS HONOUR:
1Johnie Baker[1], On 12 December 2019, at Latrobe Valley County Court you pleaded guilty to the following charges on indictable No.J12212521:
[1] This is a pseudonym name.
Charge 1, recklessly cause injury to Ella Anderson[2];
[2] This is a pseudonym name.
Charge 2, contravention of a family violence order, intending to cause harm or fear;
Charge 3, recklessly cause injury to Ella Anderson;
Charge 4, contravention of a family violence order, intending to cause harm or fear;
Charge 5, recklessly cause injury to Ella Anderson;
Charge 6, contravention of a family violence order, intending to cause harm or fear;
Charge 7, recklessly cause injury to Ella Anderson;
Each of the Charges 1 to 7 have a maximum penalty of five years' imprisonment.
Charge 8, attempting to pervert the course of justice, this charge has a maximum penalty of 25 years' imprisonment;
Charge 9, stalking, that is between 5 August 2018 and 22 August 2018, this charge has a maximum penalty of 10 years' imprisonment;
Charge 10, persistent contravention of a family violence intervention order, between 5 August 2018 and 22 August 2018, this charge has a maximum penalty of five years' imprisonment.
2You have also consented to four related summary charges being heard on the day of your plea. Pursuant to ss.145 and 242 of the Criminal Procedure Act, these four charges will be dealt with at the same time as your plea indictment charges. You pleaded guilty to the following related summary charges:
Summary Charge 1, unlawful assault of Ella Anderson; this charge has a maximum sentence of three months' imprisonment;
Summary Charge 2, discharge a missile endangering Ella Anderson; this charge has a maximum penalty of six months' imprisonment;
Summary Charge 13, unlawful assault of Ella Anderson; this charge has a maximum penalty of three months' imprisonment; and
Summary Charge 29, threat to distribute intimate images of Ella Anderson; this charge has a maximum penalty of 12 months' imprisonment.
3You have admitted your prior criminal history. Between October 2011 and November 2013 you had four separate appearances at the Sale Children's Court. Your offending included cannabis use and possession, dishonesty offences and violence and property offending.
4In 2013 and 2014 you appeared in Local Court at Port Kembla and Wollongong, a charge of resist of police in the execution of duty, and you were fined. Later in 2014, you had returned to Sale and you were convicted of a charge of criminal damage and fined.
5On 19 February 2015, you were convicted of affray and sentenced to 60 days' imprisonment, which was time served at that time. On the same day you were convicted and placed on a two-year community corrections order for other violence and contravening family violence order and property damage charges.
6On 28 October 2015, you were convicted at the Sale Magistrates' Court and sentenced to 51 days' imprisonment, that was time served, for threat to inflict serious injury, intentional damage property and contravening a family violence
order and offending whilst on bail.
7I note here that in respect of the Charges 1, 2, 3, 4, 5 and 6 on the indictment when they were committed you were on a CCO for similar offending. Your criminal history shows you are a slow learner and you have little regard for court orders.
8Further, on 22 February 2017, you were sentenced to four months' aggregate sentence, for a breach of the CCO and other offences and a making threat to kill, at the Sale Magistrates' Court. Your release from prison was a short time prior to the offending in Charge 5.
9On 24 July 2018, the police obtained a court ordered intervention order to protect Ms Anderson. This order preceded the tranche, as it was referred to by Mr Sonnett. This order precedes that tranche of offending between 5 August 2018 and 22 August 2018 when you were arrested and remanded in custody.
Circumstances of your offending
10You are now 24 years old. At the time of the offending in this case you were between the ages of 21 and 23 years old. The victim of your offending, Ella Anderson, was between the ages of 18 and 20 years old at the time of your offending. You commenced a de facto relationship with Ms Anderson in early 2016.
11On 30 August 2016, a domestic violence intervention order was made at Innisfail Magistrates' Court to protect Ms Anderson from you. That order was registered in Victoria on 14 September 2016 at the Melbourne Magistrates' Court. You were present at the Sale Magistrates' Court on 24 October 2016 when that order was varied so that you could live together.
12Throughout the relationship, that is your relationship with Ms Anderson, you used illicit drugs including cannabis. The prosecution case is that you were a
controlling and verbally abusive man who was often physically violent toward Ms Anderson particularly when you were unable to source and consume cannabis. Ms Anderson fell pregnant to you in June 2017.
13On 29 March 2018, Ms Anderson was taken to the Sale Hospital by ambulance due to her experiencing abdominal pains. This was approximately two weeks prior to her expected delivery date of the child. Ms Anderson was examined and given medical care at that time. At some point the medical tests revealed that your unborn child was in fact deceased due to a tear in her womb that had worsened during the course of her pregnancy. You blamed Ms Anderson for the loss of the unborn child, Robert[3]. It is in this context that your offending against Ms Anderson commenced again.
