Director of Public Prosecutions v Baldwin

[2018] VCC 1620

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02383
CR-17-02384
CR-17-02385

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BALDWIN
SKYE CARTER
JAMES SLATER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2018
DATE OF SENTENCE:	2 October 2018
CASE MAY BE CITED AS:	DPP v Baldwin
MEDIUM NEUTRAL CITATION:	[2018] VCC 1620

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate (Plea) Ms L. Spence (Sentence)
For Accused Baldwin	Mr S. Kenny
For Accused Carter	Mr D. McGlone
For Accused Slater	Mr B. Tait

HIS HONOUR: 

1Although each of you, Skye Carter, Jason Baldwin and James Slater were arraigned on separate indictments, you are co-accused in every sense.  In order to make sense of the factual circumstances, I intend to deal with the circumstances or your circumstances, Ms Carter, as it was your concern for your children and the difficulties that you were having with your ex-partner that are central to the offending and what motivated it.

2Skye Carter, you are a 24 year old mother of four young children.  You are currently in a relationship with Mr Slater.  He is the father of your two youngest children, one born just weeks ago.  You were previously in a relationship with the victim in this matter.  He, that is the victim, is the father of one of your children, a boy.  He also acted as if he were the father to another of your children, a girl.

3After the relationship between you and the victim came to an end, you looked after the children that I have just mentioned.  There were no Family Court orders or involvement from the Department of Health and Human Services in respect to the children.  This seems as a consequence of you not having the resources for Family Court lawyers.  The arrangements with your ex-partner were very informal.

4After separation from the victim, you formed the relationship with Mr Slater that I have mentioned.  The two of you looked after the two young children.  As I have already said, informal arrangements were made between you and the victim for him to see the children.

5Approximately three weeks before the offending, the victim requested to have the children stay for a weekend.  It was around the birthday of the young boy.  This was agreed to by you, Ms Carter, and indeed you, Mr Slater.  A further agreement was made that the children can stay another night beyond the weekend, however thereafter the victim would not return the children to you.  You and Slater tried to negotiate with him to no avail.  After getting nowhere, you went to the police for assistance.  You were told by the police that without formal Family Court orders or court orders, the police could not become involved.

6You faced a stalemate where you could not see or have back your very young children.  It was said by the prosecution that there were lawful avenues you could have explored with community legal services.  Of course those services exist, they are overburdened.  You faced delays in getting hearings, even urgent ones before the Family Court.  So too however did the victim have recourse to the same avenues.  He, rather than take that course, kept the children at his house excluding you from seeing them.

7In those circumstances, unfortunately you determined to go to the victim's house and take the children back.  You, Mr Slater, were the one who would actually go into the house to take the children.

8In the mid-morning of 13 March 2017, you both went to the victim's address.  You, Mr Slater, had recruited the younger Mr Baldwin to come with you as backup.  He, that is Mr Baldwin, cycled up on his BMX.  On arrival, you, Ms Carter, remained in the vehicle you had arrived in.  You, Mr Slater, and you, Mr Baldwin, went to the house where you, Mr Slater, called out to the victim to come out and to talk.  The victim drew the curtains and remained inside.

9You, Mr Slater, then forced a security door and, with Mr Baldwin, went into the house.  Your intent was to assault the victim.  You, Mr Slater, took a steel pole into the house.  You, Mr Baldwin, only knew of the weapon as you walked in and you, Ms Carter knew nothing of the weapon.  You, Mr Slater, confronted the victim in the hallway and yelled at the victim for not letting Ms Carter see her children.  You held the weapon menacingly and then head-butted the victim, loosening his front teeth.

10You two men took the children to where Ms Carter was outside.  The police were called.  You, Mr Baldwin, had headed off to go about your business.  You were arrested three or so hours later.  You, Ms Carter, and you, Mr Slater, went with the children to an address in Melbourne where you were arrested and the children were returned to the care of the victim later that night.

11After arrest, all three of you were remanded in custody.  You each secured bail between four and six weeks later.  The proceedings thereafter in the Magistrates' Court and County Court took over a year.  Each of you finally resolved these matters in September 2018.  At that point, the charges on the indictment crystallised to home invasion for each of you and intentionally cause injury for you, Mr Slater, and you, Mr Baldwin.

12There had been initially charges of kidnapping and the like.  Thus, your pleas of guilty albeit not at the earliest opportunity, are nonetheless at a point when the charges reflected the criminality involved, thus the pleas of guilty have value, certainly by reason of the victims not being required to give evidence at a trial.  Your pleas are indicative of responsibility being taken and to that end, bespeak of developing remorse.  The sentences that I will impose will be less and of a different kind because of your pleas of guilty.

