Director of Public Prosecutions v Banks (a pseudonym)
[2019] VCC 1185
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART BANKS (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE GAYNOR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 1 August 2019 |
| CASE MAY BE CITED AS: | DPP v Banks (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1185 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Spague | Office of Public Prosecutions |
| For the Accused | Ms J. Hughes | Papa Hughes Lawyers |
HER HONOUR:
1Stuart Banks[1], you have pleaded guilty before me to one charge of using a carriage servicing in a harassing way, one charge of criminal damage, one charge of aggravated burglary, one charge of recklessly causing injury, one charge of common assault, and you have also pleaded to the summary charges which have been uplifted for hearing in this matter, pursuant to the provisions of the Criminal Procedure Act, one summary charge of contravening a family violence order and two summary charges of entering private property without express or implied authority.
[1] Stuart Banks is a pseudonym.
2The facts underlying this offending are as follows. The victims in this matter were your former partner, Louise Piper[2], and her partner, Allen Garrett[3]. Ms Piper and Mr Garrett had been a relationship for about three months prior to this offending. You and Ms Piper had been in a relationship for about 12 years, although you had not married, and you have children together - boys, aged
11 and seven years, who reside with Ms Piper.
[2] Louise Piper is a pseudonym.
[3] Allen Garrett is a pseudonym.
3You and Ms Piper had most recently separated, according to her about six months before the offending - although according to you, it was three to four months. In any event, it was between four and six months prior to this offending, and you have since your separation been living with your parents.
4On 10 November 2018, Ms Piper received a picture message on her phone from you which was taken outside her home address of a car that belonged to Mr Garrett. Later that day, you attended her home and confronted her about the car and verbally abused her. Mr Garrett had left the address by this stage.
5On 18 November 2018 at 9.30 am, Ms Piper and Mr Garrett were at Ms Piper's home in her bedroom when Ms Piper heard a noise from the backyard and then heard the laundry door open. She and Mr Garrett then saw you standing in the doorway of the bedroom. You had entered the property by jumping the fence and walking in through an unlocked back door. Your entrance into that property underlies summary Charge 16, entering a private place without authority.
6You became upset on seeing Ms Piper and Mr Garrett together, and you yelled at her then proceeded to punch the wall of the bedroom, putting a hole in the plaster. Ms Piper got up to get between you and Mr Garrett, and there was some pushing and shoving in the hallway between you and her.
7You caused damage to a number of plaster walls in the house by punching and kicking them. Overall, you caused one hole to the bedroom wall, four holes to the hallway wall, and one hole, and further damage, to the wall of the loungeroom. Those actions underlie Charge 2 on the indictment, criminal damage.
8You left the house through the front door and went to your car, which was parked outside. There, you got a cricket bat from the boot and returned to the house. You walked towards Ms Piper, who was standing in the driveway, and when she tried to stop you from going back into the house, pushed her away and went back inside the house through the front door while you were holding the cricket bat. Those actions underline Charge 3 on the indictment, aggravated burglary.
9Once inside, Ms Piper talked to you and stood between you and Mr Garrett, and she managed to push you into the bathroom where the two of you had a verbal argument. A few minutes later, you walked out of the bathroom towards Mr Garrett, who was in the hallway. He verbally confronted you and managed to push you out the front door of the house.
10Once outside, you stood in the driveway and continued to yell at both Ms Piper and Mr Garrett, at which time you were still holding the cricket bat and were posturing with it in such a way as to constitute a threat of force against
Mr Garrett. Those actions underlie Charge 5 on the indictment, common assault.
11You then got into your car and drove away. A few minutes later, you drove past Ms Piper's address while she was outside and yelled abusive words at her, and soon after at about 9.55, sent a text message saying you had seen Mr Garrett's car at the address on the previous Friday and Saturday whilst you were on your way to work.
12During the incident and altercation with you, Ms Piper sustained injuries to her right hand and arm, and she had bruising and pain to her right palm, fist, forearm, and upper arm. Your actions in relation to her underlie Charge 4 on the indictment, recklessly causing injury.