[3] This is a pseudonym name.
14The prosecution tendered a full and detailed summary of prosecution opening at the plea hearing dated 26 August 2019. This was Exhibit “A” on the plea and a copy of it is annexed to these reasons for sentence. This is my summary of what you have done:
Charges 1 and 2
15Between 1 February 2017 and 15 February 2017 you had an argument with Ms Anderson. You became angry, you struck her in the left eye region causing pain and bruising to that eye, which remained for approximately 10 days.
Charges 3 and 4
16Between 1 February 2017 and 15 February 2017 on separate occasion to Charges 1 and 2 you got into an argument again with Ms Anderson. You punched Ms Anderson to the head, she fell backwards and struck her head on a couch, causing her to lose consciousness for a short time.
17These four charges, as I have said before, were committed whist you were serving a CCO for similar offending, which was imposed on 19 February 2015 and varied on 28 October 2015.
Charges 5 and 6
18On 29 August 2017, you accused Ms Anderson of having an affair. Ms Anderson was cooking at the stove. You pushed Ms Anderson's head into a pot of boiling water on the stove. You carried Ms Anderson to the shower and called her mother, Sarah Stubers[4]. You did not call an ambulance. A friend took Ms Anderson to the Sale Hospital. Photographs of the injury to Ms Anderson's face was Exhibit “B”. You blamed Ms Anderson for the burns injury to her face by being clumsy. These charges were also committed whilst, as I said before, you were on a CCO.
Charge 7
[4] This is a pseudonym name.
19On 13 August 2018, you were walking in a park with Ms Anderson. You accused her of sleeping with other men. You pushed Ms Anderson up against a fence and punched her to the face. You then grabbed her by the jacket and around her neck region. Ms Anderson suffered a black eye and bruising to her neck and chin. The photographs of these injuries were Exhibit “C” on the plea.
Charge 8
20Ms Anderson was pregnant with your child on 29 August 2017 when you forced her head into a boiling pot of water. On 29 March 2018, your stillborn baby was delivered at the Sale Hospital. Your child was cremated and the ashes were placed in an urn. Ms Anderson retained the urn.
21Between 16 August and 22 August 2018, you threatened and manipulated
Ms Anderson into allowing you to take possession of the urn containing the ashes of your stillborn child. Having obtained the urn, you told Ms Anderson that unless she withdrew her complaints against you she would never have access to the urn or the ashes again. You sent text messages to Ms Anderson demanding that she tell the police that she had lied in her statements and wanted to withdraw her complaints against you.
22You also informed Ms Anderson she was responsible for you going to gaol and that she should jump in front of a truck. Further, you threatened to commit suicide, adding that if you did it would be her fault. You also threatened to distribute intimate images of Ms Anderson if she did not withdraw her complaints. The case against you, and you have pleaded to it, is that your actions were attempting to pervert the course of justice. This is also the basis for Summary Charge 29.
23The offending in Charge 8 has the dual criminality of interfering with the course of justice and doing so by continuing to exercise your power and control over a person who had a court order to protect her from you. The threat to distribute intimate images has the added nastiness of exercising control by public shaming of Ms Anderson with the betrayal of her trust in you.
Charge 9
24This is a charge of stalking. The events establishing this charge are listed in incidents 8, 9 and 10 in the prosecution opening and occur on 16, 17, 18, 19 and 22 August 2018. The actions of your persistent texting to Ms Anderson making threats to kill yourself and other abuse of her over the phone amount to stalking.
Charge 10
25This is a charge of persistently contravening a family violence intervention
order. The allegations which form the basis of this offence occurred on 5, 10, 13, 16, 17, 18, 19 and 22 August 2018. The offending in this charge overlaps to a large extent the previous matters raised in Charge 9 on the indictment.
Summary Charges 1 and 2
26The related summary offences of Charge 1 and 2, are based on the following facts. On 18 July 2018 Ms Anderson and yourself were at the home and woke up to find that the electricity had been disconnected due to an unpaid invoice. This caused you to be angry again. Ms Anderson decided to leave the house and as she was doing so you have pushed her in the back. She was standing outside the home and then you have picked up a brick and you have thrown it at her. She was able to dodge that missile narrowly missing her.
