Director of Public Prosecutions v Blaby
[2016] VCC 669
•20 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-01688
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN BLABY |
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| JUDGE: | HIS HONOUR JUDGE MULLALEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 20 May 2016 |
| CASE MAY BE CITED AS: | DPP v Blaby |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 669 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | Office of Public Prosecutions |
| For the Offender | Mr D. Gray | Mike Waldell Solicitors |
HIS HONOUR:
1Justin Blaby, you can remain seated. On 3 March and 22 April on your application I indicated to you that should you plead guilty to an indictment I would not sentence you to a term of imprisonment. You did plead guilty to the indictment that was filed. Just bear with me for a moment. Can I have that indictment? That indictment included one charge of aggravated burglary and two charges of common assault.
2I outlined the facts that established your offending during the course of that sentence indication application or I did so in these terms generally. You are now a 36 year old man. You have been in a relationship with a younger woman, Ms Hussey. The relationship ended in May 2014 but in the early hours of 15 February 2015 the female victim came home after a night out. She was in the company of one of your younger brothers. You had earlier in the day made contact or tried to make contact with her. She believed at the time that you were intoxicated and indicated to you that you should leave her alone.
3Unfortunately for her and for you, you did not leave her alone. Sometime after 3.00 am you went to her house and you were waiting when she came home. I accept that you had no idea that your younger brother was likely to be with the female victim. Having seen them together you lost your self-control. The victims drove into the garage. You tried to get into the garage yourself. You then knocked on the front door and called out. You were told to go. You did not. You tried to force the door. You went to the rear of the premises and tried another door before finally breaking through a garage door.
4As can be seen you were persistent and your anger was deep and maintained throughout this. Once inside you assaulted the woman and fought with your brother. Ultimately you were got out of the house by your brother. The police had been called and arrived at a point you were still outside the premises and you were arrested, first having capsicum spray used on you.
5In sentencing I must consider the gravity of the offending and the connected issues of the weight to be given to denunciation and deterrence. These two sentencing purposes are paramount in offending of this kind. The female victim was entitled to feel safe in her home. Your attack diminished her sense of security. She speaks of that in her victim impact statement, which I have had due regard to. She was entitled to be with who she wanted to be with. Angry, intoxicated, jealous men who resort to violence when an ex-partner forms any sort of new relationship, these men must be punished for their cowardly violence. The community is tired of such behaviour directed at women who are simply getting on with their lives. As said, denunciation and deterrence are the primary sentencing purposes in crimes of violence directed towards women by ex-partners.
6Usually the message of deterrence and the need for denunciation would lead to a sentence of imprisonment. But, of course, imprisonment is not inevitable. The circumstances, especially the personal circumstances of an accused, can mean that in rare cases the community based sentencing is one that is just and appropriate.
7The Court of Appeal in the important guideline decision of Boulton has given guidance to sentencing judges including that the fundamental proposition that the sentencing landscape in this state has changed dramatically and sentencing judges need, in a sense, to recalibrate. Gaol is the sentence of last resort. Given the availability of longer and more tightly Community Corrections Orders many crimes such as aggravated burglary that, in the past, would have attracted mid-range gaol terms can be properly dealt with the imposition of a Community Corrections Order.
8In this case on the one hand is the gravity of your crimes and your criminal history which has involved violence although it is important to understand that those prior matters are six years and 16 years ago.
9In mitigation there is powerful evidence of your general rehabilitation in the past seven years or thereabouts since you have had the custody of your five children. Your efforts as a single parent having impressed a number of friends and your father, who all see you as a responsible and caring parent. In a sense, this crime was a loss of control, unseen in you for many years.
10Of great importance is that you are now in a steady relationship with a woman herself who is a single mother of three young children. She is pregnant with your child. Her health is not good at all. She has facial or skull tumours and is undergoing significant treatment. Though some of that is moderated because of the pregnancy. You are a key support to her and her children. She has encouraged you to abstain from drinking, a matter that is central to your rehabilitation.
11Your children would be at risk of going into state care, most likely separate state care for each of them or most of them and your partner and her child would be gravely affected if you were gaoled.
12You have completely ended any contact with the female victim. You have no relationship with your brother, the male victim. You have solid supports from your father and others who have known you well and have provided testimonials to me. Presently you are well occupied with your parenting. You have had concrete and labouring work in the part and hope to return to that. Your prospects of reform, especially now that you are with Ms Forbes, are good. You have shown a capacity to do community orders in the past.
13In my view the mitigatory matters and particularly that relating to what would happen to your children if you were imprisoned, reaches the high standard of exceptional circumstances. That is, it is exceptional that I take into account the impact on third parties by reason of a sentence imposed upon an offender. The children going into state care and being separate from each other in these circumstances would be a very harsh thing for them. In my view there is sufficient mitigation to permit the unusual course of a sentence that does not involve any immediate incarceration. This was the indication I gave to you at the time that the sentence indication was made.
14The Community Corrections Order that I intend to impose will be onerous, will require you to do significant unpaid work and have ongoing treatment for problems with alcohol and mental health. It is no soft option, Mr Blaby. Should you not complete everything that you are required to complete then you will return back to me and there will be no further chances. Mr Blaby, can you please stand.