13The next day, on 19 November 2018, between 7 am and 3.15 pm, you attended Ms Piper's house in her absence, taking a plastic flower that you had once given her from one of the rooms and putting it in an ashtray. You then ripped the heart off a toy teddy bear and put it on her bed, placing lubricant on the teddy bear before also placing that on Ms Piper's bed. Those actions, and entering the house, underlie summary Charge 3, entering a private place without authority.
14Ms Piper returned to the house later that day and noticed the rose and the teddy bear on her bed. At 3.30 pm that day, you returned to Ms Piper's address to give her something, to give something to the children, and you asked her if she had seen the rose. You said that your love for her was dead, and again you began verbally abusing her, this time in front of the children.
15Between 10 and 19 November 2018, you sent a large number of text messages to Ms Piper's phone. Many of them were abusive and vulgar, and you repeatedly called her a 'slut' and a 'cunt', and you accused her of cheating on you. You called her an 'ugly piece of shit' and you said, 'Die, cunt.' In some of the messages, you said you had driven past her house at various times and seen other cars in the driveways. These messages and your sending of them underlie Charge 1 on the indictment, using a carriage service in order to harass another person.
16On 20 November, you were arrested at your home address. With your consent, police seized the cricket bat you had used as well as the clothes you wore and the phone that you used to contact Ms Piper. You participated in what must be conceded to be a very cooperative and full record of interview with police.
17You told them that you had attended Ms Piper's house on Sunday morning to pick up your cars, you saw Mr Garrett's car in the driveway and suspected he was going to be there. You told them how you got into the property, and that when you were inside, you saw Ms Piper and Mr Garrett in the bedroom, which made you very angry. You said you started punching the walls, which caused major damage. You said you also broke your hand in the process.
18You told police you walked out to the car, that you got the cricket bat and you were going back to give Mr Garrett 'a good beating' with it. Once inside, when you saw Mr Garrett in the hallway and Ms Piper was there standing between you, you said she was trying to calm you down and then she pushed you into the bathroom and held you there.
19You said that when you got out of the bathroom, you saw Mr Garrett and you said you were going to smash his face, and you went to swing the bat, but you could not do it because of the pain in your right hand. You had in fact broken a finger and a knuckle from the previous damage you had done to the house.
20You told police that you went back to Ms Piper's house the next day, when she was not present, and entered and undertook the actions that I have already outlined. You said that you saw the damage you had caused to the house, and that this upset you because your children would have to go there and you did not want them seeing something like that. You also admitted sending the phone messages to Ms Piper.
21You were charged and remanded in custody to appear at the Melbourne Magistrates' Court the next day.
22A family intervention order was taken out by Ms Piper on 21 November, at which time you were present. Further, on 22 November 2018, Mr Garrett took out a personal safety intervention order. That was served on you at the Melbourne Assessment Prison, where you were then held. The conditions of the interim family violence interim order included a prohibition on you contacting Ms Piper, although you were permitted contact with the children.
23On 9 March 2019, Ms Piper was at your parents' home, where she was picking up her children, and while she was there you called the landline phone at the address. One of the children answered it, and you asked your son to put
Ms Piper on, saying that you would not say anything bad to her. She then took the call, and you started to talk to her about the incident on 18 November, her statement, and about being with another man.
24This contact was in direct contravention of the conditions of the interim family violence intervention order. You also tried to find out where Ms Piper was moving to by asking her children for the address, and this attempt to locate her was also a contravention of the intervention order. Those actions underlie summary Charge 15, contravening a family violence intervention order.
25This matter proceeded through the committal stream at the Magistrates' Court. There, a contested committal hearing was listed but resolved prior to its commencement. The charges were laid, and you indicated guilty pleas; that is, you entered a plea of guilty to the relevant charges on that day, which was
21 March 2019.
26You have a brief criminal history. In 1998, you were dealt with for shoplift.
In 2001, you were dealt with for criminal damage for which you received a community-based order. In 2001, the order was reimposed because you breached it. In 2006, you were placed on a 12-month intensive correction order by Her Honour Judge Pannam, as she then was, of this court on charges of recklessly causing serious injury and affray, which involved an incident outside a hotel. You successfully completed that order. In 2007, you were fined for using an unregistered vehicle and fraudulent use of number plates. And that completes your criminal record.