Summary Charge 13
27The related Summary Charge 13, is based on the following facts. On 5 August 2018, Ms Anderson was with David Noble[5] at Jodie Jordan’s[6] house in Sale. At around 2 pm you knocked on the door and walked into the house. Ms Anderson and Noble immediately walked out of the house and went directly to Noble’s car that was parked in the driveway of the house. Ms Anderson sat in the passenger seat and Noble sat in the driver's seat. You have approached Ms Anderson, lent into the car and spat in her face. You said to her, 'That's what I think of you. Your son (referring to your stillborn child, Robert) would be disgusted in you.’ It was the day after this offence that Ms Anderson made her first complaints to the police about your violence towards her.
[5] This is a pseudonym name.
[6] This is a pseudonym name.
28After your arrest on 22 August 2018 you were interviewed by police about the offending. In your interview with the police you denied all the allegations. You also said that Ms Anderson had either deliberately or accidentally injured herself on each occasion; in respect to the text and phone messages, you blamed those communications on a friend of yours who you said had access to your phone. You also told police that the traumatic effect of the death of
your child Robert had on you.
Victim Impact Statements
29In this case there are two victim impact statements filed. The direct victim of your offending, Ella Anderson, filed a victim impact statement. It was Exhibit “D”. There were some matters set out in her statement which were not directly relevant to your offending before this court and an opinion of hers about the loss of smell and taste that I have disregarded. Nevertheless she sets out how she has burn marks above her right eyebrow as a result your putting her head into the pot of boiling water. Your taking of Robert's ashes from her have left her angry and broken. They are her words.
30She has flashbacks of your offending, has become a reclusive person. She has decided to leave Sale and to never return because of her memories of your offending against her and her continuing fear of you. She recalls your last words to her, 'Wait till I get out'. You have left her terrified. She describes herself as a depressed and emotionally wrecked person.
31Ms Anderson's mother also filed a victim impact statement. It was Exhibit “E”. Ms Stubers states how she felt powerless to help her daughter and could not protect her from you. She recounts how she observed her daughter in hospital and thought she would be physically and emotionally scarred for life. Because Ms Anderson has left Sale, she has been unable to provide practical assistance to her own daughter. She states how you took the ashes of Robert from the family in order to manipulate them. Your offending has had deep and lasting impact on your former de facto and her family.
Personal circumstances
32You are now 24 years old. At the time of the offending you were between the ages of 21 and 23 years old. I have previously dealt with your criminal history, including a court appearance for subsequent offending where you received an aggregate sentence of four months' imprisonment in February 2017.
33Your parents separated when you were two years old. You have four half- sisters and three half-brothers. You describe your mother as not being supportive in your early life due to her prioritising her partners and alcohol. You describe your father as a good bloke who taught you your morals. Unfortunately your father died as a result of brain cancer when you were 14 years old. You felt abandoned by everyone.
34Your attempts to live with your mother failed because of a falling-out you had with her then partner. I note your mother was in court to support you at the time of the plea hearing and she is here now at your sentence. From about the age of 15 years old onwards you have lived on the streets or, in the words of your counsel were, ‘wandering about'.
35In respect of relationships you have had a previous relationship between the ages of 15 and 19 years old. The partner in that relationship was the victim in your prior court appearances for family violence offending in February and October 2015. You were in a relationship with Ella Anderson for approximately three years from early 2016 to 22 August 2018, when you were incarcerated.
36In your early years you were diagnosed with ADHD. You were medicated with Ritalin between the ages of four and 14 years old. You completed primary school at Sale. You attended Sale College to Year 9 level and ceased school because you were then homeless. After leaving school you completed one year of a carpentry apprenticeship. You have also worked as a house restumper and on a banana farm when you had moved up to Queensland. Your longest period of employment was for approximately one year. You have been a social security recipient for several years prior to this offending.
37You have a history of illicit drug use. At the age of 14 you commenced cannabis use. You became a heavy user, consuming up to 7 grams a day
according to the history of Dr Cunningham. You commenced smoking methylamphetamine in the course of your relationship with Ms Anderson. You reported to Dr Cunningham that you thought methylamphetamine made you paranoid.
38Dr Aaron Cunningham, who is a forensic psychologist, has examined you for the purposes of this plea hearing. He prepared a report dated 9 December 2019. In his opinion, after administering testing of you, he assessed your overall thinking and reasoning skills as being consistent with an intellectual disability. Your full-scale IQ is 67.
39Dr Cunningham took a history from you that you grew up in violent domestic setting either at the hands of your mother's partners or your father's discipline administered in the form of jumper punches. You also reported being subjected to violence at a youth camp which was meant to assist you in growing up when you were up in Alice Springs.
40You told Dr Cunningham you were doing okay in goal, but I note you have been in solitary confinement on occasions in maximum security due to fights that you were involved in whilst in gaol.
