Director of Public Prosecutions v Baxter
[2022] VCC 334
•8 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-02291
DIRECTOR OF PUBLIC PROSECUTIONS
| v |
DANIEL BAXTER
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2022 | |
DATE OF SENTENCE: | 8 March 2022 | |
CASE MAY BE CITED AS: | DPP v Baxter | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 334 | |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Causing injury intentionally – Contravene intervention order intending to cause harm or fear for safety – Family violence – Serious example of causing injury intentionally – Violence in front of young children – Offence committed on bail – Early plea of guilty – Impact of COVID-19
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Filiz The Queen [2014] VSCA 212; Pasinis v R [2014] VSCA 97
Sentence: Total effective sentence of three years and one and a half months imprisonment with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Stephen Andrianakis & Associates |
HIS HONOUR:
1 Daniel John Baxter, you have pleaded guilty on indictment no. N10668905 to two charges of contravention of an intervention order intending to cause harm or fear for safety and one charge of causing injury intentionally.
2 You have also pleaded guilty to relevant summary offences, committing an indictable offence whilst on bail, contravene bail conduct conditions and contravene interim family violence intervention order.
3 The maximum penalty for contravening an intervention order intending to cause harm or fear for safety is five years' imprisonment. The maximum penalty for intentionally causing injury is 10 years' imprisonment. The maximum penalty for committing an indictable offence whilst on bail, three months' imprisonment. The maximum penalty for contravening bail conduct conditions, three months' imprisonment and the maximum penalty for the relevant summary offence of contravening a family violence interim intervention order is two years' imprisonment.
Circumstances of Offending
4 The facts of the matter are set out in the summary of prosecution opening, which was filed on the plea and was Exhibit A on the plea hearing. I will summarise the offending in somewhat briefer terms.
5 Your victim in each of these matters was your former partner and you have two children together, aged eight and six. There were access arrangements in relation to your children. In April 2020, the Frankston Magistrates' Court issued an interim family violence intervention order to protect persons, being your victim in this matter and your two children. At the time of the commission of the offences, the subject of the indictment, you had been charged with unrelated offences involving the same victim. You had been released on bail in respect of those charges and thus you were on bail in respect of serious matters in relation to the same victim at the time of your commission of the offences on the indictment before me. A condition of your bail was to reside at Finlay Street. However, you had been living in Somerville. You had not notified the informant of the change of address. A further condition of bail was not to consume alcohol and as I will come to, you breached that condition also.
6 On 2 December 2020, your children were due to spend the night with you. Your victim attended your address and dropped off the children, leaving some belongings. There was a dispute about where the children's school clothes were. You said to your victim, 'You dumb dog slut where are the children's school clothes?' She explained that they were still wet and she would bring them in the morning. You replied, 'Nah, fuck you' and hung up.
7
The following day you attended your victim's address with the two children at 7.15 in the evening. Your victim was shaking her head when she opened the door to you and you said, 'What are you shaking your head for cunt?'
She replied, 'Stop threatening me'. You then came to within one metre of her, pointed your finger at her and said, 'If you get the fucking police back at my house again I'll bury you'. Your victim asked, 'Is that another threat?' You said, 'Actually, you can get fucked. You wait and see what happens'. You then left. That is the conduct, the subject of Charge 1 on the indictment.
8 On 23 March you and your victim and your children went out for dinner together before returning to your victim's address. After the children were in bed you consumed some alcohol. I was told you had three drinks. A discussion took place involving social media and the content of that discussion caused you to become angry and enraged. You poured your drinks on the wall, floor and furniture. You were told to leave the house. Your victim was kneeling on the floor to clean up the mess. You attacked her and began repeatedly punching her in the face. She fell backwards on the floor. She was dazed, unable to even raise her hands in order to protect herself. You continued to punch her to the face and head. When you stopped punching her, you told her not to tell anyone that you had been at the address and you left. That is the conduct, the subject of Charge 2 and also the contravention in respect of Charge 3 on the indictment and it also constitutes the commission of indictable offence whilst you are on bail.
9 Your victim was bleeding heavily from her face. She noticed that her two children were standing in the loungeroom looking at her. One of your sons, who was aged six at the time, stated that he saw you punch his mother to the face about six times whilst kneeling over her. The children were quite distressed, understandably.
