Director of Public Prosecutions v Batterbee (a pseudonym)
[2022] VCC 2047
•23 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00394 & CR-22-00831
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN BATTERBEE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2022 & 23 November 2022 | |
DATE OF SENTENCE: | 23 November 2022 | |
CASE MAY BE CITED AS: | DPP v Batterbee (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2047 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Plea of guilty – reckless conduct endangering persons – kidnapping – offending against intimate partner - driving resulting in victim falling from moving motor vehicle in presence of their young daughter – dragged to car and unable to leave vehicle - persistent contravention of family violence intervention order by repeated contact – limited, but relevant criminal history
Legislation Cited: Sentencing Act 1991
Cases Cited:Boulton v. The Queen [2014] VSCA 342
Sentence: Indictment No. L10455373A: 10 months’ imprisonment followed by 18-month community correction order
Indictment No. L10455373B: 18-month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. James | Office of Public Prosecutions Victoria |
| For the Accused | Mr S. Kelly with Mr N.A. Howard | Ressan Lawyers |
HER HONOUR:
1Justin Batterbee[1], following a sentence indication hearing before me on 27 July 2022, you pleaded guilty to the following offences on Indictment L10455373A:
(a) reckless conduct endangering persons contrary to s23 of the Crimes Act 1958 ('the Act'), the maximum penalty for which is five years' imprisonment; and
(b) kidnapping contrary to the common law, the maximum penalty for which is 25 years' imprisonment.[2]
[1]A pseudonym.
[2]Section 320 of the Crimes Act 1958
2You also pleaded guilty to two charges of persistent contravention of a family violence intervention order contrary to s125A of the Family Violence Protection Act 2008 ('the FVPA') in respect of Indictment L10455373B, the maximum penalty for those offences is five years' imprisonment or a fine of up to 600 penalty units, or both.
3
The victim of your offending was your former partner, Ms Laura Savige[3], with whom you have a daughter who was born in 2019. Your relationship with
Ms Savige was not a stable one, and there were periods of separation. At the time of this offending, Ms Savige had returned to live with you, together with your daughter.
[3]A pseudonym.
4You were born on 20 August 1983. You were 36 years old at the time of the offending and Ms Savige was in her early 30s.
Background and circumstances of offending
5The circumstances of your offending are detailed in the Amended Summary of Prosecution Opening dated 20 September 2022, which is the agreed basis upon which you are to be sentenced.
6As stated, your relationship with Ms Savige was a turbulent one, marked by verbal and physical violence, including occasions where you would self-harm when in a fit of rage.[4] There were periods of separation followed by reconciliation throughout the relationship.
[4]Summary of Prosecution Opening dated 25 July 2022, as amended on 20 September 2022 at [2]; Statement of [Laura Savige] dated 26 July 2022.
7
A number of incidents of family violence led to the making of two interim family violence intervention orders; first on 21 November 2019 and again on
13 February 2020. Both intervention orders nominated you as the respondent and Ms Savige and your daughter as the persons protected by the order.
8The first incident occurred on 26 October 2019 where you yelled at Ms Savige in the presence of your daughter and punched the windscreen of her car, causing it to break. The second incident occurred on 1 November 2019 when you became angry in the car on the way to Phillip Island and pulled Ms Savige by the hair and punched the passenger side of the car. The third incident occurred after you resumed cohabiting on 15 November 2019, during which you became angry with Ms Savige for failing to return your call and then ripped her clothing and forced her to leave the house without her daughter.
9Although you are not charged with any offences arising from these three incidents, they are the background to the intervention order made in November 2019 that is the subject of the charges of persistent breach of an intervention order and are the context in which your offending on 12 February 2020 occurred.
10Between December 2019 and February 2020, you and Ms Savige exchanged numerous messages after Ms Savige contacted you to recover some of her clothing from your address. After a period of separation, Ms Savige returned to live with you between 2 January to 13 February 2020.
Incident on 12 February 2020
11On 12 February 2020, you and Ms Savige argued at home about a proposed change to the conditions to the intervention order. At approximately 7 pm, you drove to a BP service station in a Holden Cruze sedan with Ms Savige seated in the front passenger seat, and your daughter in the back of the car. You continued to argue about the intervention order at the service station for about 30 minutes while you were parked beside one of the petrol pumps.
