Director of Public Prosecutions v Battern

[2014] VCC 955

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW DAVID BATTERN

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Mebourne
DATE OF PLEA:	30 May 2014
DATE OF SENTENCE:	19 June 2014 at Latrobe Valley
CASE MAY BE CITED AS:	DPP v Battern
MEDIUM NEUTRAL CITATION:	[2014] VCC 955

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Aggravated burglary – intentionally causing injury
Legislation Cited:            Crimes Act 1958 (Vic), s77(1) and s 18; Sentencing Act 1991 (Vic)
Cases Cited:  Hogarth v R [2012] VSCA 302

Sentence:Total effective sentence of 22 months’ imprisonment with a

non-parole period of 12 months. S 6AAA declaration: 3 years’

imprisonment with a non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ekeren	Solicitor for the Office of Public Prosecutions
For the Offender	Mr J. Verhoeven	Verhoeven & Curtain

HIS HONOUR: 

1Andrew David Battern, you have plead guilty to the following charges;

·Charge 1, that you were in Warragul in Victoria on 29th day of August 2013 entered as a trespasser part of the building known as Flat 1/87 Brandy Creek Road with intent to commit an offence involving an assault to a person therein.  At the time of entering, a person was then present in that part of the building and you knew that a person was then so present or was reckless as to whether or not a person was then so present;

·Charge 2, that you were at Warragul in Victoria on the 29th day of August 2013 without lawful excuse, intentionally caused injury to Christopher William Rumpelmayer. 

2Charge 1 involving aggravated burglary is contrary to s.77(1) of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment. Charge 2 involving intentionally causing injury is contrary to s.18 of the Crimes Act 1958 and carries a maximum penalty of ten years' imprisonment.

3The prosecution has prepared a written summary of the circumstances surrounding the offending.  Such summary has been marked as an exhibit, Exhibit A, and has been accepted by you and your counsel as appropriate representation of the offending.  The important matters of such summary are;

(a), you are presently 36 years old and at the time of the offending, you had been 36 for about a month;

(b), as at 29 August 2013, Christopher Rumpelmayer lived at Flat 1/87 Brandy Creek Road, Warragul and it was his 29th birthday.  Over the previous eight years, Rumpelmayer had had an, "off‑again, on‑again" relationship with Jodie Hansford;

(c), on 29 August 2013 Jodie Hansford went to the flat of Rumpelmayer at about 2 pm at the request of Rumpelmayer to remove her property from the flat;

(d), when she attended, Rumpelmayer verbally abused her, took her mobile phone and called your number, you being her then boyfriend;

(e), Jodie Hansford ran from the flat went Rumpelmayer went to the toilet;

(f), at about 9 pm on the same day, Rumpelmayer was at the flat with Jared O'Connor when he heard a knock at the door.  The security door and the front door were forced from their hinges and two men entered, one of whom was you and the other, Brendan Stewart, who was 41 years at that time;

(g), you punched Rumpelmayer a number of times, the other man held something to his throat;

(h), when police attended the flat, Rumpelmayer was agitated and upset.  Rumpelmayer told the police that you held a knife to his throat when threatening to kill him;

(i), Rumpelmayer was examined at the emergency department of the West Gippsland Hospital on 29 August 2013 and was diagnosed as having a swollen left eye, bruising and tenderness to his left eye and cheek and abrasions and swelling tho his nose (see Exhibit B);

(j), you were interviewed by police on 30 August 2013.  Your responses consisted of "no comment." 

Your counsel relied on the reports from the psychologist, Mr David Bruce.  He initially interviewed you on 31 August 2011 (see report dated 1 September 2011) and more recently on 6 May 2014 (see report dated 7 May 2014). 

4On the basis of such material and the various submissions made by your counsel, I set out details of your personal circumstances, education and vocational background. 

5You were raised in Warragul and attended school until Year 9, after which you were "asked to leave" because of disruptive behaviour. 

6You informed Mr Bruce that you were sexually abused by your step‑father a number of times, and in particular, at the ages of eight and 16.  Apparently your step‑father ultimately admitted such offending and was charged and sentenced to a period of imprisonment.  Apparently that period of imprisonment presently being served by your step-father comes to an end in October of this year.  Your situation was exacerbated by your mother refusing to accept such allegations against your step‑father and descended to calling you a liar, even after the omission of such offences. 