13Home invasion is always serious offending.  The victim was entitled to feel safe in his house.  The fact that children were present, were witnesses and involved in the whole incident makes it that much more serious.  However, as the High Court reiterated, punishment for crimes must consider all the individual and unique circumstances of the offending and the offenders.  This was an ill-considered escapade to bring children back to their mother after three weeks of separation.  Police had been consulted to help, there was none to be had.  Orders of a court or assistance from DHHS is what ought to have been investigated, not the breaking in and taking of the children.

14The weapon was a factor adding to the seriousness.  The separate head-butt was also gratuitous.  That means it was unnecessary.  You did not have to do that.

15All that said, I cannot see this home invasion as anything like the serious examples of that crime that these courts see all too regularly.  In your case, Ms Carter, you stayed outside and disavowed any violence.  You just went to get your children back.  You, Mr Baldwin, were simply brought into this at the very last moment, not knowing the background in any detail at all.  You, Mr Slater, were the older and more seriously involved.  Your sense that by keeping the children for so long that, in the words of the victim, "Enough was enough," ought not to have been expressed by what you did.  Further efforts should have been taken in other areas.

16So while denunciation and deterrence are always prominent in dealing with crimes of this nature, there are aspects of what occurred and why that allow for less severe expressions of denunciation and deterrence.  That is underlined by the personal circumstances of each of you.

17Starting with you, Mr Baldwin.  I have heard and granted an application made by you for a sentence indication.  The grant of the application meant that I had indicated to you I would not require you to serve any more time in gaol than what you had already served on remand. 

18The key aspects of that decision was your limited role in the offending, your very young age being just 18 at the time and now just 19, and your lack of any ingrained criminality both before and since this offence.

19As to your personal circumstances, you were raised in Ballarat by your mother along with your six brothers and sisters.  The violence perpetrated in the family home by your father directed at your mother and the children was extreme.  It cannot be ignored that your upbringing was deprived.  Ordinarily, such circumstances flow into the offspring becoming antisocial and delinquent.  To your credit and that of your mother, that did not happen.  Your mother and your siblings and you have formed a strong, beneficial bond.  You were not able to gain much from education, leaving after primary school.  You have worked as a labourer in recent times.  You formed a relationship and you live with your partner and a young child.

20As indicated to you, I consider that beyond the 46 days that you spent in custody, a community corrections order would thereafter satisfy all sentencing options.  You were found today to be suitable for a community corrections order.  The sentencing purposes that are the most important in your case are you rehabilitation.  The community will benefit from you continuing to reform and settle permanently as a law abiding man contributing and sustaining your young family.

21You have many difficulties confronting you.  Your intelligence is not high.  There will not be that many vocational or job opportunities but you must make sure you do what you can and stay out of trouble, otherwise you will just spend time going in and out of gaol.  I will return to the details of the community corrections order in due course.

22Turning to you, Skye Carter.  So I have already stated you are a young woman already with the responsibility of four young children.  Three children reside with you.  You have some residual involvement with the Department of Health and Human Services but by and large your parents along with Mr Slater when possible the three children.

23In my consideration of penalty, you have the very considerable benefit of having no criminal history save for this offending.  Your upbringing was difficult.  You are the youngest of three.  Your father and mother were addicted to heroin.  Your father died of an overdose when you were just three.  Your mother shortly thereafter resolved to put in order her troubled life which saw her imprisoned for outstanding matters.

24You were raised by your grandmother and after your mother was released, you returned to her but you remained very close to your grandmother.  Your mother re-partnered and this was a very stabilising development.  Your mother has been and remained very supportive of you although there are some difficulties from time to time I was told yesterday.

25Your schooling was all too brief.  You had in recent times qualified as a hair dresser and a beautician.  I have mentioned your relationship to the victim and to Mr Slater.  You remain in a relationship with Mr Slater, as I said, who is in fact the father of your child born some weeks ago and the child a little older than that.

26You live separately at the moment and are sorting out family and child related matters with the Department of Health and Human Services.  You have no concerning mental health problems.  You have learnt from your upbringing the deep grief that comes from drug addiction.  You have stayed away from all drugs to your credit.

27You are, it seems to me, a stabilising influence on Mr Slater.  Given your limited role in the events at the victim's house though, you were involved as an instigator.  I consider that a community corrections order can lead all sentencing purposes of denunciation and deterrence.

28In your case, your age means that you are not by statute a young offending but nonetheless, your age and lack of any criminal history means I can and should give real emphasis to your rehabilitation.  A community corrections order can operate to punish and rehabilitate simultaneously.  Your time in gaol on remand was eye opening and makes your return to crime very much less likely.  You have been sufficiently deterred.  I will outline the details of your community corrections order shortly.

