Director of Public Prosecutions v Bettenay

[2014] VCC 2081

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02326
CR-13-02327

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIELLE LOUISE BETTENAY
MARK GEORGE SPATHIS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2014 and 2 December 2014
DATE OF SENTENCE:	3 December 2014
CASE MAY BE CITED AS:	DPP v Bettenay
MEDIUM NEUTRAL CITATION:	[2014] VCC 2081

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. E. Regan	Office of Public Prosecutions
For the Accused Bettenay	Mr R. H. Lawrence	James Dowsley & Associates
For the Accused Spathis	Mr J. P. Fitzgerald with Mr A. Pyne	Victoria Legal Aid

HIS HONOUR: 

1Mark George Spathis and Danielle Louise Bettenay, you have each pleaded guilty to one charge of intentionally causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

2You each pleaded guilty following discontinuance of more serious charges by the prosecution.  I have taken your pleas of guilty into account in your favour in mitigation of sentence.

3Mark Spathis, you have admitted an extensive criminal history for offending in Victoria, New South Wales and Queensland.  You have not, however, been before a court for offending in relation to violence since 1995.  However, I note your counsel submitted that you have recently served a term of imprisonment for offences involving violence but these are not prior convictions.  Your criminal history is generally speaking for offences of dishonesty.

4Danielle Louse Bettenay, you have also admitted a criminal history, however your history is limited and is now eight years old and of no significance for sentencing purposes in this case.

5The prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows:

6On 5 June 2013, you both resided in a Ministry of Housing flat in Ascot Vale.  The victim of your offending, Shane Warren, had previously been in a relationship with Bettenay and resided in the same building.  That evening you both went out and on your return to your flat in the early hours of the following morning you saw that the front door was open and some property was missing.  Both of you confronted Warren and after a struggle you, Bettenay, struck him on the head with a torch causing a cut to his head.  At that time, you, Spathis, were a party to a joint criminal enterprise with Bettenay to assault Warren.

7Police attended at the premises and you were both arrested.  You both declined to participate in police interviews with the investigating police.

8Offending of this nature is prevalent and the sentence that I impose must be calculated to deter you and others from offending in this way.  You must also be punished for what you have done.

9I now turn to your personal circumstances. 

10Mark Spathis, you were born on 30 September 1969 and are now aged 45.  You grew up in the Gladstone Park area and attended Gladstone Park High School until Year 11.  Following completing your secondary education you commenced an apprenticeship as an electrical mechanic and I accept that you have a good work history.  You have no dependent children but have the support of your mother and your sister, who were present in court during the plea in mitigation.

11For many years you have been addicted to illegal drugs of dependence, in particular heroin, and you suffer from poly substance abuse disorder.  In approximately 2012 your drug addiction turned to methamphetamine, which you consumed in combination with alcohol.

12Prior to your offending in this instance, you had developed a relationship with Danielle Bettenay, as I have already observed and in all probability both of you met one another when you were purchasing illegal drugs of dependence from Mr Warren. 

13Your relationship with Ms Bettenay was a turbulent one, both of you were addicted to drugs at the time and the dysfunctional nature of your relationship was compounded by your use of methamphetamine.  In that context you offended against Bettenay resulting in you being prosecuted for that offending and serving a term of imprisonment.  In all probability your offending in this instance against Mr Warren was closely connected to your drug use and the supply by him of drugs to you and to Ms Bettenay.

14Whilst in prison, you were threatened by an associate of Mr Warren and you have been in protective custody.  For that reason you have not been able to undertake appropriate courses in relation to drug addiction but you are currently in receipt of methadone and will continue to receive that substance on your release from prison.

15Your counsel informed me that upon your release from prison you will obtain transitional accommodation and I accept that you will have the ongoing support of your long-suffering mother, who, as I have said, is here in court today.

