Director of Public Prosecutions v Baxter (a pseudonym)
[2021] VCC 597
•13 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELIAS BAXTER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2021 | |
DATE OF SENTENCE: | 13 May 2021 | |
CASE MAY BE CITED AS: | DPP v Baxter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 597 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Intentionally cause injury – Offender struck and punched ex-partner in presence of their child – Domestic violence – Relatively serious example of the offence – Relevant criminal history – Reasonable prospects of rehabilitation.
Legislation Cited: Crimes Act 1958 s 18; Sentencing Act 1991 ss 6AAA, 18, 44.
Sentence: Imprisonment for a period of 2 years with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Buckland | Office of Public Prosecutions |
| For the Accused | Mr R Lawrence | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Elias Baxter[1], you have pleaded guilty to one charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.
[1] A pseudonym.
2You have also admitted your Criminal Record.
Circumstances of the offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4At the time of the offending you were 29 years of age and had been in an ‘on again off again’ relationship with the victim in this matter, Rachel Powers[2], for around nine years. You and the victim had a daughter Jasmine[3], who was four years of age at the time of the offending and lived with the victim. You looked after Jasmine on Sundays when the victim was at work.
[2] A pseudonym.
[3] A pseudonym.
5On Sunday 6 October 2019 at approximately 8am, you attended the victim’s address by arrangement to collect Jasmine. While you were at the address, a verbal argument occurred between you and the victim. The argument was about previous history of cheating on one another, and involved some name calling between both parties. During this incident, you told the victim you had been with her friend for the previous two weeks. The victim then threw a remote control at you, making a small mark in the wall. You left with Jasmine, who was wearing grey rubber boots, the only shoes that fitted her.
6At about 3.30pm you called the victim and advised you would drop Jasmine off at 4pm instead of 5pm. At approximately 4 pm you arrived at the victim’s address in a white 4-wheel drive with Jasmine and a male that the victim did not recognise. You brought Jasmine to the front door. The victim noticed that you had been drinking. She told you not to bring people she did not know to her house. She took Jasmine inside and closed the door. Jasmine had all of her items with her, including her shoes.
7At approximately 4.30pm you and the victim argued over the phone, again about infidelity. Between that time and 5.21pm, there were a number of further calls between you.
8Sometime after 7pm, you took a taxi to a location behind the victim’s address. The taxi driver, Arun Arun, noticed that you were affected by alcohol and holding a Victoria Bitter can. You asked Mr Arun to wait 10 minutes for you at the location and then walked to the victim’s address. The victim was not expecting you and there was no reason for you attending the victim’s address again at this time.
9At approximately 7.20pm the victim was in the kitchen at her unit. She heard her side wooden gate being slammed open and one of her pot plants falling. She then saw you enter her unit through the sliding door, without knocking.
10You walked past Jasmine, who was sitting in the loungeroom watching television and quickly approached the victim who was standing in the kitchen. The living room and kitchen space in the unit was very small. You moved quickly towards the victim saying, ‘where's your smokes?’ two or three times. You cornered the victim into the oven and sink area of the kitchen. You were angry.
11You struck the victim to the face, hard with force. She immediately dropped to the ground and covered her face with her hands. You attempted to pull the victim’s arms away from her face and continued to punch the victim with further blows.
12The victim screamed for help whilst being punched, managed to get out of the kitchen and stumbled over the coffee table in the loungeroom. You left the address via the laundry door and ran back to the taxi.
13The victim’s eye was bleeding and Jasmine asked her what was wrong with it.
14The victim's neighbours, who had heard her screams came to her aid. They called 000.
15You returned to where the taxi was waiting. When you re-entered the taxi,
Mr Arun asked why you came back so quickly, to which you replied, ‘that’s not your business.’16Mr Arun noticed blood on your left hand. You told Mr Arun that if anybody asked about you, to tell them that he had taken you straight from Geelong West to
St Georges Road. You told the taxi driver not to talk about the location near the victim’s address.17As a result of the assault, the victim sustained a swollen right eye, scratches on her neck and nose, her forehead was tender, and she suffered from a headache. It is these facts that relate to Charge 1, intentionally cause injury.
18You were arrested and interviewed by police at Geelong police station on
12 October 2019. During the interview you stated that:· you attended at the victim’s address on 6 October 2019, to pick up Jasmine at around 8.30 am and to drop Jasmine back at approximately 4 to 4.30pm;
· you realised that Jasmine had left her shoes in the car, so you caught a taxi to the victim’s address to drop the shoes back at approximately 7pm;
· you did not force entry and just walked in the door. You knocked on and just opened the door and said, 'here to drop the shoes off' and the victim was not happy;
· when you entered her address, the victim argued with you;
· she then threw a remote at you which hit the wall;
· she went to hit you and you hit her in the face;
· you hit her just once;
· she went hysterical screaming for her neighbours and you left;
· you had not been drinking that day or using anything else; and
· you disputed the victim’s version of events.
19You were remanded in custody on the same day and released on bail in
April 2020.