27You have previously been dealt with for violence, and indeed, serious violence. But the circumstances of it, and I was provided with a copy of Her Honour's sentencing remarks, in my view are sufficiently distant both in time and in nature that I do not regard them as particularly relevant to the sentencing exercise before me.
28I now turn to your personal circumstances. You are now 38 years of age.
As I have said, you have been held in custody primarily at Ravenhall Prison since your arrest for these matters.
29You were born in Carlton and you grew up in the western suburbs, as well as a stint in Queensland with your parents. Your mother is Australian, and she has always held the occupation of home duties. Your father is of Greek descent and was born in Egypt. For most of his working life he has managed coffee shops. Both of your parents are in good health and they remain in a relationship. You have got three sisters, two younger and one older. It appears you are the only person in your family ever to have been in trouble.
30Interestingly, you told psychologist Warren Simmons, whose report was dated 10 July 2019 and was tendered on the plea, that because you were the only boy, you felt that you had been 'pretty spoilt' whilst you were growing up and were rarely punished or disciplined. You felt that you got away with a great deal during your childhood. You played soccer for many years, and when you were 17, tried to make a career in football but this did not eventuate.
31You had good contact with your extended family. You described close relationships with both parents, particularly in recent times with your mother, who has been visiting you whilst in gaol. You have also got good relationships with your sisters. It seems that you had a happy childhood with supportive and loving parents.
32You completed Year 12 at Maribyrnong Secondary College. You wanted to enter a course in hospitality, but did not get sufficient marks and were only able to attend TAFE, and you spent the next five years studying it but consistently failed a number of units and were unable to complete that qualification.
33You then went and obtained a forklift license, and essentially you have been employed on a full-time basis a forklift driver for the past 15 years, and indeed, you were so employed at the time of this offending.
34You met Ms Piper when you were 23 and she was 25. The two of you formed a relationship. It would appear an issue between you was that she was perhaps more responsible than you. You told Mr Simmons that you wanted to drink and party with friends, and that frankly you did not grow up.
35The two of you first separated nine years ago, when Ms Piper was unhappy and asked you to leave, but you had regular contact with your children and the two of you reunited two weeks later. You said there had been overall about five separations, which had all been initiated by something that you had done.
36You talked about issues personal to your partner, about being overweight, losing a great deal of weight, and having difficulties with excess skin, and that you took out a loan in order to pay for her surgery. You said that that meant that she then returned to employment after many years, and issues then developed again, more seriously, in your relationship. Indeed it would appear that at the time of your separation, she had formed a relationship with someone else.
37You talked to Mr Simmons about beginning drinking when you were about 19, that you would drink on a Thursday night after football training, and on a Saturday night. You described a regular pattern of going out drinking after a game on Saturday night until you became drunk. You said that this pattern went on for some years, but then you stopped, and instead, you and Ms Piper would go out. You would drink often a bottle of Ouzo between you. You also, following the breakdown of your relationship in May 2018, turned to drinking on a regular basis.
38However, you have never had any trouble with drugs, and although you appear to have drunk more heavily after you and Ms Piper separated, alcohol overall does not appear to have been a problem for you.
39Mr Simmons said that you were a 38-year-old man:
'who reported a childhood free from abuse or neglect. In fact, as the only male in the family, he felt that he was spoilt and allowed to get away with a great deal more than his sisters.'
40Overall, it was Mr Simmons' view that there was little in your childhood that would have left you vulnerable to substance abuse. Of the offending,
Mr Simmons said:
'On this occasion, Mr Banks found his partner and her new lover engaged in sexual activity in bed, and it is fairly clear that he did not cope with the emotions that resulted.'
41He also said that you had consumed alcohol, and it was in this context that the offending occurred. Importantly, he stated:
'Mr Banks did not attempt to justify his behaviour and expressed remorse for his actions. He recognises that his actions had a significant impact on others and were never justified. He fully accepts that the relationship has ended, and that he needs to move on.'