7You described being kicked out of home and after leaving school you lived around the streets around Melbourne and Dandenong. You did form a relationship with a partner for some nine years, but you described such relationship as a difficult relationship.  You later formed a brief relationship with another woman who had a daughter.  Initially, you believed that daughter was your daughter.  When the mother came under the care of the Department of Human Services as a result of drug issues, you took over the care of such child, although it subsequently transpired that the child was not yours.  She was ultimately returned to her mother who had been rehabilitated from her drug problems.

8I note that you have a long criminal history, initially in the name of Andrew David Mumford, but more recently as Andrew David Battern.  Many of the offences relate to the driving of motor vehicles, but in particular, I note:

(a) on 31 January 1995 at Moe Magistrates' Court you were found guilty of the theft of a motor vehicle, you were fined $500 without a conviction being entered;

(b), on 23 July 1996 at Moe Magistrates' Court, you were convicted of intentionally or recklessly causing injury and reckless conduct endangering serious injury, you were fined an aggregate sum of $300;

(c) on 16 December 1996 at Moe County Court you were convicted of aggravated burglary. You were sentenced to nine months' imprisonment with such sentence wholly suspended for two years under the then s.27 of the Sentencing Act 1991;

(d), on 12 March 1999 at Moe Magistrates' Court, you were convicted of a variety of offences including a theft of a motor car, being a prohibited person possessing a firearm, possessing ammunition without a licence and intentionally damaging property.  You were sentenced to an aggregate 90 days' imprisonment which was partially suspended, save for 21 days;

(e), on 23 June 1999 at Moe Magistrates' Court you were convicted of criminal damage and make threat to kill. You were sentenced to a cumulative sentence of 12 months wholly suspended pursuant to the then s.27 of the Sentencing Act 1991;

(f), on 8 October 1999 at Moe Magistrates' Court you were convicted of breaching an intervention order and using threatening words in a public place.  You were fined an aggregate sum of $750;

(g) on 7 February 2000 at Moe Magistrates' Court you were convicted of intentionally causing damage to property and breaching a community based order. You were sentenced to one months' imprisonment wholly suspended for 12 months pursuant to the then s.27 of the Sentencing Act 1991

(h), on 12 December 2000 at Moe Magistrates' Court you were convicted of criminal damage, make threat to kill and handling stolen goods together with a series of driving offences.  You were sentenced to four months' imprisonment wholly suspended and a further community based order for 12 months;

(i), on 23 July 2010 at Latrobe Valley Magistrates' Court you were convicted of an assault with a weapon together with several driving offences.  You were fined an aggregate sum of $1,200 and suspended from driving for six months;

(j) on 2 June 2011 at Latrobe Valley Magistrates' Court you were convicted of unlawful assault together with a driving offence.  You were sentenced to three months' imprisonment, which was partially suspended with a term to be served of one month.  On appeal to the County Court the order of the Magistrate was set aside and you were convicted and released on a 12‑month good behaviour bond.

9Because of your long criminal history, which precludes work in the mines or the army, you generally have been employed in various labouring jobs in the agricultural and horticultural areas.  You are present employed part‑time with Valley Tree Services. 

10When initially interviewed, Mr Bruce was of the opinion that your exposure to the severe and the probability of prolonged childhood sexual abuse manifested the symptoms of emotional behavioural sequelae such as school expulsion, vagrancy, crime and failed relationships.  In particular, Mr Bruce noted that "intense and almost paranoid resentment are characteristic," and being bottled up tends to lead to explosive outbursts. 

11At that first interview, you describe some suicidal thinking and Mr Bruce considered it would be essential that you commenced with psychological treatment as soon as possible. 

12When more recently interviewed, Mr Bruce noted that you had changed your surname as a way of "distancing" yourself from past associations with your step‑father.  Mr Bruce also noted that since his last consultation, you did attend a psychologist for a few visits, but did not persist. You continue to find thinking about the sexual abuse very distressing and characteristically you make a great effort to avoid doing so.  However, Mr Bruce does consider that you still retain a tendency to overreact when highly stressed, which is characteristic of someone who has been abused. 