12
CCTV footage at the petrol station captures Ms Savige open the passenger side door to get out, but as she does so, you began to drive forward causing Ms Savige to fall from the moving car onto the bitumen surface of the service station.
Ms Savige states that she 'thought things would not end well while he was enraged…I tried to get out of the car, and when he noticed this, he pressed his foot down on the accelerator. I stumbled out of the car, hitting my head on the ground and frantically ran into the petrol station'.[5]
[5]Ibid, at [13]
13This is the conduct that gives rise to the charge of reckless conduct placing Ms Savige in danger of serious injury – Charge 1.
14After Ms Savige ran into the service station, you chased after her. The service station assistant heard Ms Savige say, 'no, don't' as you grabbed hold of her. The attendant says he heard her repeat, 'don't, don't'. CCTV footage from inside the service station shows Ms Savige crouching low near a table, when you approach her, pull her up under the arms and lift and push her out of the store. A further struggle took place near the car, as Ms Savige resisted your attempts to force her back into the car.
15Another witness heard you say words to the effect, 'because of you I'm gonna go to gaol'. After you had succeeded in forcing Ms Savige into the car, the witness heard you say, 'see wasn't that hard was it'.
16When she was inside the car, Ms Savige states that she 'knew that I could not leave as he would just force me back and would be more furious. I was instilled with fear…'[6]
[6]Ibid, at [23]
17CCTV footages captures you driving away rapidly from the service station.
18You continued to yell at Ms Savige as you drove away, telling her that she had 'ruined [your] life' and that the incident would ‘send [you] to gaol’, or words to that effect. Ms Savige repeatedly apologised to you in an effort to try to calm you down.
19
You stopped at a secluded area for a period and got out of the car briefly.
Ms Savige took this opportunity to try to escape from you but could not get the car to start. You returned to the car and drove to another petrol station, at which
Ms Savige did manage to start the car and drive away from you with her daughter still in the car.
20Your conduct at the time you forced Ms Savige to leave the service station and into the car until she ultimately drove away from you at the second service station is the subject of Charge 2 – kidnapping. The prosecution was unable to specify the period over which this incident occurred. By your plea, you accept you had no lawful justification for depriving Ms Savige of her liberty by acting in this way.
21Ms Savige subsequently contacted you and returned to your home the following day.
22The police responded to emergency calls made by witnesses to the incident and obtained a copy of the CCTV footage to which I have referred, and other witness statements. However, Ms Savige did not provide a statement to police when first contacted in February 2020. She only provided a comprehensive statement to police on 26 July 2022, shortly prior to the sentence indication hearing.
23You were arrested on 20 February 2020. In accordance with your rights, you made no comment in response to questions asked of you by the police. You were then remanded in custody and served 46 days before being granted bail on 6 April 2020.
Persistent Contravention of Intervention Orders
24As stated, you have also pleaded guilty to two charges of persistent contravention of a family violence intervention order.
25
The first charge relates to the period between 27 December 2019 and
23 January 2020 during which you sent over 200 text messages to Ms Savige , in contravention of the intervention order made on 21 November 2019.
26
The second charge relates to the period between 25 January 2020 and
18 February 2020 during which you sent over 100 text messages to Ms Savige in contravention of the intervention order made on 21 November 2019.
27It is relevant to note that you indicated an intention to plead guilty to these two charges at an early date, on 25 August 2021. Your plea to the other charges was entered, as I stated, following the sentence indication hearing on 27 July 2022.
Nature and gravity of offending
28The offence of kidnapping is inherently serious, as reflected by the maximum penalty of 25 years' imprisonment fixed by Parliament.
29Here, the fact the offending occurred in the context of an intimate relationship and in the presence of your young daughter only increases the seriousness of your conduct. Moreover, although you are not to be punished twice for separate offending, it is relevant that your act of forcibly removing Ms Savige from the service station and into the car occurs immediately after she had tried to exit the car, at which point you accelerated, reckless as to the risk of serious injury to her. Fortunately, that risk did not eventuate. She had then sought refuge in the service station.