Nature and gravity of the offending
20Intentionally causing injury is a serious offence which is reflected in the maximum penalty of 10 years imprisonment. In this instance the offence is aggravated by the fact that the assault occurred in the victim’s home and in the presence of your four year old daughter. You went to the victim’s home at a time outside the arrangements you had in relation to picking up or dropping off your daughter, in an angry state, affected by alcohol. You cornered the victim in the small kitchen area and struck her to the face. Further, once the victim was on the ground, you continued to assault her while she tried to cover her face.
21Whilst no victim impact statement was tendered on the plea, there is no doubt that being attacked by you unexpectedly in your intoxicated state would have been a frightening and distressing experience for the victim. It is fortunate that the injuries were not more serious, however they caused pain and discomfort for the victim.
22Your counsel conceded that the offence is aggravated by the fact that it was an unprovoked attack in the presence of a young child. In all the circumstances in my view your conduct on this occasion represents a relatively serious example of this offence in the context of domestic violence.
Personal circumstances
23You were born in 1990 and grew up in Bittern with your parents and sister. When you were around four years of age your parents separated. You then lived with your mother, her new partner and their two children in Lethbridge.
24You attended Lethbridge Primary School and Western Heights College. You had very limited contact with your father and saw him only twice after your parents separated. In 1998 your father died from cancer. Both your father and your stepfather had issues with alcohol.
25In 2005 when you were around 15 you left secondary school and you have had a consistent work history since then. You completed a bricklaying apprenticeship.
26Your own issues with alcohol started in your early teens after having had a long exposure to drinking at home together with alcohol being a part of the culture in your trade.
27Your mother eventually separated from your stepfather and you lived with her in Lara. In 2009 at the age of 18, you were involved in a serious motor vehicle accident fracturing your back, requiring hospitalisation and rehabilitation. You were unable to work for a year. In around 2010 you returned to work at CBT Express loading chickens for transport and you commenced a relationship with the victim.
28You later returned to working in bricklaying as a subcontractor for various employers. Your daughter was born in 2014. You all lived together in Lara with your mother before moving into your own accommodation in Geelong West.
29You currently have a positive and supportive relationship with your mother and siblings and have regular care of your daughter who is now almost seven years of age. A letter from your mother was tendered on the plea. She writes of the difficulties you both experienced during your childhood as a result of your father and stepfather’s abuse as well as the impact the motor vehicle accident has had on you. She confirms her unconditional support of you, whilst recognising that you will require professional treatment to deal with your past and build healthy coping skills for the future.
30It is clear that the combination of alcohol consumption and your tendency for anger is problematic for you. You have a relevant prior conviction for recklessly causing serious injury where you broke the victim’s jaw in a fight. You served three months imprisonment together with a community correction order. In 2017 and 2019 you engaged in treatment for alcohol abuse and in 2020 you were placed on a waiting list for a behaviour change program.
31In September 2020 you successfully complied with and completed the Court Integrated Services Program (CISP). You have gained further insight in relation to the connection between your alcohol abuse and your offending behaviour.
Sentencing considerations
32A contested committal was heard in the Magistrates’ Court on 20 October 2020 during which the victim and other witnesses were cross examined. You made an offer to plead guilty to the charge on this indictment on 12 March 2021 and the matter resolved. Your plea can be considered a plea at the earliest reasonable opportunity in circumstances where the more serious charge of aggravated burglary, which was in issue, was ultimately withdrawn. Your plea has saved the time and expense of a jury trial as well as avoiding the need for the victim to have to give evidence again. Your plea is also significant in the current circumstances of the backlog of trials as a result of the pandemic.
33When you were on remand for this offending you took active steps to address your issues with alcohol by attending Alcoholics Anonymous meetings in custody before the COVID-19 restrictions prohibited physical visits and restricted involvement in educational and rehabilitative programs. As noted, while on bail you successfully completed the CISP. You enjoy the support of your mother who will remain supportive of you upon your release. In my view, while you will require ongoing support in the community to deal with your anger and alcohol issues, you are beginning to gain some insight. You have also demonstrated that you have a good work history. In the circumstances I assess your prospects of rehabilitation as reasonable.
34Deterrence, both general and specific are relevant sentencing considerations together with denunciation of your conduct. A message must be conveyed that domestic violence of this nature involving an unprovoked attack on a woman in her own home, will not be tolerated. Specific deterrence must also be given prominence in the sentencing discretion as you have a relatively recent prior matter of recklessly causing serious injury in addition to other criminal history.
35Mr Lawrence who appeared on your behalf submitted that the relevant sentencing considerations are able to be met by a combination sentence pursuant to s 44 of the Sentencing Act 1991. I had you assessed for such an order and you were found to be suitable. However, taking into account the seriousness of the offence and the relevant sentencing considerations, in my view a term of imprisonment involving a head sentence and a non-parole period is the only appropriate sentence.
Sentence
36Mr Baxter, would you please stand.
37Elias Baxter, on Charge 1, causing injury intentionally, you are convicted and sentenced to 2 years imprisonment. I direct that you serve 15 months before becoming eligible for parole.
38Pursuant to s 18 of the Sentencing Act 1991, I declare that 194 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
39Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to 2 years and 6 months imprisonment, with a non-parole period of 18 months.
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