Director of Public Prosecutions v Bateman (a pseudonym)

[2022] VCC 748

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN BATEMAN (A PSEUDONYM)

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2022
DATE OF SENTENCE:	20 May 2022
CASE MAY BE CITED AS:	DPP v Bateman (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 748

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — common assault — intentionally cause injury — reckless conduct endangering person — contravention of family violence order intending to cause harm or fear for safety — cultivation of narcotic plant — cannabis L — committing an indictable offence whilst on bail — plea of guilty — record of interview — victim impact statement — family violence — vulnerable victim — intellectual disability — autism spectrum disorder — violent childhood — deprived childhood — drug use — cannabis — methylamphetamine — GHB — COVID-19 — remorse — prospects of rehabilitation — first time in custody — imprisonment — fine

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of three years with non-parole period of two years

Section 6AAA declaration: total effective sentence of five years with a non-parole period of three years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N Burnett (for plea) Mr A Lew (for sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr G Cooper	Victoria Legal Aid

HER HONOUR:

1Dean Bateman,[1] you pleaded guilty to the following charges: common assault, intentionally causing injury, reckless conduct endangering person, contravention of a family violence order intending to cause harm or fear for safety, cultivation of a narcotic plant and the related summary offence of committing an indictable offence whilst on bail.

[1] A pseudonym.

2The maximum penalties for the offences are as follows: five years for common assault, 10 years for intentionally cause injury, five years for reckless conduct endangering person, five years for contravention of intervention order, 12 months for the cultivation of a narcotic plant and three months for committing an indictable offence whilst on bail.

3The victim in this matter is Ada Young.[2] Ms Young has been diagnosed with a mild intellectual disability and autism spectrum disorder. Ms Young was your partner, having been in a relationship with you for around six to seven months at the time of your offending. She was 23 years old. Ms Young was living at a unit in Broadmeadows. You moved in with her around the beginning of December 2020.

[2] A pseudonym.

4On 14 December 2020, you and Ms Young had an argument after she asked you for a cigarette. You hit her on the head before strangling her for around 5–10 seconds. Ms Young grabbed a mattress to protect herself but you pulled it away from her and punched her in the nose multiple times. That is charge 1, common assault.

5Ms Young called the police. She was taken to the Northern Hospital for assessment and treatment. She suffered minor injuries to her face. She declined to make a formal police statement. As a result of the above incident, an interim family violence order was granted on 21 December 2020, which included conditions prohibiting you from committing family violence against Ms Young.

6On 29 December 2021, you were released on bail in relation to an unrelated matter.

7On 7 February 2021 at around 5:30am, Ms Young contacted you and asked you to come to her unit. You responded by sending her a threatening message which stated, ‘I’m with Davo,[3] you dog, I’m going to smash you’. You returned to the address and entered by a bedroom window. You then jumped onto Ms Young’s chest while she was lying in bed. As a result, she had difficulties in breathing. Ms Young attempted to leave the bedroom but you stopped her from doing so. You punched and kicked her to the back of the neck. Ms Young managed to escape from the bedroom and reported the incident to other residents. Ms Young then returned to the bedroom and attempted to hold the door shut. You overpowered her and re-entered the bedroom. You then strangled her against the bedroom wall using both hands. She stated that she could not breathe. That is the basis of charge 3, which is reckless conduct endangering a person.

[3] A pseudonym.

8Ms Young used her foot to kick you away. You then punched her to the jaw and you continued to punch and kick her as she attempted to escape from the bedroom. At this stage, a fellow resident stated that she was calling the police. You stated, ‘Don’t call the police’ and Ms Young said, ‘I’ve told you to stop hitting me’. You and Ms Young were near a bedroom window. You grabbed Ms Young by the head and smashed her head into the window. This act caused the window to break. Ms Young says she was seeing stars. That is the basis of charge 2, which is intentionally cause injury.

9The offences committed by you on 7 February 2021 contravened conditions of a family violence order previously served on you. That is charge 4. The offences committed by you on 7 February 2021 occurred while you were subject to an undertaking of bail. That is the basis of the summary charge.

10Police arrived at the premises. An ambulance was called. You attempted to flee but were arrested nearby by several police members. While waiting for the ambulance to arrive, Ms Young suffered a seizure. It is not alleged that this was the result of your offending or that it aggravates your offending. She was transported to the Northern Hospital where she remained for six days.

11Ms Young was examined by Dr Phillipa Cook, a senior forensic medical registrar, on 11 February 2021. As a result of your offending on 7 February, she suffered multiple bruises and abrasions to her head, neck, chest, abdomen, back, buttocks and both arms. Ms Young was later assessed by Dr Fred Low in May 2021, where it was noted that she continued to suffer headaches from the assault.

12On 9 February 2021, investigating police executed a search warrant at your mother’s house. At this address, police located a large cannabis plant growing in the backyard. You had cultivated this plant. That is the basis of charge 5.

13On 7 February 2021, you participated in a record of interview. You said you had little recollection of the incident of 7 February but did remember having an argument with Ms Young. You said you had anger issues and would often blank out when you were angry. You stated that you had used ice at the time and had not slept for several days. You denied assaulting Ms Young.

14Ms Young and her mother, Fearne Young,[4] have made victim impact statements. Ms Young says your offending against her has left her confused and vulnerable. She has lost her independence and has had to move back in with her mother because she fears being alone and needs support. She says your offending has made her feel worthless and she suffers memory loss, depression, anxiety and post-traumatic stress disorder.

[4] A pseudonym.

15Fearne Young says her daughter has become totally reliant upon her and this causes her immense sadness for her daughter. It has also significantly curtailed Mrs Young’s own life. She says Ada is now unable to do the things that she previously had no difficulty doing and has lost her independence. Mrs Young says she has got to make caring for Ada her priority and, as she describes it, she has had to put her own life on hold. Your offending has also caused Ada and her mother considerable ongoing fear and Ms Young says she has had to install security equipment at her home.