10 Photographs were later taken of your victim's injuries. That was referred to in Exhibit 3 and in Exhibit 6, Exhibit 6 being the photographs from the hospital. Ambulance paramedics treated your victim. She was taken via ambulance to the Alfred Hospital, where she remained for six days of treatment for facial injuries.
11 As a result of your assault, your victim suffered a nasal bone fracture, maxillary fractures, injury to left eye retina, a laceration above the right eye, lacerations to her lips requiring stitches to the inside and outside of the mouth, significant dental damage, including chipped teeth, concussion and ongoing pain.
12 Your victim later attended a dental clinic where an examination revealed a fractured tooth and nerve damage to two teeth. On September 2021, root canal treatment was performed on two teeth.
13 On Thursday, 8 April, your victim returned home to her address. She discovered a large bag of birthday presents at the front of the house for your son and inside the bag was a birthday card which stated, 'To [your son], happy birthday you legend. I love you so much and your brother. I am so sorry for what I have done to your mum and your brother, love Dad' and then there are kisses and hugs insignia. On Thursday, 15 April, a letter from you addressed to Billy Baxter, your brother ended up in the letter box of your victim. The envelope was opened, it contained a letter written by you addressed to your two sons. In that letter you expressed remorse for everything that you had put the boys through. The sending of the card and presents and the letter contravenes the family violence order and that is the subject of the relevant summary offence.
Victim Impact Statement
14 I received a victim impact statement from your victim. I will not summarise the contents of that. Quite expectedly, she is shattered by your conduct and in particular, your assault upon her and the impact that it has had on her and her children. That impact has been significant.
Objective Gravity of Offending
15 You have relevant prior convictions, including convictions for recklessly causing injury in 2014, recklessly causing serious injury in 2011 and going back to 2005, a charge of affray. In 2004 you were found guilty of reckless conduct endangering life. It is a relevant history disclosing a man who has a propensity for violence and a problem with controlling his anger and his responses.
16 The aggravating features of the matter before me are a matter of agreement between the parties and indeed, were the subject of agreement prior to the matter resolving. It is conceded and I find that Charge 2, intentionally causing injury is a serious example of the offence of intentionally causing injury. In my view the nature of the injuries, the fact it was committed whilst on bail, and the family violence setting place that offence in the upper end of offences of intentionally causing injury.
17 The injuries were substantial in nature. The treatment of your victim's teeth was protracted. It is conceded that the injuries caused place the offending in the upper range of offence gravity. Aggravating features include the family violence setting. It is a serious example of family violence. It is an example of an offence involving a much stronger and more powerful individual against a vulnerable victim. The assault was completely unprovoked. The assault risked causing much more serious injuries than in fact occurred. Your victim did not defend herself and would have been unable to do so in any event due to the strength and size of you. And of course, the assault took place in front of your two children.
18 In a subsequent conviction you were sentenced to six months' imprisonment on 18 May 2021, for intentionally causing injury and contravene personal safety order offences. These were offences committed against the same victim as the victim in the matters before me. You were on bail for that matter, due to face the Magistrates' Court for a summary plea in early March 2021, which was then adjourned, but it is significant that you were on bail for that at the time of commission of these offences.
19 Your Counsel, Mr Rattray, provided very helpful written submissions, which were Exhibit 1 on the plea. There are a number of matters that could be advanced on your behalf, including what the prosecution concedes can be treated as a relatively early plea, given the nature of the resolution and I was provided with a substantial document, which was a letter of offer, in effect, to the prosecution, which really set out the architecture of the resolution and the way the matter proceeded before me.
Personal Circumstances
20 Your personal circumstances have been set out in some detail in the psychological report of Carla Ferrari, dated 9 March 2021, which was a report prepared for the subsequent convictions I have just referred to. I will not repeat in detail your personal circumstances. You are now 37. You were 36 at the time of this offending.
21 In summary, what I draw from your personal circumstances is that your upbringing had some features of significance. I was told you never knew your natural father and this is a feature of your life, in combination with other circumstances – environmental and personal – that have played a part in shaping you and your responses.