30
On your behalf it was emphasised that your offending during this incident was not accompanied by overt acts of violence, beyond the force used to remove
Ms Savige from the service station and to get her into the car. Moreover, that once in the car, that you did not engage in any further violence or make any threats of violence, although you did yell at her. It was also submitted that the victim did not sustain any injuries as a result of your offending. I accept these submissions but note that there are other indicators of the seriousness of your offending. In particular, it is clear from the statements of Ms Savige, to which I have referred, that she was fearful of you throughout this incident. Although Ms Savige has not provided a victim impact statement, I accept that this entire incident would have been a frightening ordeal for her.
31I accept that your offending that day was not premeditated or planned. Nonetheless, your offending conduct was an entirely inappropriate response that involved controlling and excessively forceful behaviour towards your partner, clearly motivated by anger towards her following a lengthy argument. The fact you were prepared to act this way in a public place and in the presence of others, when Ms Savige was clearly seeking to physically distance herself from you, is also a concerning aspect of your conduct.
32In relation to the two charges of persistent contravention of an intervention order, the seriousness of that offending is marked by the sheer volume of messages sent by you to the victim in breach of the order. The intervention order was put in place to protect the victim from any such contact, and it is not a matter that goes to moderate the seriousness of your offending that the victim was also in contact with you throughout this period. I do, however, accept the submission made on your behalf that despite the volume of text messages, the content of these messages do not indicate threatening, abusive, or derogatory messages directed towards the victim.
Personal circumstances
33I now turn to your personal circumstances.
34You were born in Egypt in 1983 and, together with your parents and an older brother, came to Australia in 1988. Your mother died of a heart attack in 2012, and you remain close to your father. You are now 39 years old. Your older brother works shifts as a prison officer.
35You enjoyed a stable childhood. You attended Broadmeadows East Primary School and continued onto high school, completing Year 10. Following this you commenced a six month apprenticeship in mechanics, then worked in Thomastown as a cabinet maker for a year. You completed short courses, and obtained a forklift license, and commenced employment at the Ford Motor Company, where you worked for eight years.
36Following the closure of the Ford factory, you were paid a severance package, from which you invested in a truck, tools, and equipment to undertake sub-contract work through your company, S & J Tipping. You also worked as a security guard at nights on a casual basis. During this period, you were working six or seven days a week, earning a steady income. You continued to work in this capacity until a motorcycle accident in May 2022.
37You have demonstrated a strong work ethic throughout your entire adult life.
38You have had two significant relationships in your life. In 2011 you married your first wife, with whom you had a daughter. That marriage ended in 2014. You no longer have any contact with your child from that relationship.
39In 2017 you commenced your relationship with Ms Savige and as stated, had a daughter together in October 2019. Following the offending, you resumed a brief period of cohabitation with Ms Savige when she contacted you in January 2021 but after a period of six weeks she left, and you have had no contact with each other since May 2022. You have expressed no intention of resuming the relationship.[7]
[7]DJCS Extended Pre-Sentence Assessment – Outcome Report dated 12 October 2022 at p5.
40
You share a close and supportive relationship with your father. Over the past two years, you father has suffered two heart attacks and requires multiple daily medications. You have lived with your father since
April 2021 and provide support to him with his medical issues. You sold the house you lived in with Ms Savige in November 2021 and used the proceeds to fund your legal representation in this matter.
41
On 20 May 2022 you suffered a serious injury to your left leg following a motorcycle accident. A letter authored by Mr Raman Sethi, Orthopaedic VMO dated
16 August 2022, states that you suffered a tibial plateau fracture, accompanied by compartment syndrome. You underwent surgeries involving the insertion of plates to repair the fracture on 27 May 2022. You were placed in a hinged knee brace for three months followed by extensive physiotherapy.
42In a letter dated 5 September 2022, your physiotherapist, Mr Andrew Tang, wrote that you are likely to make a full recovery after 12 to 18 months. At the time of this assessment, Mr Tang stated that 'the fracture was fixated however the integrity of [your] ligaments [is] questionable'. He states that the severity of your injury meant you were unable to walk without a hinge brace and crutches to support your stability.
43In September 2022 you fell and fractured your other foot, requiring a supportive boot. That fracture is expected to heal but will also require physiotherapy.
