Director of Public Prosecutions v Baston

[2015] VCC 1622

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

AT HORSHAM
CRIMINAL JURISDICTION

CR-15-01496

DIRECTOR OF PUBLIC PROSECUTIONS

V

JOSHUA BATSON

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	2 November 2015
DATE OF SENTENCE:	13 November 2015
CASE MAY BE CITED AS:	DPP v Baston
MEDIUM NEUTRAL CITATION:	[2015] VCC 1622

REASONS FOR SENTENCE
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Subject:Aggravated burglary – recklessly causing injury – criminal damage – breach of Family Violence Intervention Order (x2) – unlawful assault.

Sentence:24 month Community Corrections Order – 150 hours community work – drug assessment and treatment – alcohol assessment and treatment – supervision – mental health assessment and treatment – offending behaviour programs

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	Office of Public Prosecutions
For the Offender	Mr R. De Vietri	Victoria Legal Aid

HIS HONOUR:

1Joshua Baston, you have pleaded guilty to one count of aggravated burglary, one count of recklessly causing injury, one count of criminal damage, two summary counts of breaches of a Family Violence Intervention Order and one further charge of unlawful assault.  The complainant in this matter was your ex-partner.  The maximum penalties for the offences are set out in the Crown opening, Exhibit A, which I incorporate by reference. 

2The circumstances of the offending were set out in the Crown opening which as read in open Court on the plea.  In brief summary you were in a relationship with the complainant.  She was living separately from you with her three year old son at an address in Nhill.  You were living at another address in Nhill.  On 27 January 2015 she obtained a Family Violence Intervention Order against you with conditions that you not commit family violence against her or intentionally damage her property and other conditions.

3On 27 March 2015 you had stayed overnight by consent at her address and at approximately two o'clock that afternoon she was in the laundry repairing her washing machine when you came up behind and started arguing with her over the relationship.  She asked you to leave but you refused.  She then went into the bedroom, you followed her threatening to assault her and she continued asking you to leave.  You started arguing with her and you grabbed her upper arms, pushed her onto the bed and there was a struggle.  She again asked you to leave and at that point you refused to leave and punched the television set with your right fist damaging it.  You also pushed her around the room and slapped her with an open palm.  She slapped you and you then pushed her up against the wall and threw a punch, missing her but hitting the wall.

4While this was happening her three year old was in the lounge room watching television and she screamed at you to get out of the house several times and eventually you left.  She did not report this incident.  Those incidents constitute Charge 1, criminal damage and the summary charges of unlawful assault and the contravention of the Family Violence Order. 

5You went back to an address in Nhill that you were staying at and there were text messages exchanged between the two of you and then at about 5.30 you re-attended at the premises, knocking at the doorbell a number of times.  She refused to let you into the house.  You then went to the lounge room window, pulled off the fly screen and then entered the lounge room.  She recorded all that on her mobile phone.  You snatched the mobile phone from her and deleted the recording. 

6There was another further scuffle between the two of you, you grabbed her upper arms causing her pain, pinched the back of her arms as she tried to get away.  Her three year old son, again, was there at the time while this was unfolding and she screamed at you to leave the house.  You hit her on both sides of the head with open palms causing pain to her ears and head.  You grabbed her, putting your hand across her mouth and nose making it hard for her to breathe.  She fought you off and she was panicking as she grabbed her son.  You also grabbed the child.  There was a screaming match.  The complainant suffered redness, bruising and swelling to her upper arms and those events constitute the aggravated burglary, further breach of the intervention order and recklessly causing injury.

7Police attended at the address that day and spoke to you.  You had an injury to your right hand as a result of punching the television and you were conveyed to the Wimmera based hospital to be looked at.  You attended the police station on 31 March and made a record of interview where you made full admissions as to the events.

SERIOUSNESS OF THE OFFENCES

8Your counsel did not dispute the seriousness of the offending here.  He accepted that you were the subject of a Family Violence Intervention Order at the time when you committed the offences, in particular the offence of aggravated burglary.  You had been requested to leave the premises by the complainant that afternoon and you refused and proceeded to assault her and damage the television and the wall of the property.  You then left and after an exchange of texts, a couple of hours later you returned to the premises.  At that point you were refused entry and notwithstanding that refusal you proceed to enter the premises thorough the window. 