22
You have an older stepbrother, two younger half siblings, including a
half-sister, Ambar, who filed a letter on your behalf and she also attended both court hearings. The letter speaks well of you and is indicative of your remorse and also your prospects of rehabilitation and I accept the contents of that letter.
23 Your mother re-partnered when you were young and there were difficulties with your step-father. Both your mother and step-father have sadly passed away and you continue to grieve their loss.
24 You have made something of yourself in the construction business world, the concrete business, and are quite successful and no doubt will continue to be successful. Your sister provides evidence of your success in that field and it comes through in her letter that she and no doubt others are quite proud of your success in that field. You can be a good provider and role model for your sons once this matter is behind you and importantly, once you are rehabilitated. But given your history you have a way to go before you are rehabilitated.
25 Another matter that arises through the history set out by Ms Ferrari, is that of drug use and I include within that steroid use and alcohol. These are features of your life that have been problematic and have reached a point where you need to be able to sit back and observe that illicit substances and alcohol, in combination with your personality traits which I have touched upon, place you at risk of returning to custody if you find yourself in situations which trigger your anger and your violent tendencies.
26 Your violent conduct towards your partner, the mother of your sons, in front of them, sits comfortably within a pattern of offending that the community is outraged by and deeply concerned about. Dangerous violent men, such as yourself, perpetrating violence against ex-partners, despite the presence of intervention orders, despite the existence of bail conditions, despite the prospect of gaol on the horizon.
Prospects of Rehabilitation
27 You have the financial means and the will and the capacity to arrange and engage with treatment that will help you rehabilitate and reduce the threat that you pose to your ex-partner. And I note on that point that I received the letter from Balance Counselling the psychotherapy clinic, which spoke of your attendances prior to the commission of the offences before me. There are positives and negatives that flow from the contents of that report dated February 21, 2022.
28 The positives are that you have shown a willingness and ability to engage genuinely and to be committed to your rehabilitation. The negatives are obvious - despite your engagement in counselling you committed the offences before me.
29 Hence, I say you have a way to go but there are reasons in your case to consider that your prospects of rehabilitation are nonetheless reasonable and many of them lie in your business ability but also in some of the matters raised by your sister and the obvious matters that arise in relation to your love for your sons and the fact that during this period of custody you have effectively, due to your own actions, lost the meaningful relationship with your sons and it is something that you are motivated to build and repair in the future and that motivation is a protective factor.
Other Sentencing Considerations
30 In terms of other matters in mitigation, I have touched on the early plea. The plea is a significant matter. Returning to the submissions of Mr Rattray, the submission is that you pleaded guilty at the earliest opportunity. I accept that. The plea was offered pre-committal. It was a limited committal, as is agreed by the parties.
31 The plea is very significant, given the state of crisis in the trial lists in this court at present due to the COVID-19 pandemic. Thus, the significance of the utilitarian value of your plea is greater than it otherwise would be.
32 I also take into account the increased burden of imprisonment given that your remand has been during the COVID-19 pandemic and the restrictions and onerous conditions associated with that are well known to the Court.
33 It was urged upon me that the burden of imprisonment and the utilitarian value of the plea during COVID-19 justified the imposition of a different sentence than may have been the case prior to the pandemic. I have concluded that that is not the case but I have concluded that some leniency is extended due to those factors.
34 I accept you are remorseful for the offending and I accept that you have good prospects for rehabilitation based on those matters I have set out. Although, as I have noted also throughout, there are good reasons to have concerns as to your inability to control your anger in certain situations.
35 It was also submitted by your counsel that I should have regard to totality, given that 264 days of pre-sentence detention are available in relation to this matter but you have served a significantly longer period, extending that period since the commission of these offences and I do take that into account.
36 I have also taken into account, which I have already mentioned, that as a direct result of your offending you have lost access to your children. You have not spoken to either of your children since the offence date, which adds to the hardship on remand and will continue to be an additional burden of imprisonment.
37 I had you assessed for a Community Corrections Order and you are, not surprisingly, assessed as suitable. I had you assessed as I wanted to consider the options in relation to how best to reflect the sentencing factors I must but also, how best to address your rehabilitation. I had been contemplating whether a period of imprisonment that might otherwise have amounted to a non-parole period as part of a head sentence in combination with a lengthy Community Corrections Order that was aimed principally at therapeutic matters, would satisfy the various factors and considerations I must take into account in formulating sentence.