29As to your personal circumstances, Ms Slater, you are now 23, 22 at the time.  You are a young man.  You have some relevant Children's Court matters and you have some subsequent penalties which I have learned about through your assessment for a community corrections order.  It seems you got to Year 10 at school in Melton, growing up in that area and also in Broadmeadows.

30After school, you had two relatively short stints in apprenticeships.  You have not been in employment of late.

31You have, in recent times, particularly struggled with drug use, in particular ice.  This is of concern.  You were the subject to a community corrections order at the time of the offending.  Other offending has resulted in the community corrections orders being breached and you were imprisoned with a community corrections order imposed on release.  So it seems on 20 August 2018, you were released after about 130 days in custody. 

32You have resumed on the community corrections order, now two of them, and according to your case manager, you are motivated.  However, you do have, so it is reported, two unacceptable absences to date.  Your recent criminal behaviours and the up and down adherence to community corrections orders are all matters making your reform and rehabilitation more problematic than that of the other offenders.

33Your much more serious role in both the offences and the other matters and issues that I just mentioned increases the need for deterrence to you.  General deterrence is of course prominent as I have mentioned.

34The submission made just now from the prosecution was that on receipt of the expert report, if I can put it that way, from the Community Corrections staff as to your suitability and how you are travelling on the community corrections order, the submission made was that the Director of Public Prosecutions is of the view that a sentence involving the time you had served in custody, some 37 days plus a community corrections order was within range.

35I say that seems to me to be a very fair and generous submission.  There might be others who would say that a community corrections order alone would not address all sentencing purposes of denunciation and general deterrence and specific deterrence and protection of the community as well as your rehabilitation.  The time that you served in custody before bail was granted was 37 days.  Ordinarily, it might be thought not sufficient for a home invasion.

36However, it is always a grave step to send a young man to gaol, in particular back to gaol after being there for the periods of time that you have.  This is a moment that you must seize, Mr Slater.  If you do not take this opportunity to comply with community corrections orders that I impose, then do not doubt that I will remember this particular case.  Remember it for the approach taken by the Director of Public Prosecutions in a fair and generous approach to you.  So if you do not take it up and you breach this community corrections order, you will go back to gaol for a period of time that will disallow any further community corrections orders.

37You will lose contact with your young children.  You will not be the same.  You have seen the people in gaol in the times that you have been there.  You can be like them, 30 year old, 45 year old men with no real life or one that has a partner and children.  The choice is yours starting today.

38The sentences that I impose are the following for you, Mr Baldwin.  For committing the crime of home invasion and intentionally cause injury, you are sentenced to 46 days' imprisonment and a community corrections order for ten months.  You must do 75 hours of unpaid community work.  You must do programs involving mental health and you must do programs that the Office of Corrections ask you to do.  There will be a detailed document produced and you must - it will be read out to you and if you consent to it and sign it, that will bring the matter to an end.

39I have been told that you spent 46 days in custody before being granted bail.  That figure having been reckoned, I declare that you have already done 46 days or each and every day of the sentence of imprisonment that I have just imposed.  I will make sure that that is entered into the records of the court so the prison authorities understand that you have done the term of imprisonment that I have just imposed, each and every day of it.

40Ms Carter, for the crime of home invasion, you are convicted and placed on a community corrections order for 12 months.  The only condition that applies to your community corrections order is supervision.  I have considered carefully whether you should do community work, there was a recommendation that you were suitable for it and could do it.  I just cannot see how it can be done.  It is likely to set you up to fail, cause more difficulties than it is worth because the time that I would ask you to do would not be significant.

41What convinced me more was that you, with no prior convictions at your age, spent 30 days in gaol before being granted bail.  So in addition to the community corrections order, I sentence you to 30 days' imprisonment.  I declare that you have already served 30 days or each and every day of the sentence I have just imposed.  I will ensure this declaration is entered into the records of the court so that the prison authorities understand you have done every single day of what is required.

42Mr Slater, you will be convicted for the crime of home invasion and intentionally cause injury.  There will be one aggregate sentence.  It will be a sentence of imprisonment of 37 days together with a two community corrections order.  You will be required to do 120 hours of unpaid community work together with programs relating to abuse of drugs, to deal with your mental health, and any other program the Office of Corrections considers appropriate for you to ensure that you are less of a risk of committing further offending.  Do you understand all that?

43OFFENDER SLATER:  Yes, Your Honour.

44HIS HONOUR:  You have already served 37 days in custody.  I will ensure that that declaration is entered in the records of the court so no one is left in any doubt that you served each day of the sentence that I have just imposed.