41Dr Cunningham's opinion was that based on the psychometric testing that your intellectual functioning is in the extremely low range. He also noted that your abuse of methylamphetamine significantly aggravated your impairment. You were abusing methylamphetamine at the time of the offending. Dr Cunningham's opinion is that you present as a difficult prospects for rehabilitation given the combination of your intellectual impairment and your history of trauma and drug abuse.
42You have now spent 477 days of pre-sentence detention. In that time you have converted to Islam and now attend services on a weekly basis, as I understood it, and pray daily. Through your counsel you have expressed remorse for your offending and an acceptance of your offending that you can
see is serious.
Sentencing considerations
43The basic purpose for which a court may impose a sentence is just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
44I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
45I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of the sentences at that time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
46Of course current sentencing practices are only one of the factors I am required to take into account when imposing a just sentence for the totality of your criminal behaviour.
47You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage and your plea also has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other
matters and your plea vindicates the public confidence in the legal process set up to protect the community.
48Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your pleas of guilty to these charges indicates and demonstrates some remorse on your behalf.
49Your plea also has relieved your victim of the traumatic experience of giving evidence and reliving the offending against her in a committal or a trial hearing.
50At the time of your offending you were between the ages of 21 and 23 years old. Your offending took place over an 18-month period from February 2017 to August 2018, when you were arrested and placed in custody on remand. You have relevant and recent prior offences for similar offending against your previous de facto partner. I take into account the pronouncements of the Court of Appeal in Mills' case reported at (1998) 4 VR 235 and R v Wyley [2009] VSCA 17 in respect of sentencing young offenders and the emphasis on rehabilitation in the sentencing process for them.
51More recently the Court of Appeal has considered this matter in Azzopardi v The Queen [2011] VSCA 372. Redlich JA, with whom Coghlan and Macauley JJA agreed, said as follows:
'The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.
52I take into account the length of time your offending had taken place, that is the 18-month period, and your prior convictions in respect of similar offending include that the mitigatory considerations of your relative youth is diminished in this case.
53I have taken into account the assessment by Dr Aaron Cunningham, forensic psychologist. As I said, his report is dated 9 December 2019, that is Exhibit “1” on your plea. He has assessed your full-scale IQ as 67, which places your overall thinking and reasoning skills in the range consistent with the intellectual disability. Dr Cunningham assesses you as a difficult prospects for rehabilitation.
54I assess your prospects of rehabilitation as poor based on your previous convictions for similar offending against a domestic partner and your lack of insight into your current offending. Further, your abuse of methylamphetamine at the time of your offending has aggravated the fact that your mental functioning is in the extremely low range as assessed by Dr Cunningham.
55Your counsel relied on the principles set out in Verdins' case to submit that because of your diminished intellect that your moral culpability and sentencing considerations of general and specific deterrence are to be moderated. I accept that you are appropriate to receive some consideration in sentencing based on Verdins principles; however, I also need to take into account that your self-induced intoxication due to cannabis and methylamphetamine use at and around the time of the offending militate against giving you the full benefit of Verdins considerations. I accept that due to your extremely low intellectual functioning you will have more difficulties negotiating your custodial issues than other prisoners.
56The delay in resolving and finally listing your plea hearing has meant you have spent a total of 477 days on remand and consequently you have not been
able to access proper assessment, that is prisoner assessment, and placed in programs which would assist your rehabilitation. I take that delay into account.
57I also take into account that you were sentenced to a total aggregate sentence of four months' imprisonment in February 2017. Those offences were against Ms Anderson in part and could have been part of this sentencing process. I take this matter into account for the purposes of the sentencing principles of totality.
58I also take into account that at the time of the offences, those Charges 1 to 6, you were on a community corrections order for similar offending. In respect of Charges 5 and 6 you had just been released from prison when you committed those two offences.
59I also take into account the fact that there is an overlap of some of the offences and I have only cumulated sentences from some of the offences to reflect the additional criminality in those offences.
60I assess your offending is serious in general and in relation to the particular charges. The offending is persistent across a period of 18 months. There are court orders in the form of family violence intervention orders and also supervisory orders of a CCO. You have paid no regard to those protective court orders or to the supervisory orders made by the court.
61The offending in Charge 5, is at the upper end of the offence of recklessly cause injury. The offending in Charge 8, is also very serious due to the nature of the offence itself but also the means by which you sought to execute the offence. The use of the urn of ashes of your deceased child as a bargaining chip to persuade your partner to drop other charges against you for violence against her was attacking the justice system directly; and then seeking to deprive your partner of the protection of the law at the same time.
62All of your offending is part of an ongoing violent episode you used to control your partner. This included the physical violent, the threats of suicide, threats of publishing intimate images, the threats of never seeing Robert's urn again, all over an 18-month period.