9Your counsel emphasised that at the time you were not carrying any weapon and that looking at the events that afternoon your presence at the house had moved from being consensual earlier to being unlawful over that period.

10I am prepared to accept that there is very little premeditation to the offence of aggravated burglary.  Against this the complainant had made it perfectly clear to you that you were no longer welcome and she wished to end the relationship.  By your plea you have admitted that upon entering the premises you intended to assault the complainant. 

11In your record of interview you maintained that you had sent a message to her saying you were sorry for the earlier event that afternoon.  As the interview has a ring of truth about it, I accept that.  It was then that you returned to the house and you said in the record of interview that you wanted her to explain to you directly why she no longer wanted the relationship to occur but when she refused entry you proceed to effect the entry through the window.

12The Crown submitted, and I accept, that this was a serious example of the offence of aggravated burglary.  You had been at the premises earlier and assaulted the complainant and damaged the property both in breach of the intervention order.  You then returned to the property notwithstanding you had been denied entry, proceed to enter the property and assault her, again in breach of the intervention order.  In relation to the common assault and recklessly causing injury counts the Crown accept that they were at the lower end of the scale. 

13

No victim impact statement has been filed.  The offending must have been a shock to the complainant as well as to her young child.  From the report of

Mr Leardi, it was after these events the relationship continued but ceased about a month ago.

PERSONAL CIRCUMSTANCES

14Your personal circumstances are set out in the report from Mr Leardi, clinical psychologist, and those circumstances I incorporate by reference.  You are currently aged 23 and a half and were born in Nhill.  You have an older sister, a younger sister and two younger stepbrothers.  Your parents separated when you were approximately five years old and re-partnered.  Your father apparently committed family violence against your mother whilst she was pregnant and you describe yourself as the black sheep of the family.

15You frequently got into trouble with your behaviours in your younger years.  You got on well with your stepfather however when you were 16 your mother relinquished care of you and you went back to live with your father.  He took you off your ADHD medication.  At that stage you were fighting with your paternal grandfather who was where your father was living.

16You then moved back to your mother's care to finish Year 11.  Notwithstanding a number of suspensions you managed to complete Year 11.  You then left school and had been in a number of manual occupations since that time although you have also had periods of unemployment. 

17From around aged 18 you had a two year relationship with a woman who was seven years older than you and who had two children.  You moved to Broken Hill and you and her have a three year old child.  That relationship has now ceased and you are not in contact with her or with your child.  There was a physical incident between you and your ex-partner in the course of that relationship.

MATTERS IN MITIGATION

18On your plea your counsel relied on a deal of evidence to support a disposition that emphasised your rehabilitation.  Shortly after committing the offences you proceeded to join the Men's Behavioural Change Program conducted by Grampians Community Health and you have been involved with that organisation for 16 sessions since that time.  

19The coordinator, Mrs Vicki Hobbes, attended to give evidence.  She has been involved in the program for some ten years and made an exception to come to Court to support you.  She indicates that you have been a positive participation, appeared remorseful and stood out among those involved as somewhat of being a mentor to other younger entrants into the program.  She notes that you struggle with paperwork and she was of the view that on her assessment you had a 70 to 80 per cent chance of being successful in not returning to family violence.  I was impressed by her evidence notwithstanding that she was not a qualified clinician.

20Also in evidence was a report from a counsellor, Mr Tim O'Donnell, dated 16 August 2015 who indicated that you had been referred to him and over the period 29 May to 14 August you had been involved in six sessions of CBT.  He notes "Josh has certainly shown some great progress in his journey towards better health".  He has agreed to continue with counselling into the future.  He indicates that your depression, anxiety and stress levels have reduced over the period.

21Also in evidence on the plea was a letter from a friend of your mother who operates a hotel in a nearby town, indicating that you had been volunteering at that hotel.  She has known you for a period of some eight years.  Since you have been assisting at the hotel she has indicated that she seen positive changes and she will continue to support you.  In essence the contents of the undated letter was to the similar effect as the evidence of Mrs Hobbes.