16Any assessment of your prospects of rehabilitation must be guarded.  You have an extensive criminal history and a long established addiction to drugs of dependence which have led you to offend in the past.  As I have observed during the course of these proceedings, it is essential that you remain drug-free, otherwise no doubt you will continue to offend and in all probability return to prison.

17Nevertheless your offending on this occasion falls at the lower end of the scale and I accept in both cases that had the prosecution not proceeded with the charge of aggravated burglary, involving the commission of the offence by the offenders intending to assault a person and being armed at that time, that the matter would have proceeded in the Magistrates' Court and in all probability in relation to the charges that are now before this court.

18Danielle Louise Bettenay, you were born on 28 May 1979 and you are now aged 35 years.  You come from a supportive and stable family background.  You completed your VCE at Mandeville Hall and I accept that you are a person of above average intelligence. 

19It would appear, however, that your life became unsettled when you travelled to Europe at the age of approximately 15 to work as a model.  You were exposed to drugs and alcohol as you were a teenager and that has led to a well-established poly substance abuse disorder in your case.  You have struggled off and on with your drug addiction since your late teens and your drug addiction has exposed you to a number of circumstances which may properly be described as tragic. 

20You have been in a number of turbulent relationships with drug addicted men and this in part is the reason that you are before this court charged with this offence.  You met Mr Spathis, as I have already observed, when both of you were purchasing drugs of dependence from Mr Warren, a person you had previously had a relationship with.

21In 2012, after falling pregnant, you gave stillbirth to twins.  At this time you were drug-free and this no doubt disturbing and tragic event caused you to return to drug abuse, which in turn led you to your offending in this instance.  I accept that you suffer from post-traumatic stress disorder, both as a result of the stillbirth of your children and as a result of the violence and drug abuse that you have been exposed to during the course of your life.

22I have received in evidence a report from your father, who is a practising doctor.  He was present in court during the course of the plea, together with your mother and I accept that your long-suffering parents have and continue to provide you with ongoing support despite your selfish and destructive behaviour in response to their support of you.

23However, you have, as I have already observed, a very limited criminal history and if you are able to remain drug-free, I accept that your prospects of rehabilitation may properly be described as positive.

24You are currently residing in Queensland, studying at the University of Queensland for a Bachelor of Paramedic and Sport Science.  You wish to work as a physiotherapist in the future.

25Your counsel submitted on your behalf that in the event that I imposed a conviction for the offence now before the court that this would in part impair your capacity to achieve worthwhile employment in the future and I accept that this is so.  He further submitted that in all the circumstances of your case, a fine without conviction would be the appropriate proportionate penalty for me to impose.

26You are currently in receipt of a disability support pension in the sum of $550 per week and you are paying $260 per week rent in Brisbane.  You are therefore in a position to pay a fine, although not a significant fine, but arrangements can be made for a fine to be paid off.

27I accept that the sentence that I impose must be calculated to support your future rehabilitation because, as I have already observed, if you return to drug use your future does not look very promising. 

28In the result the sentence of the court is as follows:

29Mark George Spathis, in relation to the charge of intentionally causing injury to Shane Warren, you are convicted and sentenced to be imprisoned for 12 months.  I order that nine months of that sentence be suspended for a period of two years. 

30I declare that you have served 86 days by way of pre-sentence detention.

31But for your plea of guilty, I would have imposed a total effective term of imprisonment of 15 months and ordered that you serve nine months before becoming eligible for release on parole.

32Danielle Louise Bettenay, in relation to the charge of intentionally causing injury, you are fined the sum of $800 without conviction. 

33I do not need to make a s.6AAA declaration in the case of Bettenay because the fine is less than ten penalty units. 

34I have made the ancillary orders sought by the prosecution.

35In relation to the case of Bettenay, application is made by the prosecution for an order pursuant to s.464ZF of the Crimes Act 1958. That application is not consented to. In my opinion, having regard to the nature of the offending, the fact that Ms Bettenay does have a criminal history, albeit a limited one, and the public interest, I propose to make the order in her case.

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