63The principles of general and specific deterrence do have a role to play in your sentencing. Denunciation, just punishment and protection of the community also demand that a term of imprisonment with a non-parole period is the only just sentence in this case. I have only cumulated those parts of the individual sentences to avoid double punishment for individual sentences and also not to infringe upon the principle of totality in sentencing.
64Would you stand please?
65In respect of Charge 1, you are convicted and sentenced to six months' imprisonment.
66In respect to Charge 2, you are convicted and sentenced to six months' imprisonment.
67In respect to Charge 3, you are convicted and sentenced to six months' imprisonment.
68In respect to Charge 4, you are convicted and sentenced to six months' imprisonment.
69In respect Charge 5, you are convicted and sentenced to three years' imprisonment.
70In respect Charge 6, you are convicted and sentenced to six months' imprisonment.
71In respect to Charge 7, you are convicted and sentenced to nine months' imprisonment.
72In respect to Charge 8, you are convicted and sentenced to two years' imprisonment.
73In respect to Charge 9, you are convicted and sentenced to six months' imprisonment.
74In respect to Charge 10, you are convicted and sentenced to 12 months' imprisonment.
75In relation to the related summary charges, on Charge 1 you are convicted and sentenced to one month's imprisonment; on Charge 2 you are convicted and sentenced to one month's imprisonment; on Charge 13 you are convicted and sentenced to one month's imprisonment; and Charge 29 you are convicted and sentenced to three months' imprisonment.
76I order the following cumulation. Charge 5 is the base sentence, that is three years. Cumulated on that charge and on one another are two months of the sentence in Charge 1, two months of the sentence in Charge 3, two months of the sentence in Charge 7, 12 months of the sentence in Charge 8, six months of the sentence in Charge 10, one month of the sentence in Charge 1 of the related summary charges, one month of the sentence in Charge 13 of the summary charges and one month of the sentence in Charge 29 of the sentencing.
77That is a total effective sentence of five years and three months' imprisonment. I fix a non-parole period of three years and six months.
78But for your plea of guilty I would have sentenced you to seven years and nine months' imprisonment with five and a half years' imprisonment for all of this offending, a five and a half non-parole period.
79Your pre-sentence detention is declared at 477 days and I order that pursuant to s.464ZF of the Crimes Act that a forensic sample be provided. I will just explain to you what that means.
80The authorities can take from you a sample, which is a buccal swab, from inside your mouth. If you do not comply with that, they are allowed to use reasonable force to obtain it. Do you understand what I have just said? Yes.
81Is there anything else?
82MS LYNCH: No, Your Honour.
83HIS HONOUR: Mr Sonnet?
84MR SONNET: No, the maths adds up, Your Honour.
85HIS HONOUR: Did you want me to go over it? I do rattle it off a bit.
86MR SONNET: No, the maths added up fine.
87HIS HONOUR: Yes, very well.
88MR SONNET: There's no issue, Your Honour.
89HIS HONOUR: Thanks. Thank you, you can remove the prisoner, thanks. Mr Sonnet, thanks very much for your assistance today.
90MR SONNET: Indebted, Your Honour.
91HIS HONOUR: And thanks very much, Ms Lynch.
92MS LYNCH: Thank you, Your Honour.
- - -
IN THE COUNTY COURT Indictment No: J12212521
IN THE STATE OF VICTORIA AT THE LATROBE VALLEY
Court Reference: CR-19-01334
DIRECTOR OF PUBLIC PROSECUTIONS
v.
JOHNIE BAKER (A PSEUDONYM)
SUMMARY OF PROSECUTION OPENING AT PLEA HEARING
Date of Document: 26 August 2019
Filed on behalf of: The Director of Public Prosecutions
Prepared by: J. Goetz of Counsel
John Cain Solicitors’ Code:
Solicitor for Public Prosecutions Tel: (03) 9603 7666
565 Lonsdale Street Direct: (03) 9603 7504
MELBOURNE VIC 3000 Reference: Laura Blackie
A. BACKGROUND:
The offender is Johnie Baker (hereinafter referred to as BAKER) and he was born in 1995. He was 21 years old when the offending commenced and 23 years old on the date of the final offence. He is currently 24 years old.
2
The complainant in this matter is Ella Anderson (‘the Complainant’). She was 18 years old when the offending commenced and 20 years old on the date of the final offence.
In early 2016, BAKER and the Complainant began a relationship. Ultimately, they moved interstate to live in Innisfail, Queensland for a short period of time. Whilst they were residing in Queensland, a Domestic Violence Intervention Order (‘DVIO’) protecting the Complainant from BAKER was issued at the Innisfail Magistrates’ Court on 30 August 2016.
