Director of Public Prosecutions v Baldwin

[2015] VCC 688

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00443

DIRECTOR OF PUBLIC PROSECUTIONS

V

ADAM BALDWIN

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2015
DATES OF SENTENCE:	22 May 2015  and 28 May 2015
CASE MAY BE CITED AS:	DPP v Baldwin
MEDIUM NEUTRAL CITATION:	[2015] VCC 688

REASONS FOR SENTENCE
---

Subject: Criminal Law – sentence

Catchwords: plea of guilty to one charge of recklessly causing serious injury- punches and kicks to face and body – some provocation but disproportionate - victim hospitalised 19 days – injuries classified as upper end of mid-range - dysfunctional childhood – limited education – early exposure to violence, drugs and alcohol – poor adult role models – father of three young children with three older stepchildren – period on remand (first time in prison) followed by continuing abstinence from substances whilst on bail – no reoffending or breaches of bail conditions – prior convictions for minor violence.

Cases Verdins v R [2007] VSCA 102, Boulton v R [2014] VSCA 342

Legislation: Sentencing Act 1991

Sentence: 2 years imprisonment with 2 year Community Corrections Order. 
             Non-parole  period not appropriate

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. O'Halloran	OPP
For the Accused	Ms B. Franjic Mr S Tovey 28/5/15	Matthew White & Associates

HER HONOUR: 

1Adam Baldwin, you have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment. 

2On 22 October 2014 you were at a house in St Albans, drinking in a group which included your mother, Dianne Baldwin, an associate of yours, Tim Briscoe, the victim, Kevin Roland, and his friend Dale McCalman, who was the occupier of the house.  During the evening, you left to buy more alcohol and to run some other errands.  Meanwhile the victim continued to drink heavily and became aggressive, throwing things around the house.  Ms Baldwin told him to stop, which angered him more and he pushed her.

3She told Briscoe to go and get her husband, Glen Earl, from their nearby home.  Briscoe and Earl arrived at the McCalman home and Briscoe pointed out Roland to Earl, whereupon Earl punched Roland to the face causing him to fall to the ground.  Briscoe and Earl then left.  A short time later you returned home and were told of what had occurred.  You became very angry and stated that you wanted to return to the McCalman home to let the victim know he could not push your mother around.  Having been told what had occurred, you knew that Roland had been punched and that he had fallen to the ground.

4You and Earl went to the McCalman home and saw Roland lying on the kitchen floor.  You went to help him up, at which point he started throwing punches at you.  You then stomped on his face, kicked him a couple of times in the lower back and a couple of times in the face.  Earl told you to stop.  You left the house and returned home.  McCalman subsequently found Roland on the kitchen floor and called 000.

5Roland was admitted to hospital to the Intensive Care Unit and had chest tubes inserted on both sides and an endotracheal tube for breathing.  He was discharged to a ward after several days and spent nearly three weeks in hospital.  His injuries were bilateral rib fractures, bilateral pneumothorax, nasal bone fractures requiring plastic surgery and a frontal haematoma.  The opinion of a forensic physician who has examined the medical record is that the chest injuries were potentially fatal; however, there is no evidence as to any lasting effects suffered by the victim.

6Roland told the police that he could not remember any of the circumstances surrounding the attacks on him.  Your fingerprints were found on a beer bottle and packaging in the house and you were arrested two days later.  You denied having returned to the house with Earl at the relevant time, but when interviewed you said you had gone there, found the victim knocked out and requiring assistance and that someone else rang 000.  You denied having assaulted him at all.

7You were remanded in custody until being released on bail on 9 December 2014.  You pleaded guilty at the committal mention in March this year at a relatively early stage and for that you are entitled to a discount on your sentence, for having facilitated the progress of the case and for avoiding the need for a trial, with the expense and inconvenience that would entail.  A plea of guilty can be regarded as an indication of remorse, but in this case that is tempered by the fact that you denied to the police that you had been involved at all.

8In your consultation with the psychologist Mr Cummins, you told him you accepted full responsibility for the attack but added that it would not have happened if  Roland had not tried to hit you.  It may be that you cannot see the error in having gone there with a misplaced sense of grievance about your mother.