45It will take some time to produce all of that.  Had you pleaded not guilty to these offences and been found guilty of them, Mr Baldwin, I would have sentenced you to nine months in a Youth Justice Centre.

46Had you pleaded not guilty to these offences and been found guilty of them, Ms Carter, I would have imposed a three month term of imprisonment plus a two year community corrections order.

47Mr Slater, had you not pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of 12 months with a two year community corrections order.

48There are orders relating to s.464ZF of the Crimes Act as to retention and the securing of forensic samples.  I intend to grant all the orders sought by the prosecution on the basis of seriousness of the offending and it is in the interests of justice that each of you are subject to the forensic sample order or the retention of the sample already given.

49Is there anything further required?

50MR McGLONE:  No, Your Honour.

51MR KENNY:  No, Your Honour.

52MR TAIT:  No, Your Honour.

53MS SPENCE:  No, Your Honour.

54HIS HONOUR:  If I have not said it, each will be the subject of supervision.  That has already caused a problem in your area, Mr Slater, just be aware of that.  That is like being in prison in the community.  You have to do the supervision.

55Mr Baldwin, the order is for ten months.  It starts on 2 October and goes to 1 August.  The conditions that apply to everyone who is on a community corrections order are the following.  This applies to everyone, I can read them out, so listen in.

56You must not commit another offence for which you can be imprisoned during the time the order is in force.  Almost everything you can think of would be an offence that is punishable by imprisonment.  Whether the magistrate gives you that or not, it does not matter.  It breaches this order and as I have made plain, I will be none too happy if anyone comes back by reason of committing further offences.  There will be likely one outcome.

57In addition to that condition, you must comply with any obligation or requirement under the Sentencing Regulations.  They will need to take a photograph of you to identify you just cooperate with that.  In fact, all these other matters I am about to go through are about cooperation and the like.

58So you must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days of the order starting.  That is the Ballarat Community Correctional Service.  They are in Mare Street, Ballarat.  The address is here.  You must let the Community Corrections Officer know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so.  You must obey all lawful instructions and directions from the Office of Corrections.

59In your case, Mr Baldwin, you have got to do 75 hours of unpaid community work over the ten months.  You must be under supervision.  You must undergo any mental health assessments and you must participate in programs and courses to address factors relating to your offending.  If you sign that, it will bring the matter to an end.

60Mr Kenny, just take it down there.  The others will take some time.

61MR KENNY:  Yes.

62HIS HONOUR:  Ms Carter, I am not going to go over all the mandatory conditions that you have just heard but they are fundamental.  Do not commit any further offences and you have got to go to the Community Correctional Service, I am told it is Broadmeadows for you.  That is in Dimboola Road, Broadmeadows.  The address is here.  You have heard all the things about cooperation and letting them know what you are doing and so on.  But you must be under the supervision of the Community Corrections Office for a period of 12 months from today's date until 1 October.  If you consent to that, sign it.

63Mr Slater, I have made clear what all the mandatory conditions were.  In addition to those mandatory terms, you must do 120 hours of unpaid community work over two years.  You must be under supervision of the Community Corrections Office.  You must undergo assessment and treatment for drug abuse and dependency.  You must undergo mental health assessments and treatment.  You must participate in programs and courses that address factors relating to your offending.  Sign that and it will bring the matter to an end.

64Ms Carter and Mr Slater, I need to explain to you in respect of the order that I have granted, that you provide a forensic sample.  What occurs is that you must attend at a police station to have the sample taken.  The place will be identified on the form here.  What has to happen is this, it is a bit odd but listen in.  There is a window that opens up that you can go to the police station.  So four weeks have to pass from today and after that, you have got four weeks to do it.

65OFFENDER SLATER:  Yep.

66HIS HONOUR:  If you do not do it, then you will be in breach of this order.  Now, when you go, if you do not cooperate, then the people who are there to take the sample are authorised to use reasonable force to ensure the forensic sample is taken.  The way through is to cooperate.  Do you understand?  It is a scraping or a swab from your mouth as I understand it.  Thank you.

67Mr Baldwin is a retention, is it?

68MS SPENCE:  In relation to Mr Baldwin, it is automatic.  So retention, yes, that's correct.

69HIS HONOUR:  Right.

70I thank counsel for their considerable assistance in this matter.  As I understand it, I do not have to deal with Mr Baldwin's 464 matter retention any further by documents and the like.  So is there anything else that requires attention or order the like?

71MR KENNY:  No, Your Honour.

72MR TAIT:  No, Your Honour.

73MR McGLONE:  No, Your Honour.

74HIS HONOUR:  All right, well when I adjourn, each of the accused can leave the dock, thank you.

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