16This is objectively serious offending which has had a profound impact on the lives of Ms Young and her mother. The Court of Appeal has on numerous occasions decried the shocking prevalence of crimes of violence against women committed by their male partners.[5] Your victim was particularly vulnerable because of her intellectual disability. Your treatment of her was shocking. You treated her contemptuously and inflicted serious violence upon her. Indeed, it is fortunate that given the viciousness of your assaults upon Ms Young, you did not cause her more serious injury. The second incident occurred when you were on bail and in breach of a family violence order in place to protect her against you.

[5] See, eg, Smith v The Queen [2020] VSCA 159.

17Before I turn to the question of your moral culpability, it is necessary for me to consider your background and your personal circumstances, as you relied upon your experience of a violent childhood and formative years as enlivening Bugmy principles and therefore bearing upon my assessment of your moral culpability.[6]

[6] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

18Turning now to your personal circumstances, in outlining your personal circumstances I draw on the report of Jeffrey Cummins, which was tendered on your behalf, and to the submissions of your counsel.

19You were born in 1996 and are presently 25 years old. You were born and grew up in Broadmeadows. You are one of a siblingship of five. You have always had a good relationship with your mother, who continues to support you and who wrote a reference tendered at your plea. Your father was a heavy drinker and drug user and was abusive to your mother and to you and your siblings. Even when he and your mother separated and you remained living with your mother, he would abuse you and your siblings on access visits. Your father has a criminal history and has spent time in gaol.

20The Department of Human Services was involved with your family when you were growing up. You attended primary school and then secondary college, where you completed year 8 but failed year 9. You struggled with literacy and numeracy and also had behavioural difficulties, no doubt related to your home environment.

21It was submitted on your behalf that Bugmy principles were engaged in the general sense in sentencing you,[7] that is, given your background with its attendant violence and abuse and your lack of educational opportunities and your consequent diminished prospects, your moral culpability should be moderated. I accept this submission and moderate my assessment of your moral culpability accordingly.

[7] Ibid.

22You began using drugs at around 16. You left home at around this time. Your drug use quickly escalated and you report using cannabis, methylamphetamine and GHB heavily at various times. You report that your drug use peaked at the time you committed these offences.

23You have been abstinent during your time in custody and drug screen certificates to this effect were tendered at your plea.

24You have had a sporadic work history. You hope to work as a traffic controller upon your release from custody.

25Prior to your relationship with Ms Young, you had one long-term relationship and you have a daughter from this relationship, who is now aged six. You have had regular telephone contact with your daughter from prison.

26You suffer from Perthes disease, which is a disorder of the hip joint which causes you to limp. It was not submitted that this causes you any additional hardship in custody, nor was it submitted that any Verdins considerations are enlivened in sentencing you.[8]

[8] R v Verdins (2007) 16 VR 269 (‘Verdins’).

27Mr Cummins reports that you have intermittently suffered from a major depressive disorder of moderate severity but you commenced medication around four months ago and this has stabilised your mental health.

28You have one minor prior court appearance for drug and dishonesty offences for which you were fined without conviction. I regard this as irrelevant for the purposes of sentencing you.

29Mr Cummins assessed you as a low-moderate risk of violent reoffending. He recommended that in the future you attend a men’s behavioural change program. You told Mr Cummins you were keen to attend such a program. Mr Cummins found you to be genuinely remorseful and ashamed of your actions.

30You pleaded guilty after a committal, which was conducted on a narrow basis involving legal argument and did not involve the calling of witnesses. Yours is an early plea. It has significant utilitarian value, especially given the ongoing effects of COVID-19 on the administration of criminal justice, and I take that into consideration in sentencing you in accordance with the principles set out in the case of Worboyes v The Queen.[9]

[9] [2021] VSCA 169.

31I am also prepared to find, in conjunction with your expressions of your remorse to Mr Cummins, that your plea is indicative of remorse on your part.

32I find your prospects of rehabilitation to be fair. I make this assessment having regard to your youth and your lack of prior criminal history. You must, however, continue to address your drug use if indeed you are to remain offence-free.

33I take into account that conditions in custody remain difficult in the context of the COVID-19 restrictions and that this is your first time in custody and that you are a relatively young man. The sentencing principles of general and specific deterrence, denunciation, community protection and just punishment are engaged in sentencing you.

34I did have you assessed for a community correction order and you were assessed as suitable. However, while a community correction order is punitive in its nature, its punitive element is insufficient to reflect the gravity of your offending.

35I have concluded that only a sentence of imprisonment consisting of a head sentence with a non-parole period is sufficiently punitive to reflect the objective gravity of your offending and to give proper expression to all the various sentencing considerations.

36Mr Bateman, in the current circumstances, you can remain seated. You are convicted on all charges. On charge 1, you are sentenced to six months’ imprisonment. On charge 2, you are sentenced to two years’ imprisonment. On charge 3, you are sentenced to 20 months’ imprisonment. On charge 4, you are sentenced to six months’ imprisonment. On charge 5, you are convicted and fined $200. On the summary charge, you are sentenced to one month’s imprisonment.

37Charge 2 is the base charge and I order three months of the sentence on charge 1, eight months of the sentence on charge 3 and the one month of the summary charge be served cumulatively to each other and the sentence on charge 2. That makes a total effective sentence of three years and I am directing that you must serve a period of two years before you are eligible for parole.

38Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of five years with a non-parole period of three years.

39Pursuant to s 8(4) of the Sentencing Act 1991 (Vic), I declare that you have served 467 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.

40I make the disposal order sought by the prosecution.

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