In September 2016, BAKER and the Complainant returned to Victoria to live and moved into a house in Sale (‘their home’). The Queensland issued DVIO was registered in Victoria at the Melbourne Magistrates’ Court on 14 September 2016. On 24 October 2016 that DVIO was varied at the Sale Magistrates’ Court and served on BAKER who was present for the proceedings.
Throughout their relationship BAKER and the Complainant used illicit drugs, including cannabis. The Crown case is that BAKER was a controlling, verbally abusive man who was often physically violent towards the Complainant, particularly when he was unable to source and consume cannabis.
The Complainant fell pregnant to BAKER in June 2017.
On 29 March 2018, the Complainant was taken to the Sale Hospital by Ambulance due to her experiencing abdominal pain. This was approximately 2 weeks prior to her expected delivery date. The Complainant was given examined and given medical care. At some point, medical tests revealed her unborn child was deceased due to a tear in her womb that had worsened during the pregnancy.
BAKER blamed the Complainant for the loss of their unborn child.
3
B. SUMMARY OF OFFENCES:
BAKER has pleaded to the following charges: Charges 1, 3, 5, 7 Recklessly cause injury (x 4)
Charge 2, 4, 6 Contravening the FVIO- Intending to Cause Harm or Fear Charge 8 Attempting to Pervert the Course of Justice
Charge 9 Stalking (by conduct including locating the Complainant, contacting her and then abusing her on the telephone and by transmitting text messages
Charge 10 Persistently contravene the FVIO between 5/8/18 – 22/8/18
BAKER has also pleaded guilty to the following summary charges: Charge 1, 13 Unlawful Assault (x2)
Charge 29 Threatening to Distribute intimate images of the Complainant Charge 2 Discharge Missile
C. CIRCUMSTANCES OF THE OFFENDING:
The offending can be broadly separated into ten separate incidents as follows:
Incident 1: b/w 1 February – 15 February 2017:
In early February 2017, BAKER and the Complainant were at their home in Sale when an argument took place. BAKER became angry. The Complainant became fearful that BAKER would assault her and attempted to remove herself from the situation. As the Complainant was attempting to leave their home, BAKER grabbed her by the shoulder and spun her around to face him. BAKER’s actions caused the Complainant to be struck in the left eye with the palm of his hand. The impact of the blow caused immediate pain. As a result of the blow, the Complainant received bruising around her eye that remained for approximately 10 days.
(This forms the basis of:
Charge 1 – Recklessly cause injury; and
4
Charge 2 – Contravene FVIO intending to cause harm) Incident 2: b/w 1 February 2017 – 15 February 2017:
On another occasion in February 2017, the Complainant and BAKER were at their home when an argument took place. The Crown case is that BAKER grabbed the Complainant by her clothing and in the struggle punched her to the side of the head with his clenched fist. The Complainant was knocked off her feet by the force of the punch and fell backwards. She struck her head on the couch which caused a loss consciousness for a short period of time. She woke up to find BAKER hugging her and apologizing for his actions. As a result of the assault, the Complainant received a bruise and lump to the temple of her head.
(This forms the basis of:
Charge 3 – Recklessly cause injury; and
Charge 4 – Contravene FVIO intending to cause harm)
Incident 3: 29 August 2017:
On 29 August 2017, the Complainant and BAKER were at their home. BAKER was angry and accusing the Complainant of having an affair with another person. At the time, the Complainant was in the kitchen cooking and attending to a pot of boiling water on the stove. BAKER came into the kitchen and screamed in the Complainants face. A physical struggle then ensued during which the Complainant’s face was pushed into the pot of boiling water. As a result, the Complainant dropped to the ground screaming in pain.
(This forms the basis of:
Charge 5 – Recklessly cause injury; and
Charge 6 – Contravene FVIO intending to cause harm)
When BAKER saw that the Complainant’s face had begun blistering, he carried her to the shower and called her mother, Sarah STUBERS (’STUBERS’). The Crown case is that following this incident, BAKER chose not to call an ambulance.
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Next, BAKER went to the home of Amanda SCHWARTZ[7] and arranged for her to drive the Complainant to the Sale Hospital. BAKER did not travel with the Complainant and SCHWARTZ. BAKER instructed the Complainant that if asked, she was to say the scolding to her face and body was caused by herself knocking the pot from the stove. In addition, BAKER told the Complainant that she was not to stay at the hospital but rather return home to him.
[7] This is a pseudonym name.
The Complainant was treated for scolding in the Emergency Department of the Sale Hospital by Dr. Eshana SINGH 1 and nursing staff. The Complainant was pregnant at the time.