42It was also noted that you had used your time in custody to make changes in your life and had been reading numerous self-help books from the library.
Mr Simmons said there appeared to have no significant antisocial personality traits, and he also stated:
'Given Mr Banks' presentation at the interview, there was little to suggest that he was at risk of further offending, nor making contact with his ex-partner other than through appropriate legal channels.'
43Whilst in gaol, you have, in my view, undertaken some impressive steps.
In particular you have undertaken a course offered at Ravenhall, which is the Parenting Inside Program.
44I received a note from Frank Quasdorf, who is the facilitator of this program which is run by the Melbourne City Mission. In his letter dated 16 May 2019, Mr Quasdorf outlined that this was a 12-module program which was run over a three-week period, stating that the curriculum was designed specifically for fathers residing in a Correctional environment.
45The program aims to give you an increased awareness of child developmental stages, prosocial listening and speaking skills, understanding constructive ways to resolve major problems, learning how to bond with your children, developing an understanding of your children's personality traits and needs and your own personality, and a number of other extremely important parenting skills. You have undertaken seven of the 12 modules.
46Mr Quasdorf's letter said you had always been on time had made a valuable contribution 'to all brainstorming and group activities.' He also stated:
'He impresses me by his genuine insights into how deeply his prolonged absence from his children has impacted them and how to adjust his communication style for his children to feel listened to.'
47He also noted that during your time in prison, you had been made a peer educator in the program, stating: 'Mr Banks has afforded us with the following activities.' And I am just going to summarise them: contextualising learning contents to meet learners’ individual needs, helping prepare the training room, distributing materials, safeguarding materials when Mr Quasdorf is absent, encouraging and supporting other participants who were having difficulties with the program, role playing scenarios in front of program participants, debriefing after training sessions, and supporting participants by answering questions in between sessions.
48I am aware that a peer support position is one of significant trust within the prison environment and is rarely bestowed. In addition, you have worked as a billet throughout your time in custody, in particular you are a billet in the library. I know this is a position of particular trust, and it appears you have very much used this to your advantage as was referred to by Mr Simmons in that you have been reading a large number of self-help books.
49Importantly, I note that relations between your family and Ms Piper remain cordial. Your parents mind your sons after school on a regular basis, and your sons spend every second weekend with your parents. Even more importantly, it would appear that you understand that you have to resume appropriate and cordial relationships with Ms Piper in order to co-parent, and to that extent you have undertaken advice from Legal Aid whilst in the prison in order to properly and respectfully set up the appropriate legal parameters around your access to the children.
50You also wrote a letter to this court, although much of it was in fact addressed firstly to Ms Piper and to your family and friends as well as the court. It is always a tricky exercise, reading a letter written to the court by an accused person.
All too often, such letters are self-serving and indicative of a pattern of self-excusing by the writers, and an attempt to paint themselves in a particularly good light.
51Your letter, however, did not do that. Under the heading, 'To Louise', that is,
Ms Piper, you have been extremely apologetic. And it would probably be very helpful for Ms Piper, if possible, to see a copy of this. You describe yourself throughout as an 'idiot.' You said:
'I never wanted you to be fearful of me, and I am so sorry that I showed you no respect.'
52You apologised for damaging her property. You said:
'You would've had to pay it and live there with the boys till the walls got fixed. It would've been a horrible reminder for you and our kids to look at every day, especially waking up to that mess I left behind. Sorry.'
53I am going to depart from your letter for a moment here, because it is a good time to refer to Ms Piper's Victim Impact Statement. It is quite clear that you have caused her enormous distress. Although she said in her statement to police that she had never feared you physically or emotionally, what you did on that day has clearly shaken her to her core.
54She immediately felt she needed to leave her home where she had lived for some time, and where she said she and the boys were comfortable. She left in a panic. She left many of her possessions behind. She has had to take up residence at a house which is $45 a week more expensive, rental-wise. She has had to replace a number of the items she left behind. It was clearly financially - that is probably the least of her problems - extremely traumatic for her.
55But the emotional effect that you have had upon her is that she has lost her sense of safety in the world. She is always jumpy. She is always scared.