9The co-accused Earl pleaded guilty to one charge of unlawful assault and was convicted and fined $1,000.

10Violence of any kind is a serious matter, the more so when serious injury is caused.  In this case your violence towards Roland was precipitated by the punches he aimed at you as he lay on the floor.  The broader context is his own aggression displayed earlier to Dianne Baldwin followed by his violent behaviour in pushing her, resulting in him being punched by Earl and then your decision to return to the house in an angry state on hearing that he had pushed your mother.

11It was submitted by Ms Franjic, who appeared on your behalf, that your actions were not planned or premeditated but were spontaneous and that that reduces your culpability somewhat.  Although violence to women in any form is never acceptable, those present at the time Ms Baldwin was pushed should have left immediately, which would have communicated the message to Roland that his behaviour was unacceptable.  Your return with Earl to mete out your misconceived response, whatever it was that you intended, is yet another example seen all too often in courts of men who see themselves as heroes of the hour avenging bad behaviour towards women in their lives.

12You had the advantage over Roland, as you were standing and he was lying on the floor, having already been assaulted.  The provocation he communicated to you by his punches should have lost its significance in the prevailing circumstances.  For these reasons, as well as taking into account the serious injuries sustained, general deterrence is an important component of any sentence for such an offence and usually, as in this case, specific deterrence is no less important.

13You are a 32-year-old man who has been in a long-term de facto relationship with Melissa Baldwin.  She is aged 33 and is the mother of six children, of whom the older three are from a previous relationship and you are the father of the three younger ones, aged seven, six and three.  You and Melissa have been separated twice over nine years, once for as long as 12 months, because of your use of alcohol and cannabis.  Those problems had their origin in your upbringing.

14Your mother is an alcoholic who has used cannabis daily for years.  Your father left the home when you were three and thereafter your mother was subjected to violence from successive partners.  This led to her turning to alcohol and cannabis and you grew up exposed to that and to the violence, which was also used against you for disciplinary purposes.  Your mother introduced you to cannabis at the age of nine and you have drunk alcohol since the age of 15.  You have more recently used cannabis as a medication to treat persistent headaches, the cause of which was not known until a diagnosis last year of what has been described as widespread sinus disease. 

15You have a very limited education with consequent limitations in literacy, but despite that you had a good work history from the age of 16 until your early 20s.  You have not worked for any extensive period since then but have generally stayed home helping with the children.  Although your partner said you did not really help and you were not a real father figure, you were the sole carer for your elder son Christian for ten months at one stage.  You are now registered with a job agency, looking for work.

16Your mother has been in trouble with the law and your stepfather has served time in prison.  It is put that your mother has been a bad influence on you, but more recently the positive influence of your partner, who has no prior convictions and no substance abuse problems, has helped to bring about a change in you after your release on bail last December.  That change appears to be a significant one.  The offending occurred when you had been separated from Melissa for about 11 months, brought about by your drinking and accompanied absences from home, together with spending money on cannabis use.

17The time spent in custody saw you cease drinking and using drugs and you have been able to maintain that abstinence since then with one clean urine screen to that effect.  Melissa gave evidence in support of your changed attitude and your father has also written a letter to the court offering his support.

18Mr Cummins assessed you recently and diagnosed an adjustment disorder with mixed anxiety and depressed mood, which would have been at moderate severity at the time of the offending, but is not relied upon as attracting the principles of the decision in the case of Verdins.  You consider that your judgment was affected by alcohol and drug use, with which Mr Cummins agreed, and by anxiety caused by those daily headaches and concern about the children at the hands of Melissa's ex-partner.

19You told Mr Cummins that you regretted your actions and that you had gone overboard.  Mr Cummins described you as a reasonably serious and cooperative interviewee and that you gave him a detailed and relevant history.  It may be that your apparent change in motivation to conform with normal social expectations and live a productive life is in the initial stage of emerging maturity.