44Following the motorcycle collision, you were assessed by psychologist, Ms Kiri Tsalparos in relation to the psychological impact of your resulting leg injury. The results of that assessment confirm you suffer no significant depression, anxiety or stress arising from collision.
45You have a limited criminal history. In 2007 you were sentenced to a 12-month community correction order for handling stolen goods. In 2010 you were sentenced to an adjourned undertaking without conviction for resisting police, that order was dismissed in February 2011. Relevantly, on 18 May 2015 you were fined $500, without conviction, for the offence of contravening a family violence intervention order. With the exception of this last matter, your prior criminal history is not relevant to the sentence I am to impose for this offending.
Matters in mitigation
46Having assessed the gravity of your offending, I now turn to the matters raised on your behalf in mitigation of sentence.
47First and foremost is your plea of guilty. Your plea to the charges of persistent contravention of an intervention order was entered early. You are entitled to have that early plea reflected by way of a reduction in the sentence to be imposed on those two charges.
48You entered a plea to the remaining charges on 27 July 2022 after a sentence indication hearing that was listed prior to the trial date fixed in that matter. This was not an early plea, but the plea still has utilitarian benefit. By your plea, you saved the victim from having to relive the events by giving evidence and saved the court and the community the time and cost associated with a trial. Moreover, there is heightened utility attached to any plea entered at this time given the backlog of trials in the wake of the pandemic. Your plea is also indicative of an acceptance of responsibility for your offending conduct, but in the circumstances of this case, there is little evidence of remorse for your conduct towards the victim beyond your plea.
49The second factor relevant in mitigation is the added burden of your imprisonment. As stated, you have a limited prior criminal history and have never served a sentence of imprisonment in the past. You were remanded on these charges on 20 February 2020 and served 46 days before being bailed. This period on remand occurred during the height of the COVID-19 pandemic. Prison authorities imposed additional restrictions to respond to the risks posed by the virus at this time, including periods of lockdown, limits on vocational and other programs, and suspension of face-to-face family visits. For you, this first experience of custody was undoubtedly a difficult and isolating one. I have taken the additional burden of your time on remand into account in moderation of your sentence.
50The sentence I impose today will also be subject to additional burdens, not only by reason of the restrictions that continue in place to respond to COVID-19 in custodial settings, but also due to your mobility issues following the motorcycle collision in May 2022 and your concern for your father's wellbeing given his history of poor health. I have taken this additional burden into account in determining the custodial term of your sentence.
51
Finally, a period of close to two years has elapsed since this offending. A committal hearing did not proceed until 24 February 2021, 12 months following your arrest. This delay was likely due to the impact of COVID-19. A further delay was necessitated by your hospitalisation after the motorcycle accident in
May 2022. This was the cause of additional delay in these proceedings, for which you do not bear responsibility. I accept the submission made on your behalf that this delay would have been a source of stress and uncertainty for you while these charges remained outstanding. I have moderated your sentence in light of these considerations.
52A period of delay can also be relevant to an assessment of an offender's prospects of rehabilitation.
53
Subsequent to this offending, you were sentenced to a further adjourned undertaking, with conviction, for the offence of intentionally damaging property on 3 August 2020. It was a condition of the undertaking that you complete a Men's Behavioural Change Program (MBCP). You commenced the MBCP in
December 2020 and engaged in 11 weeks of the group programs and an additional seven sessions of individual case management. According to a report from DPV Health dated 6 June 2022, you continued to minimise and deny your use of violence and demonstrated limited insight into your offending behaviour. You were assessed as continuing to pose an ongoing risk to yourself and others at the time you were exited from the program.[8]
[8]Exhibit B – letter from DPV Health dated 6 June 2022
54Although you have a limited prior criminal history, your prior and subsequent incidents of family violence coupled with the poor assessment following your engagement in a MBCP from December 2020 means that I cannot assess your future prospects in an entirely favourable light. Specific deterrence still has a role to play in the sentence I impose on you.