She describes herself as a social person who is now scared to go out because she is worried about what could happen to her. You have had a very traumatic effect upon her in the way that you behaved.
56If I can put it in pretty plain terms, sir, she may not have feared you in the past, but the violence you displayed on this day has entirely shaken her. She was subjected to you bursting into her house while she was in bed with her new partner. That in itself is traumatic. Then there was a terrible verbal and physical argument.
57You push her, you injure her, and then you go to the car and you come back with a cricket bat. And as you told police, perhaps almost too honestly, you did so with the intention of inflicting a great deal of physical damage upon her partner. This was a terrifying incident, and it has had long-lasting effects.
58Fortunately for you, she is able to appreciate that you are a good father, and that you are important to their sons. She has said:
'This crime against me has affected me in so many ways, and has added so much fear in me for what might happen, affect myself and our children in the future, regarding Stuart's behaviour if he does not seek help.'
59She then says:
'I keep thinking over if Stuart could come out of this doing courses for his issues, I feel this would be best and safest for the whole family. Our boys really miss having their father around, and I can see them struggling emotionally being away from him this long, and that is hard to see as a mother. I'd feel much safer and happier if he was out bettering himself, seeing our boys as he usually would, than in gaol, possibly building up anger towards me and re-offending when out. I want the safest outcome for us all.'
60I have to say, I found Ms Piper's Victim Impact Statement incredibly impressive. Particularly because what she talks about, and I mentioned this during the plea, is that she herself is suffering terrible trauma and anxiety but does not want to attend upon the psychologist in case that causes her defence mechanisms to break down, and therefore that your sons would see how very distressed she is.
61So she has effectively been denying herself appropriate psychological treatment which would make her feel better, because she is worried about how that might affect her parenting. You should be thoroughly ashamed of that and you should have a lot of admiration for this mother of your children.
62Ordinarily, and the authorities make this perfectly clear, people who engage in what is called 'intimate relationship aggravated burglary' can only expect a stern response from the courts. Actions such as yours, as a man who has been unable to accept that a relationship is over and his former partner has moved on, are far too prevalent in our community. There appears to be some sort of sense of entitlement amongst offenders like yourself to break into the home of their former partner with the thought in mind that they are going to inflict damage.
63Aggravated burglary is a really serious crime. The authorities that were presented to me in the course of the plea by the prosecution make it very clear that the fact that a person breaks in to their former partner's home with violence on their mind, if I can put it that way, is not made a less serious crime because they then do not proceed to carry out the assault.
64The very fact that you did what you did with what you had in mind invites extremely serious sentencing and the application of principles such as a general deterrence, which is the court sending out a message that people who behave as you have can only expect a serious response from the courts, and that this behaviour will not be tolerated, condemnation of your actions, punishment for your actions, usually dominate the sentencing exercise.
65It was the submission of the prosecution that the minimum that a court can impose if a combination disposition is handed down - that is, a disposition which consists of gaol and a Community Corrections Order - is not sufficient. Generally speaking, I can understand why the prosecution would make such a submission.
66As the prosecutor quite properly pointed out, not only did you break in to the house, once you were pushed out, you made things worse. You went and got a cricket bat and you went back in again. And further violence, albeit most of it verbal, ensued. Then there was a series of horrible text messages to
Ms Piper. Finally there was a family intervention order and you breach it by speaking to her and trying to find out where she is. This behaviour is simply not acceptable, sir.
67However, in your case, I am impressed by what I do regard as true remorse on your part. It was fairly evident, in any event, in my view, from the way in which you conducted the record of interview which was an entirely frank record of interview, and which did not seek to attribute blame to anyone but yourself.
68You have undertaken a serious program of reform whilst within the gaol, and I note that you also have undertaken a course run within the gaol in relation to intervention orders.
69I was impressed by your letter to this court, and I will return to that now.
You apologised to your family and your friends. You also noted the damage you had done to your children. You noted that they have 'suffered greatly.'
You said:
'We had such an amazing relationship which I know will take some time to heal.'