20You have expressed concern for your partner having to look after the children alone when you are imprisoned again, as she does not have parental support and has no other obvious means of assistance.  She said in evidence she had come to rely on your help since your release on bail when, for the first time, you have been substance free and have remained at home.  That will be a source of anxiety for you in custody and I take that into account as a mitigating factor.

21In assessing your likely chances of rehabilitation I must consider your criminal history, which includes convictions for recklessly causing injury and recent convictions for assault and contravening a family violence intervention order.  Some years ago you were convicted of assault with a weapon, possessing a controlled weapon and two charges of possessing a dangerous article on separate occasions, the last of these charges being seven years ago.

22Despite the serious nature of many of these charges, you have never been sentenced to prison and it seems the recent experience on remand has had a salutary effect.  For the combined reasons I have mentioned, your prospects for rehabilitation, whilst guarded, are relatively positive.

23It was submitted on your behalf that, while the crime is a very serious one with serious consequences, the mitigating factors provide a balance with the result that a relatively short term of imprisonment of less than two years, allowing for a community corrections order to follow, would be an appropriate disposition.  In support Ms Franjic quoted from the Sentencing Snapshot of June 2014 that the median sentence for this offence was two and a half years with two to three years being the most common, the average being 2.5 to 2.9 years.

24In this case she submitted that a lesser sentence was justified.  The statistics, as is often said, are not particularly helpful because of the differences in cases, but I accept that they provide some sort of guide subject to the circumstances of the case and an appropriate intuitive synthesis.  The prosecution submission was for a prison term that exceeds a two-year sentence, thus ruling out the possibility of a community corrections order.

25The Sentencing Snapshot was created before the decision in Boulton and I must give careful consideration to the question whether in your case the punitive effect of a community corrections order could serve to replace a prison sentence in part.  Taking all matters into consideration, I am satisfied that a community corrections order could be of considerable benefit and would likely serve much better the requirements of just punishment and protection of the community in the longer term by means of your rehabilitation but in combination with a prison term.

26Would you stand now, please, Mr Baldwin.  Accordingly I sentence you to a term of imprisonment of two years.  You have been assessed as suitable for a community corrections order and it shall begin on the day of your release and last for two years after that.  You will have to perform 80 hours of unpaid community work within six months and you must be under supervision.  You must undergo assessment and treatment for drug and alcohol abuse and treatment for any mental health problems that are identified.  You must undertake any other programs to address your offending to which you might be directed.  Within two working days of your release you must attend the Corrections office at 10 Foundry Road, Sunshine. 

27Pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty to this charge I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years and six months.  The 47 days of pre-sentence detention is declared as already served and I shall cause that to be noted on the court record.

28The prosecution seeks orders for disposal of items and for a forensic sample of saliva to be obtained.  Through your counsel you have consented to both those orders being made.  I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary. 

29Just take a seat for a moment, please, Mr Baldwin.  Are there any other matters I have omitted first of all, Mr O'Halloran?

30MR O'HALLORAN:  Your Honour, on the last occasion we made application for a forfeiture order as well.

31HER HONOUR:  I see, disposal and forfeiture.

32MR O'HALLORAN:  Thank you.

33HER HONOUR:  Are they in the same document?

34MR O'HALLORAN:  Separate documents.

35HER HONOUR:  Separate documents.  All right.  Well, I will make that order for forfeiture as well.

36MR O'HALLORAN:  Thank you, Your Honour.

37HER HONOUR:  Anything else, Ms Franjic?

38MS FRANJIC:  No, Your Honour.

39HER HONOUR:  All right.  Ms Franjic, if your client's partner and any other family member who might be here would like to say goodbye to your client, I will allow that to take place.

40MS FRANJIC:  Thank you, Your Honour.  I am sure she would be grateful for that opportunity.

‑ ‑ ‑

28 MAY 2015

The matter was brought on for mention by Defence seeking to have a non-parole period imposed.

Pursuant to s11(1)(b) of the Sentencing Act 1991 Her Honour considered that the nature of the offence and the past history of the offender made the fixing of a non-parole period inappropriate.

-  -  -