13After the relationship with your partner of ten years came to an end, you have remained in a reasonably social relationship.  In or about August 2013, you formed a relationship with Jodie Hansford, and you effectively entered a de‑facto marriage with her in mid‑November 2013.  In particular, you gave a history that Jodie has had a significant mental health problem suffering from anorexia nervosa which leaves her diminutive and physically frail. You have regularly attended Monash Medical Centre for treatment to which you are now adhering well. 

14You described to Mr Bruce that because the telephone call had been made from Rumpelmayer's flat at the time that Jodie was attending, you heard Jodie screaming when being abused by Rumpelmayer.  In particular, Mr Bruce states; 

"The sequence of events leading to the assault is before the court.  Mr Battern felt protective when he heard Jodie screaming, but the obviously situation of abuse of someone relatively helpless reactivated his own past mental torment and resulted in an impulsive overreaction.  He freely admitted to me that his actions were stupid."

15At the time, according to Mr Bruce, you were overwhelmed by your immediate feelings which were akin to panic on Jodie's behalf.

16Further, Mr Bruce was of the opinion that you have not come near to resolving the sequalae of the childhood trauma and again, you have been advised to take steps to do so. 

Conclusion

17You have pleaded guilty to two offences, both of which involve violence.  As I have noted, the charge involving aggravated burglary carries a maximum penalty of 25 years' imprisonment.  Relatively recently, the Court of Appeal made general comments as to the appropriate sentencing in relation to aggravated burglaries, perhaps more particularly, what is referred to as a home invasion (see Hogarth v The Queen [2012] VSCA 382). In particular, the court highlights the seriousness of such an offence.

18I also take note that you have a long criminal record.  Such record indicates a conviction for unlawful assault in June 2011 and an assault with weapon in 2010.  I was supplied with no particular details about this offending.

19I do accept that you have had a traumatic childhood, seemingly being the subject of sexual abuse by your step‑father.  I accept the opinion of the psychologist that you still continue to suffer symptoms of the residual effects of such sexual abuse, manifested in a tendency to overreact when confronted with highly stressful situations. 

20I also accept that it would have been highly stressful and provocative when you heard the screams of Jodie on the telephone during the time that the complainant, Rumpelmayer, was abusing her at his premises.  Furthermore, it may be that such a reaction is heightened when one considers that Jodie was suffering from anorexia nervosa leaving her diminutive and physically frail, giving rise to a perception that she was very much in need of protection. 

21However, I do not that the abuse occurred at about 2 pm on 29 August 2013 and it was not until 9 pm on the same day, that is some seven hours later, that the offending took place.  I can only form the view that you, in company of with another, made a deliberate plan to attend the premises of Rumpelmayer in order to assault him in retribution for the events involving Jodie earlier in the day.

22The community will not tolerate such violence notwithstanding your motives for precipitating such violence.  It can never be that people can take the law into their own hands. 

23I consider that the appropriate considerations in relation to sentencing include denunciation of such violent acts.  Furthermore, particular and general deterrence are relevant; that is, it is important that you are deterred from performing such violent acts and indeed, members of the public are deterred from performing such violent activities.  I also take account of your previous criminal record.

24I also consider that it is appropriate to take the following into account in mitigation to your sentence:

(a) Your early plea of guilty, which clearly had some social utility saving the cost of the trial;

(b) I accept that this was not an act of random violence, but to your mind, was brought by, at least in part, hearing the screams of your then girlfriend over the telephone when being abused by Rumpelmayer.

25Although I believe you consider that the offending was a “stupid thing”, it would appear that little remorse has been shown by you.

26Accordingly, I order as follows - stand up, Mr Battern -

27(a) In relation to Charge 1 involving the aggravated burglary, you are convicted and sentenced to a period of twenty (20) months' imprisonment;

28(b) In relation to Charge 2 involving intentionally causing injury, you are convicted and sentenced to a period of six (6) months' imprisonment, two months of which are to be cumulated with a sentence imposed in relation to Charge 1;

29(c) There will be a total effective sentence of 22 months and you must serve a period of imprisonment of 12 months before becoming eligible for parole.

30(d) Pursuant to s.6AAA of the Sentencing Act 1991, I declare that absent your pleas of guilty, I would have ordered an effective sentence of three years’ imprisonment with a non‑parole period of twenty (20) months.

31(e) I order, pursuant to s.464ZF of the Crimes Act that a sample be taken or be retained for forensic purposes. 

32Yes, very well.  I will allow any members of the family to speak to the prisoner before he is taken away. 

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