70You stated:
'I have missed my eldest son’s 12th birthday, and my youngest son's 8th birthday on the back of the stupid behaviour.'
71Again, an entirely accurate insight by you, sir. You said:
'I hope they can forgive their old man one day.'
72You then thank your family and friends for the support they have given you. I note that your family and friends came to court with a raft of references from family and friends attesting to your character as, generally, a kind man and a devoted father, albeit someone who has had a lot of growing up to do at a stage of life when that should have well and truly been behind you.
73You note the fact that your actions and the legal proceedings have dominated their lives for the past nine months. You stated:
'I know they worry about me but don't complain at all about the sacrifices they make on a daily basis. I want this to come to an end for all of them.
I am so sorry I did this to all of them, and I am truly blessed to have them in my life.'
74Unusually, you apologised to the police. You said:
'I have great respect for the police as they have a difficult job to do. I was drinking heavily and going through a rough patch in my life and did not care about the consequences coming my way. I wish I did not behave that way. I am truly sorry.'
75And finally, to the court, you say that you know that what you did was wrong and that you deserved to be punished. You stated:
'Over the past nine months, I have been consistently reminded of the impact a 10-minute situation can have.'
76Let me say, it was more than 10 minutes. Part of your offending is those horrible texts that you sent to Ms Piper and your attempt to contact her when you were not supposed to. You state:
'My actions have had a devastating impact on Louise, our kids and my family and friends.'
I am very glad that you note that.
77Overall, there are certain matters in this case which in my view distinguish it from the more serious cases that the courts have had to deal with. And please do not think in saying that, I am in any way saying that your behaviour was anything but serious.
78I accept defence counsel's submissions that you chose a time of day - that is, 9.30 in the morning - when you did not expect to see Ms Piper and her partner in bed, and that is to be contrasted with many cases where the aggressive person breaks in in the middle of the night.
79You were alone. You did not involve any co-offenders. All too often, the courts are confronted with a scenario with the aggrieved male drinking heavily with his mates and bringing them all in, and a crowd of people turning up to the house.
80It was submitted that the weapon that you chose was lower down the scale - in other words, that it was less than a knife or a firearm. It might have been.
I accept that, to a small degree, but a cricket bat can still do a great deal of damage.
81I think it is important to note that your partner has not experienced a regime of fear or dominating behaviour during her relationship with you. That is not to say that you sound as if you had been a particularly easy man to live with, but you have not stood over her, you have not sought to dominate her and you have not put her in fear. And I note what you said in your letter; that you are so sorry that she is now in fear of you. That is not something that is necessarily always encountered in cases of this kind.
82I accept the submission that you were able to be pushed out of the house.
You do have a good work history. You appear to be a good father. And, as I have said, you have undertaken appropriate courses in gaol aimed at understanding yourself, your behaviour, and rectifying it.
83You have not just turned up with the usual certificates from TAFE about, you know, Occupational Health and Safety, how to make a good coffee, how to clean equipment and so forth. You have, I am satisfied, seriously taken on board how wrongful and harmful your actions were on that day.
84I have had you assessed for suitability for a Community Corrections Order.
You have been found suitable and indeed you have been assessed as being as a low risk of re-offending. I note that it was stated that:
'When asked about the offending, Mr Banks was able to demonstrate both insight and remorse with regards to his offending, acknowledging that he did the wrong thing and discussed in depth how his behaviour and actions have impacted his ex-partner, and particularly his family and children.'
85Again, it is rare for an offender like you to demonstrate the sort of empathy that you have towards your ex-partner, and that is very, very important.
They described your time in custody as being
'beneficial for his own rehabilitation, and self-reflection, in particular, to his offending.'
86You were assessed as being a low risk of re-offending according to the level of service risk assessment tool.
87For all those reasons, and I will just list the most prominent ones again: firstly, your evident remorse, second, your insight not just into your own behaviour but to the effect you had upon your partner as well as your children, thirdly, strong, protective factors you have in your family, fourthly, that there is an ongoing amicable relationship between your family and your sons with continued involvement by your parents in their lives at a high level, fifthly, your previous good history, not so much in terms of previous offending which is old, but in terms of you maintaining employment and supporting your family.