38 I concluded that the Community Corrections Order is not appropriate in combination with a period of imprisonment, principally, due to general deterrence, to use a broad umbrella term and also denunciation. General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message towards the perpetrators of domestic violence, that if they offend they will be sentenced to a lengthy period of imprisonment, so that they are no longer in a position to inflict harm.
39
That is a principle drawn from a case I was referred to by Mr Sonnet, on behalf of the prosecution, Pasinis.[1] He also referred me to a passage from
Filiz v The Queen, which is also apposite.[2]
[1]Pasinis v R [2014] VSCA 91 at [57]
[2] [2014] VSCA 212, at [23]
40 But quite apart from the overarching concept of general deterrence and denunciation, in this particular case, the serious nature of the injuries, and the fact that they were committed whilst on bail, have led me to the view that a head sentence better reflects general deterrence and denunciation in the circumstances of this case than could be done with a combination sentence.
41 Further and secondary to those considerations, I formed the view that you are a good candidate to do well on parole and a substantial part of the sentence I impose will have the availability of parole. Your prospects of rehabilitation are generally good if you can deal with the issues that I have referred to throughout this sentence and you have the means and the capacity to augment parole conditions with counselling and support services that I am told, and your recent history suggests, you have insight into and acknowledge your need for those services.
42 I have already mentioned the letter from your sister, which is supportive of my findings in relation to your prospects of rehabilitation and the motivating factor of your young children.
Sentence
43 Accordingly, I sentence you as follows, Mr Baxter.
44 On Charge 1, you are sentenced to three months' imprisonment.
45 On Charge 2, intentionally causing injury, you are sentenced to three years' imprisonment and I have taken into account all of those aggravating features that I have mentioned in arriving at that sentence.
46
In relation to Charge 3, the contravention that overlaps substantially with Charge 2, in terms of the conduct you are sentenced to
six months' imprisonment.
47 In relation to the relative summary offences, Charge 9, which is the commission of offence whilst on bail, two months' imprisonment.
48 Charge 10, seven days imprisonment.
49 Charge 14, seven days' imprisonment.
50 I make the following orders for cumulation. One month of the sentence imposed on Charge 1 and 14 days of the sentence imposed on Charge 9 are to be served cumulatively upon each other and on the sentence imposed on Charge 2.
51
Charge 9, the offence of committing an offence whilst on bail is often a charge for which sentences imposed are served wholly concurrently and that is usually for very sound reasons and indeed, almost always the case when I sentence in respect of that offence. Because the fact of the commission of the offence whilst on bail is an aggravating feature of the instant offence and is thus reflected in the punishment, I have taken some care as not to doubly punish between
Charge 9 and Charge 2. However, given the egregious nature of the contravention and the circumstances of your assaulting your partner in the manner in which you did whilst on bail, in relation to similar offences I concluded that that modest portion of 14 days cumulation from Charge 9 was appropriate.
52 That leaves a total effective sentence of three years and one and a half months as a head sentence. I set a non-parole period of 18 months. I declare, pursuant to s 18 of the Sentencing Act[3] that you have served 264 days of pre-sentenced detention.
[3]Sentencing Act 1991 (Vic)
53 Pursuant to s 6AAA, I declare that had you not pleaded guilty you would have been sentenced to a head sentence of four years with a non-parole period of two and a half years.[4]
[4]Sentencing Act 1991 (Vic)
54 There is an application made for an alcohol exclusion order. The order was made on the basis that I could be satisfied on the balance of probabilities that at the time of the commission the offence the subject of Charge 2 and 3 of the indictment you were intoxicated and that your intoxication significantly contributed to the relevant offence. I am unable to be satisfied on balance that you were indeed intoxicated. If I am wrong about that I am certainly not satisfied on balance that your intoxication significantly contributed to the relevant offence. Accordingly, I decline to make the alcohol exclusion order.
55 HIS HONOUR: Now were there any other order orders sought? I don't think so.
56 MR SONNET: I don't believe so Your Honour.
57 MR RATTRAY: No Your Honour, thank you.
58 HIS HONOUR: All right, yes, we'll adjourn the court.
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