IS THERE A MENTAL STATE REDUCTION IN MORAL CULPABILITY?

22Your counsel submitted that the Verdins considerations applied to reduce to moral culpability as you were of borderline intellectual functioning.  The learned Crown prosecutor disputed that the evidence would support his analysis.  Before me was a psychological report undertaken shortly before you turned 12 indicating that you were of low-average ability with an IQ, at that stage, indicating low intellectual functioning.

23A later report when you were aged 14 indicates that you seem to have problems indicating an intellectual disability with an IQ of 73.  The paediatrician indicates that you,

"had the hormones of a 14 year old.  He has the thinking ability of an average nine or ten year old and this is not always a good combination in terms of impulse control".

24He went onto say,

"He has generalised learning problems with oppositional defiant traits and there is no question he has attention deficit disorder".

25He recommended a change in medication.  From this report it appears at least, as at age 14, you were somewhat behind in functioning. 

26In a report from a psychiatrist, Dr Robert Proctor, he states that you have been referred to him by your local GP on 19 December 2014 where the GP states that you have not "been coping well.  Has been hyperactive, fidgety and in particular has been unable to control his temper". 

27

The psychiatrist did not see you until 12 March this year and he then recommenced you on medication for ADHD.  In your record of interview on

31 March you indicated that at the time of this offending you had been taking that medication and indicated to the police that you did not feel it was assisting and was, in fact, making your condition worse.

28When you saw the psychiatrist on 1 April 2015 he changed your medication to a mood stabilizer.  In his report he indicates that when he reviewed you in May, that medication change, "has had a major beneficial effect on his mood and ability to control his anger".  He was of the opinion that you if you continue to take the medication and complete the anger management course "It will certainly greatly benefit him both in the short and long term".

29Also in evidence was the report from Mr Robert Leardi.  In that report he found on analysis that you evidenced some prominence in anti-social personality pathology.  He also found prominence in alcohol dependence and drug dependence pathology and that your level of alcohol consumption placed you at a high risk of developing alcohol use issues.  He noted that you were experiencing minimal depression and anxiety.

30Having noted intra-family difficulties within your childhood he opines that this may contribute to behavioural difficulties into adulthood.  He also found that it is common for people to internalise childhood experiences which in turn affects their behaviour throughout the course of their life and it was possible this process may explain some past violent conduct on your part.  He also noted prior difficulties with your mother and older sister predisposed you to the onset of antisocial personality traits. 

31He then considered that your difficulties regulating your anger and negative emotions may be a maladaptive coping mechanism for interpersonal triggers.  Consumption of alcohol during brain development would be expected to cause reduction in your capacity to forward plan and to make rational decisions.  He also noted the influence of anti-social peers including your partner who you left in Broken Hill.  He found that you probably meet the criteria for alcohol abuse disorder.

32Notwithstanding these factors he found there were protective factors operating including your good health, some good work experience and the fact that you had taken responsibility for your actions and that you could positively participate in individual therapy.  He also noted you have the support of your mother and stepfather.

33He noted your age and indicated you still have some capacity to overcome your presenting difficulties.  Your prognosis is positive if you are able to address your alcohol and other substance abuse issues and you continue to engage in long term treatment for antisocial personality traits according to this clinician.

34He recommended that you be provided with individual behavioural therapy.  He also indicated that you required some form of dedicated drug and alcohol treatment and assessment.  He suggested a comprehensive neuro-psychological assessment.  He also suggested referral to a psychiatrist and you should continue the Men's Behavioural Change Program.  He suggested that you require vocational counselling and support.

ASSESSMENT

35Early in his report Mr Leardi assessed you as having low risk of re-offending.  This was contested by the prosecution.  The assessment is a probabilistic assessment and having regard to the later parts of his report I would regard your prospects of rehabilitation as reasonable.  There is a long way to go given the personality and psychological function deficits identified and the need for drug and alcohol counselling.

SUBMISSIONS ON PLEA

36On the plea there was much common ground.  It was accepted that you had pleaded guilty and the plea was an early plea.  It was accepted that you had no adult prior convictions.  It was accepted that you had made full admissions and cooperated with the police.  It was also accepted that you had expressed remorse.  It was not disputed that you had insight into your offending.