88In all those circumstances, I do not find you to be a risk to the community, which is so often the case, 'the community' usually being the former partner.
89I do regard this as highly immature, violent and frightening but out of character behaviour, and it was essentially an appallingly violent and immature response by you to the ending of your relationship in circumstances where you were not at the same stage of events as she was.
90I am satisfied your time in gaol has been both salutary and useful for you.
91In all the circumstances, I intend you to sentence you a term of imprisonment but I am going to order that you be released on a Community Corrections Order. All right?
92Now, I have got a bit of a problem, because the first charge is a Commonwealth charge.
93MR SPAGUE: Yes, Your Honour.
94MS HUGHES: Your Honour, in relation to that matter, I should have said this earlier, it in fact is my submission that taking into account his lack of priors for anything of that nature, it would in fact be open to Your Honour to deal with that matter by way of a fine. If it was a standalone charge, it certainly would be the type ‑ ‑ ‑
95HER HONOUR: The thought of a fine had crossed my mind. I will give him plenty of time to pay if it is going to be a big fine.
96MS HUGHES: Yes, as Your Honour pleases.
97HER HONOUR: What do you want to say?
98MR SPAGUE: I don't have specific instructions in relation to that sentence.
99HER HONOUR: It would not sit with your instructions. I accept that.
100MR SPAGUE: It forms part of the overall course of conduct of the offending to which the prosecution submission relates.
101HER HONOUR: It does.
102MR SPAGUE: If Your Honour was to impose a term of imprisonment as a matter of practicality, if that sentence on that charge was to commence today and then the sentence on whatever other head charge commences today, then that would simply be concurrent. But that is as a matter of practice. It is a matter, of course, for Your Honour as to how that should be structured.
103HER HONOUR: Yes. What I propose to do, and you know, even so, it is highly prevalent and it is not going to be a bit - I do think a term of imprisonment is appropriate. It was nasty. It is part of the overall offending. But I what I want to do, because the aim is - you are not getting out today, I can tell you that, sir. You have not done quite enough time. I am going to make you serve the maximum before you can be released. That may be a bit of a disappointment to you, but - how many ‑ ‑ ‑
104MS HUGHES: Two hundred and fifty-four days, so almost nine months.
105HER HONOUR: Almost nine months, yes. The overall impact I want him to have is, you can do 11 months and three weeks. So you will have almost three more months to go. All right, sir?
106OFFENDER: Yes, Your Honour.
107HER HONOUR: All right. Let me just get the indictment. Can you stand up, please, sir? I have failed to note - just excuse me. I also need to note - you can have a seat again, sir. Sorry.
108I should note the maximum penalty for using a carriage service to harass is three years and/or 180 penalty units. The maximum penalty for criminal damage is 10 years. The maximum penalty for aggravated burglary is 25 years. The maximum penalty for recklessly causing injury is five years. The maximum penalty for common assault is five years. The maximum penalty for entering a private place without authority or excuse is six months' imprisonment or
25 penalty units. The maximum penalty for contravening a family violence intervention order is two years and/or 240 penalty units.
109All right. So in relation to Charge 1, you are sentenced to one month's imprisonment. That sentence will begin today.
110In relation to Charge 2, you are sentenced to three months' imprisonment.
111In relation to Charge 3, you are sentenced to 10 months' imprisonment.
112In relation to Charge 4, you are sentenced to two month's imprisonment.
113In relation to Charge 5, you are sentenced to one month's imprisonment.
114On the summary charge of contravening a family violence order, you are sentenced to one month's imprisonment.
115In relation to each of the two summary charges of entering a private property without express or implied authority, you are sentenced to one month's imprisonment.
116The base sentence will be the sentence imposed in relation to Charge 3.
That sentence is 10 months' imprisonment, and you will also, in relation to that, be placed on a community corrections order for a period of three years. However, there will be cumulation. I am going to order that - how much did
I give for the criminal damage?
117MS HUGHES: Charge 2 was three months.
118MR SPAGUE: Yes, Your Honour.
119HER HONOUR: Charge 2? How much?