Dr SINGH observed superficial burns to her face and treated with an IV of the anti-inflammatory medication Dexamethsone and then sent her home with pain medication and a referral to her GP. Her GP subsequently referred her to a Plastics specialist for follow up treatment. Photos of her facial burns can be seen at pp 77 – 78 of the HUB.
After the Complainant had received medical treatment, STUBERS collected her and drove her home. Upon their arrival, they observed BAKER on a couch playing a video game. BAKER then blamed the Complainant for her injury, calling her stupid and clumsy.
On 1 September 2017, STUBERS photographed the Complainant’s face whilst at the Sale Hospital and again on 5 September 2017, when attending with the Complaint at a medical appointment.2
1 Statement of Dr. SINGH dated 13/1/19 – p.56 Brief of Evidence
2 Photographs of Complainant’s injuries – Exhibit 1 – p.77-78 Brief of Evidence
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Incident 4: 18 July 2018:
On 18 July 2018, the Complainant and BAKER were at their home and woke up to find their electricity had been disconnected due to an overdue and unpaid invoice. This caused BAKER to become angry. The Complainant decided to leave the house and as she was doing so, BAKER pushed her in the back. As the Complainant was standing outside their home, BAKER picked up a brick and threw it at her. She was able to dodge the missile that narrowly missed her head.
(This forms the basis of the summary charges:
Related Summary Offence - Charge 1 – Unlawful assault; and
Related Summary Offence - Charge 2 - Discharge a missile)
Incident 5: 5 August 2018:
On 5 August 2018, the Complainant was with David NOBLE (‘NOBLE’) at Jodie JORDAN’s house in Sale. At about 2pm, BAKER knocked on the door and walked into the house. The Complainant and NOBLE immediately walked out of the house and went directly to NOBLE’s car that was parked in the driveway. The Complainant sat in the passenger seat and NOBLE in the driver’s seat. BAKER approached the Complainant, lent into the car and spat in her face. BAKER said to the Complainant - "That’s what I think of you. Your son (being their stillborn child) would be disgusted in you."
(This forms the basis of:
Charge 10 – Persistently Contravene FVIO; and
Related Summary Offence – Charge 13: Unlawful assault)
On 6 August 2018, the Complainant attended at the Sale Police Station where she spoke to Leading Senior Constable Michael COOK and began reporting the history of violence committed against her by BAKER.
Incident 6: 10 August 2018:
On 10 August 2018, the Complainant was once again with David NOBLE at Jodie JORDAN house. BAKER attended at the address looking for the Complainant. Once the Complainant became aware BAKER was at the
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property she hid from him in another room until JORDAN came to her saying that BAKER wanted to speak with her. BAKER spoke to the Complainant and she ultimately returned with him to their house where she stayed for the weekend.
(This forms the basis of the summary charge:
Charge 10 – Persistently Contravene FVIO)
Incident 7: 13 August 2018:
On 13 August 2018, the Complainant was walking with BAKER in parkland near their house. At some point BAKER became angry with the Complainant and accused her of sleeping with other men. Next, BAKER pushed the Complainant against a paling fence and held her there. During this incident the Complainant received a punch to the face. The scuffle also involved BAKER grabbing the Complainant’s jacket and raising it up around her neck. As a result of this incident, the Complainant suffered immediate pain together with a black eye and bruising to her neck and chin. Photos of her injuries can be seen at pp. 80 – 85 of the HUB.
(This forms the basis of:
Charge 7 – Recklessly cause injury; and Charge 10 – Persistently Contravene FVIO)
Incident 8: 16 August 2018 to 17 August 2018:
From 16 August 2018 to approximately 1:00am on 17 August 2018, BAKER telephoned and sent a series of texts to the Complainant. The Crown case is that BAKER made approximately 100 telephone calls to the Complainant, of which approximately 80 connected. Further, it is alleged BAKER transmitted approximately 30 text messages to her. During these communications BAKER threatened the Complainant.
(This forms the basis of:
Charge 9 – Stalking; and
Charge 10 – Persistently Contravene FVIO)
Incident 9: 17 August 2018:
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On 17 August 2018, BAKER sent 6 text messages to the Complainant. He threatened to attend at the Complainant’s home to take possession of the ashes of their stillborn child saying – “Shit’s gonna go down if you don’t bring him out either.”