55However, there are certainly some positive indicators for your future rehabilitation. You have ceased all contact with Ms Savige and have no pending matters. You have complied with strict conditions of bail. You have a strong work history and the ongoing support of your father. You intend to resume employment, provided you fully recover from your leg injury. However, your future rehabilitation will also depend on your preparedness to engage effectively in offence-specific programs and to develop insight into your offending behaviour.
56Following your plea, I had you assessed as to your suitability for a community correction order. Following a comprehensive assessment, you were found suitable for such an order. In the Community Corrections assessment report dated 12 October 2022, the author states you acknowledged the wrongfulness of your conduct and expressed a willingness to engage in a further MBCP. The report states that you 'presented as motivated to engage with this service and engage in interventions'. You consented to a community correction order being made.
Other sentencing considerations
57I turn now to other relevant sentencing principles. In addition to specifying the matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 describes the purposes for which a sentence may be imposed. In a case such as this, the relevant sentencing principles are just punishment, deterrence, denunciation, and community protection. In sentencing you, I must send a clear message to others that instances of family violence will not be tolerated. The sentence must also promote your rehabilitation, through which the protection of the community may be achieved.
58Section 5(2H) of the Sentencing Act 1991 requires the court to impose an immediate term of imprisonment for the offence of kidnapping, which is a category 2 offence under that Act. No submission was made that any of the exemptions apply.
59However, s5(2H) does not preclude a non-custodial term for other offences for which you are to be sentenced. For these offences, a custodial term may only be imposed as a last resort. Further, s5(4C) of the Sentencing Act 1991 provides the court must not impose a custodial sentence unless it considers that the purpose or purposes for which a sentence is imposed cannot be achieved by a community correction order with appropriately fashioned conditions. As the Court of Appeal observed in Boulton[9], a community correction order is itself a punitive order, and through which the sentencing purpose of general deterrence may be achieved.
[9]Boulton v. The Queen [2014] VSCA 342
Sentence
60Balancing the factors to which I have referred, whilst having regard to the maximum penalty for each offence, and the application of s5(2H) to the offence of kidnapping, I now sentence you as follows:
Indictment L10455373A
61On Charge 1 – reckless conduct endangering persons – you are convicted and sentenced to an 18-month community correction order.
62On Charge 2 – kidnapping – you are convicted and sentenced to 10 months' imprisonment.
63I order that the 18 month community correction order imposed on Charge 1 commence upon completion of the sentence imposed on Charge 2.
64Pursuant to s18(4) of the Sentencing Act 1991, I order that 46 days of pre-sentence detention be reckoned as already served pursuant to the sentence imposed on Charge 2.
Indictment L10455373B
65On Charges 1 and 2 – persistent contravention of a family violence intervention order – you are convicted and sentenced to an 18-month community correction order to commence upon completion of the sentence imposed on Charge 2 on Indictment L10455373A.
66Pursuant to s40 of the Sentencing Act 1991, a single community correction order is imposed for both Charges 1 and 2 on this indictment as they are offences of a similar character and are founded on the same facts.
67The following special conditions apply to the community correction orders imposed on both indictments to be served concurrently:
(a) That you undertake and complete 120 hours of unpaid community work;
(b) That you be supervised for the duration of the order;
(c) That you be assessed for and, if found suitable, complete offence-specific programs as directed.
68For the avoidance of doubt, I make it clear that the total amount of unpaid community work to be undertaken by you pursuant to the two community correction orders is 120 hours.
69In addition to these special conditions, there are standard conditions attached to the community correction orders. First and foremost, you must not commit any other offences punishable by imprisonment during the 18-month orders. You must report within two working days of your release to the nearest community corrections office. You are required to advise your supervising corrections officer of any change of your residential or work address and you must do so within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising corrections officer.
70You should be aware the community correction orders can be breached if you do not comply with the conditions of the orders, or if you reoffend while they are in place. If you were to do so, it is a separate offence for which you may be sentenced in addition to being liable to be resentenced on these charges.
71Finally, pursuant to 6AAA of the Sentencing Act 1991, I am required to indicate the sentence I would have imposed had you not pleaded guilty. There is an artificiality in doing so, particularly as you entered an earlier plea on the two charges of persistent contravention of an intervention order. As best I can, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a sentence of two years', six months' imprisonment with a non-parole period of one year, eight months.
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