120MS HUGHES: Three.
121HER HONOUR: Three months. I order that six weeks of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 4 be served cumulatively to the sentence imposed - hang on, that is going too much, is it not? So one month - so six weeks. No, that is all right.
122So six weeks on Charge 2, four weeks on Charge 4. That gives an extra 10 weeks to be served cumulatively to the sentence imposed on Charge 3.
That should give a total effective sentence of ‑ ‑ ‑
123MS HUGHES: I think that is two weeks out, Your Honour.
124HER HONOUR: Am I?
125MS HUGHES: I think it is two weeks too long. If it is 10 weeks, that is two-and-a-half months on top of 10 months is ‑ ‑ ‑
126HER HONOUR: I thought you said nine months.
127MS HUGHES: Nine months on Charge 3. No, sorry, 10 months on Charge 3.
128HER HONOUR: No, no, I thought - that is on top of 10 months?
129MS HUGHES: Yes.
130HER HONOUR: Yes, you are right. All right. I will order that one month on Charge 2 and two weeks on Charge 4 be served cumulatively to the sentence imposed on Charge 3 and to each other, giving a total effective sentence of
11 months and two weeks.
131I need to explain to you the conditions on the Community Corrections Order, sir. Can you stand up?
132OFFENDER: Yes, Your Honour.
133HER HONOUR: You must report to the community corrections office within two working days of being released from gaol. Whilst on the order, which will last for three years, you must not commit another offence punishable by imprisonment. That does not mean you have to be gaoled. That means if you do anything for which you could be gaoled, like stealing a box of matches from Woolworths, that would breach the order and you will be brought before me and I will resentence you on this. Do you understand?
134OFFENDER: Yes, Your Honour.
135HER HONOUR: If you do not abide by all these conditions, you will come back in front of me on a breach and I will re-sentence you. You must report any change of address or employment to the community corrections office within 48 hours of making that change.
136You must report to and receive visits from the community corrections office. You must obey all lawful directions of the community corrections office.
You may not leave Victoria without the permission of the community corrections office, and you must not attend upon the community corrections office under the influence of drugs or alcohol.
137I am going to order that you undertake 250 hours of unpaid community work. You are also to undertake programs designed to reduce reoffending, such as parenting programs, Men's Behaviour Change programs, like that. Those are the conditions. Are you prepared to undertake this order?
138OFFENDER: Yes, Your Honour.
139HER HONOUR: Have a seat. We will prepare the documentation.
140MS HUGHES: I might just confirm that the 254 days has been reckoned as pre-sentence detention.
141HER HONOUR: Sorry. I declare that 254 days of this sentence have already been served by way of pre-sentence detention. Thank you.
142MS HUGHES: Thank you, Your Honour.
143HER HONOUR: All right. Yes?
144MR SPAGUE: The only other matters, Your Honour, are the ancillary orders.
145HER HONOUR: Yes. I will grant those orders and I have to make an order pursuant to s.6AAA.
146MR SPAGUE: Yes, Your Honour.
147HER HONOUR: I declare that had you not pleaded guilty, I would have sentenced to you a term of imprisonment of three years and ordered that you serve a minimum term of two years.
148I also reserve the right to edit the appalling grammar that inevitably accompanies my ex-tempore sentences. Thank you.
149I should also add that in addition to the mitigatory matters that I have referred to, it is my view that the long-term benefits to the community - and by 'the community', I mean in particular your former partner and your children - are best served by the imposition of this combined disposition rather than a term of imprisonment involving a maximum and minimum term. Thank you.
150All right. That is fine. We will get you to sign that. Thank you very much.
151Hopefully the court will never see you again, but I am satisfied that you have learned your lesson. Make sure it stays learnt.
152OFFENDER: Thank you.
153HER HONOUR: Thank you very much.
154OFFENDER: Thank you, Your Honour.
155HER HONOUR: I thank counsel very much for their assistance in this matter.
156OFFENDER: See you guys. Thanks for coming. See you guys later.
157VOICE (from body of court): See you soon.
158HER HONOUR: We will adjourn to 9.30 tomorrow morning. Thank you.
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