(This forms the basis of the charge:
Charge 9: Stalking)
Incident 10: 18 August 2018:
On 18 August 2018, BAKER sent 13 text messages to the Complainant. The messages abuse the Complainant and make references to their stillborn child, Robert, as follows:
·“YOUR SON WOULD BE ASHAMED OF YOU”
·“I’m going to jail on Thursday because of YOU…”
·“THINK WHAT ROBERT WOULD BE THINKING OF YOU RIGHT NOW”
Further, BAKER threatened to commit suicide by texting the following:
·“I’m really gonna kill myself tonight…I HOPE YOUR HAPPY HEY THIS IS ON YOU NOW SLUT…ME & ROBERT ARE SO DISGUSTING IN YOU..”
(This forms the basis of:
Charge 9: Stalking
Charge 10 – Persistently Contravene FVIO.)
27. On 19 August 2019 the accused sent 11 text messages to the complainant. The accused sent the complainant a photograph of their stillborn child, followed by a text message saying ‘Look what you thru always slut”. The accused verbally abused the complainant and threatened to commit suicide saying:
· “I can’t wait to kill myself”
· "I’m blaming you for everything"
(This forms the basis of:
Charge 9: Stalking
Charge 10 – Persistently Contravene FVIO.)
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On 22 August 2018, the accused sent 29 text messages to the Complainant. Included in these messages was a threat to distribute an intimate image of the Complainant by texting: “I’m gunna send ya dirty porno to everyone to … lett em know your got a big hole.” Other messages included:
· “You need to sort this out ella”;
· “If you ever loved me & want to see me again would do this”
· “You know what have to do”;
· “That’s why your not getting Robert back”;
· “You should be ashamed”;
· “I’ll be thinking of you & Robert every day”
(This forms the basis of the charges:
Related Summary Charge 29 - Threaten to distribute an intimate image; and
Charge 10 – Persistently Contravene FVIO)
Between 16 August and 22 August 2018, BAKER threatened and manipulated the Complainant into allowing him to take possession of the urn containing the ashes of their stillborn child. Having obtained the urn, BAKER told the Complainant that unless she withdrew her complainants against him, she would never have access to the urn and ashes again. BAKER sent text messages3 to the Complainant demanding she tell the police she had lied in her statement and wanted to withdraw her complaints. BAKER also informed the Complainant she was responsible for him going to gaol and she should jump in front of a truck. Further, BAKER threatened to commit suicide adding that if he did, it would be her fault. Further, BAKER threatened to distribute intimate images of the Complainant if she did not withdraw her complaints. The Crown case is that BAKER was by his actions attempting to pervert the course of justice. (This forms the basis of:
Charge 8 - Attempt to pervert the course of justice; and
Charge 9 – Stalking;
3 Photographs of text messages sent to Complainant – Exhibit 5 – pp.97-117 Brief of Evidence
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Charge 10 – Persistently Contravene FVIO)
The Crown case is that BAKER between 5 – 22 August 2018, by his abovementioned actions, persistently contravened the FVIO against him. (This forms the basis of:
Charge 10 – Persistently Contravene FVIO)
On 22 August 2018, BAKER attended at the Sale Police Station. A formal recorded interview was conducted. BAKER denied all allegations. In relation to the allegation that he pushed the Complainant’s head into boiling water on 29 August 2017, BAKER stated the Complainant had spilled the water on herself. In relation to the allegation that he punched the Complainant on 13 August 2018, BAKER stated that she had hit herself a number of times. Further, BAKER denied contacting the Complainant in contravention of the FVIO and added a friend had access to his mobile telephone and he may have contacted the Complainant.
E. VICTIM IMPACT STATEMENT:
The Complainant Ella Anderson and her mother Sarah STUBERS have made Victim Impact Statements.
F. FORENSIC SAMPLE:
33. A Forensic Sample Order is sought.
H. MAXIMUM PENALTIES:
The maximum penalties for the offences are as follows:
· Recklessly cause injury – 5 years imprisonment
· Contravention of a FVIO intending to cause harm or fear – 5 years imprisonment
· Attempting to Pervert the Course of Justice – 25 years imprisonment
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· Stalking – 10 years imprisonment
· Persistent Contravention of a FVIO – 5 years imprisonment
· Threatening to Distribute an Intimate Image – 1 year imprisonment
· Unlawful Assault – 3 months imprisonment
· Discharging a missile – 6 months imprisonment
J. PRE-SENTENCE DETENTION:
The accused BAKER was arrested on 22 August 2018 and was remanded in custody. He has served …days pre-sentence detention (not including the plea date).
K. PRIOR CRIMINAL HISTORY:
The accused BAKER has prior convictions to be alleged.
L. TIMING OF PLEA OF GUILTY:
The matter was resolved on the committal date on 5 July 2019. No witnesses were cross-examined. BAKER is entitled to a discount on his sentence because of his pleas of guilty. Section 6AAA of the Sentencing Act 1991 applies.
J E GOETZ
Plea Prosecutor
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