37The prosecution did dispute that considerations in Mills remained relevant at least to some extent given your age.  I have discussed your prospects of rehabilitation.  The prosecution disputed that you were of borderline intellectual functioning in order to reduce your moral culpability.  As the prosecution submitted there is no current IQ test.  Mr Leardi indicated that your intellectual functioning was within the borderline to low average ranges.  Your record of interview indicates that you responded positively to the questioning by the police which did not indicate any intellectual deficit as such. 

38Mrs Hobbes, who has had the opportunity to observe you over an extended period in the Men's Behavioural Change Program indicates that you do have some difficulty in comprehension and when you had this difficulty you asked for matters to be repeated.  She indicates that you struggle with paperwork. 

39All those matters would indicate that I am unable to find that you have borderline intellectual functioning but your functioning is probably low-average and I cannot find on the material you have an intellectual disability.

SENTENCING CONSIDERATIONS

40The prosecution submission was that the seriousness of the offending called for a term of imprisonment to be immediately served followed by a Community Corrections Order.  Defence counsel submitted that all the ends of sentencing could be achieved by a Community Corrections Order. 

41The learned Crown prosecutor referred me to the recent decision of Boulton and in particular that the first requirement is that the offending is not of such seriousness that a sentence of imprisonment must be immediately imposed.  In other words the principle of parsimony requires that the purposes for which a sentence to be imposed must be identified and the question to be asked is whether those purposes can be achieved by a CCO. 

42The learned prosecutor submitted that the Court of Appeal had said on a number of occasions that in cases involving domestic violence considerations of general deterrence must be prominent.  Further the Court of Appeal in a number of cases such as Hogarth had emphasised the serious of the offence of aggravated burglary and, indeed, that current sentencing practices were inadequate.

43It was submitted that this was a serious example of aggravated burglary and did involve domestic violence and a breach of a Family Violence Intervention Order, and that a sentence of imprisonment to be immediately served was called for. 

CONSIDERATION

44The abolition of suspended sentences and the introduction of CCO's has altered the sentencing landscape.  At the same time the first question must be whether having regard to the circumstances of the offending, your personal circumstances and the current sentencing practices, whether a sentence that does not impose immediate imprisonment is within range.

45Sentencing snapshot no.155 for aggravated burglary covers the period 2009 to 2013 and shows that a significant minority of cases involved offending with under 25 year olds were dealt with by way of suspended sentences. Under s.36(2) of the Sentencing Act offences for which a suspended sentence was imposed may be ones were Community Corrections Orders may be appropriate.

46In this case the prosecution accepted that you were effectively to be dealt with as a first offender and that you had shown insight and remorse and given your age were regarded as a relatively young offender.  At the same time the prosecution, as I said, submitted that general deterrence and specific deterrence called for a sentence of immediate imprisonment.

PURPOSES OF SENTENCING

47The basic purpose for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated, and re-integrated into society.

48From the report of Dr Proctor I am satisfied that at the time of this offending you were not being properly medicated for your anger management problems that had led you to be referred to Dr Proctor some months earlier.  Subsequent to that offending he changed your medication and as I have noted since that time you are progressing well.

49From the report of Mr Leardi, it is clear that your anger management difficulties are longstanding and your personality problems were such that you were under medication for ADHD until the age of 16.

50Your age at the time of the offending, your lack of prior convictions are such that while considerations of general deterrence in the case of domestic violence matters, and the matters that I have mentioned, I am satisfied, lead to some moderation of both general deterrence and specific deterrence.

51

The progress that you have made since this offending by way of participation in the Men's Behavioural Change Program, attendance at counselling with

Mr O'Donnell and the medication regime of Dr Proctor are all such that the community interest would be best served by a disposition that does not impede this progress where the various programs suggested, particularly by Dr Proctor, can be facilitated.

52I have had you assessed for a Community Corrections Order.  The assessment is favourable and also indicates that the assessor regarded you as being of a low risk of re-offending.  The assessment does, however, identity that you would benefit from alcohol and drug treatment programs as well as offender behaviour programs and continuation of your mental health program.

53Having carefully considered the competing submissions made in the guideline judgment in Boulton, I am satisfied that the need to both punish you and to rehabilitate you can be best served by a Community Corrections Order that has attached to it conditions which will coercively require you to continue with the programs and actions that you have undertaken since this offending.

54I see a Community Corrections Order as a significantly onerous sentence in this case given that you will be required to continue with offender behaviour programs as well as drug and alcohol rehabilitation. 

55Your somewhat entrenched personality programs are such that this will be a difficult road for you.  The community will be much better served by your successful completion of such programs rather than sending you to the criminogenic atmosphere of an adult prison.

56You will also be punished by a community work condition.

57I can assure that you in the event that you do not comply with the conditions of a Community Corrections Order that I will impose that you face a significant risk of being sentenced to a substantial term of imprisonment.  This includes further breaches of any intervention order that may be applicable to you or committing further offending for the next two years. 

58I am proposing to put you on a Community Corrections Order for two years.  It will be a condition that you undertake 150 hours community work.  It will also be a condition of the order that you undertake drug and alcohol treatment as directed by the Office of Corrections; that you be under their supervision for a period of 24 months; that you also undertake mental health assessment and treatment as directed by them and that you participate in programs to reduce your offending as directed by the regional manager.

59It is also, as I have indicated a term of a Community Corrections Order that you not commit an offence during that period and if you commit an offence that is a breach of the Community Corrections Order.  It is an offence itself and you will then be dealt with for the actual offence you commit.

60So, counsel, I will hand you down this proposed Community Corrections Order and you can discuss it with Ms Moran and then I would ask you to explain it to your client in enough detail so that he understands it, get him to sign it and then I will resume on the Bench, all right?

61MR DE VIETRI:  As the court pleases.

62HIS HONOUR:  I have also, Mr Baston, making a forensic sample order against you.  That means you have got to provide a mouth swab for the police and they can undertake reasonable force to get it from you and I have made a compensation order for $100 for the damage to the house.  I will stand down ‑ ‑ ‑ 

63You are excused for the moment while you explain the Community Corrections Order to your client and I will deal with this matter, mention this matter and see we're going further with the appeal.

64(Short adjournment.)

65HIS HONOUR:  Mr Baston, you have signed this document and your counsel has explained it to you.  As I indicated to you, I am giving you the opportunity and basically because of the actions you have taken since then, I am emphasising your rehabilitation against the matters that the prosecution have said that you should be locked up because you are not entitled to burst into ex-girlfriend's homes and bash them.  Particularly when there's intervention orders against you.  You understand that?

66Now that means I am giving you two years where you have got to do 150 hours community work.  You have got to turn up at the office, you can go there this afternoon, to check in with two business days.  That is by next Tuesday.  You are under their supervision.  So if they ring you up and tell you you have got to turn up and meet the officer at a particular time, if you do not turn up, that breaches the order.  Do you understand?

67OFFENDER:  Yes.

68HIS HONOUR:  You have also got to tell them of your change of address, everything like that, for the next two years.  You are to undergo any drug treatment and assessment that they direct you to and alcohol treatment and assessment and also any psychological or neuro-psychological or mental health treatment that they refer you to and they will be monitoring the way you managed your medication with Dr Proctor, the psychiatrist, and if they say you should continue at the Men's Behaviour Change program you have got to do that too.  Do you understand all that?

69OFFENDER:  Yes, Your Honour.

70HIS HONOUR:  So for the next two years you are under the thumb of the Office of Corrections.  If you breach that, if you do not comply with their orders or, you are probably still under a Family Violence Intervention Order, if you breach that again in the next two years or if you commit an offence carrying a term of imprisonment, like driving whilst disqualified or not driving at all or serious driving offences or theft or whatever, that breaches this Community Corrections Order and also is an offence itself.  You will come back and be sentenced on all these offences.  Do you understand all that?

71OFFENDER:  Yes, Your Honour.

72HIS HONOUR:  So it is not all over as far as you are concerned.  All right I have signed those.  You will be given a copy of them and you will - after you have signed them, you are free to go.  I thank counsel for their assistance on this plea.

73MR DE VIETRI:  Thank you, Your Honour.

74HIS HONOUR:  You are excused.

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