15I intend to impose an aggregate term of imprisonment for the aggravated burglary and the common assault. You should understand that the crime of aggravated burglary has a maximum penalty of 25 years and in this circumstances it is the gravest of the offences that you committed. Nonetheless the violence that you committed was serious.
16For committing the crimes of aggravated burglary and the common assaults on the two victims, you are convicted and placed on a three year Community Corrections Order. You will be required to do 250 hours of unpaid work and have testing and treatment for alcohol abuse, for mental health difficulties and you will be under the supervision of a Community Corrections officer.
17A document will be produced shortly and if you sign it I will then sign it, it will bring the matter to an end. Is there anything further required?
18MR FISHER: No, Your Honour.
19MR GRAY: No, Your Honour.
20HIS HONOUR: I will indicate to you, Mr Blaby, and to the community that my reading of the Sentencing Act oddly does not require me to indicate to you what you would have received had you pleaded not guilty and been found guilty of theses offences, because I have not imposed a sentence of imprisonment or a fine of any moment, I have imposed a very significant Community Corrections Order.
21But given that there was a sentence indication and given the seriousness of the offending and the exceptional circumstances in your case that are mitigatory, I make it clear to you that had you pleaded not guilty and been found guilty, which in my assessment was inevitable, you would have been imprisoned for two years with a non-parole period of one.
22MR FISHER: As Your Honour pleases.
23MR GRAY: Your Honour pleases.
24HIS HONOUR: Are there others orders you seek? I cannot remember.
25MR GRAY: Just excuse me.
26HIS HONOUR: Mr Gray, do you know?
27MR GRAY: I can't recall that an application was made for a 464.
28HIS HONOUR: Thank you. So you can't say no or yes?
29MR FISHER: I'm just looking for a moment ‑ ‑ ‑
30HIS HONOUR: You are looking ‑ ‑ ‑
31MR FISHER: I'm sorry.
32HIS HONOUR: ‑ ‑ ‑ as far as you are concerned.
33MR FISHER: I'm sorry?
34HIS HONOUR: You look to see whether there is. Mr Gray doesn't remember. Nothing was mentioned. All right, it's produced, the Community Corrections Order. You can be seated, Mr Blaby. Produce the Community Corrections Order document and it'll move us forward, thank you. Mr Fisher as soon as you need to go off where, just go.
35MR FISHER: Thank you.
36HIS HONOUR: Mr Blaby, the Community Corrections Order are in these terms. These conditions apply to everyone who is on a Community Corrections Order and they certainly apply to you. I emphasise the first of these.
37You must not commit another offence for which you can be imprisoned during the time the order is in force. So any offence almost that you can think of that if you commit that offence, it does not matter if the magistrate does not impose imprisonment, you will come back before me and there will be no second chance. So the way through is do not commit any further offences, certainly within the next three years.
38You must comply with any obligation requirement under the Sentencing Regulations. I am told that means taking photographs to ensure that you were the person who is at the right place at the right time and they can manage the order.
39You must report to and receive visits from the Office of Corrections. You must report to the Community Corrections centre at Ballarat. That is the Community Corrections Services at 206 Mare Street in Ballarat within two clear working days of the order starting. So that is Monday or Tuesday if you do not go today, do you follow?
40You must let the Community Corrections officers know, within two clear working days, if you change your address or your job. You must not leave Victoria without getting permission got do so. You must obey all lawful instructions.
41Now the conditions that apply just to you are these:
42You have got to do 250 hours of unpaid community work over the three years. Now I have a sense that you have had a good working history and that you are occupied with other things at the moment but you have to do the 250 hours. You do it each day you are required and you stay there until it is finished. Just get it done.
43You must under the supervision of a Community Corrections officer and you must undergo assessment and treatment for alcohol abuse and dependency and you must undergo any mental health assessments and psychological treatment that you are directed to do by the Office of Corrections.
44If you sign that and I will sign it and it will bring the matter to an end. Mr Gray, do you want to take that down?
45MR GRAY: Of course, Your Honour.
46HIS HONOUR: Is there an order that you seek?
47MR FISHER: Yes. It's a forensic procedure. I've just been discussing with my learned friend.
48HIS HONOUR: Yes, all right. Well do the Community Corrections Order please, Mr Gray.
49MR GRAY: Yes.
50HIS HONOUR: Hand that up to my - you don't have it?
51MR FISHER: I don't have it and the reason is it was a sentence indication so I think my instructor - even though it's been flagged ‑ ‑ ‑
52HIS HONOUR: Yes, we'll get to it.
53MR FISHER: ‑ ‑ ‑ it hasn't been prepared.
54HIS HONOUR: Thank you.
55MR GRAY: Could I - I'll just seek instructions on that, Your Honour. It's signed, Your Honour.
56HIS HONOUR: Thank you.
57MR GRAY: In relation - excuse me, Your Honour.
58HIS HONOUR: So you wish to make an application, you don't have the documentation but you apply for an order pursuant to s.464ZF that there be - is it retention or a taking?
59MR FISHER: A taking.
60HIS HONOUR: A taking, all right thank you.
61MR FISHER: Yes.
62HIS HONOUR: Do you have anything to say?
63MR GRAY: No, Your Honour.
64HIS HONOUR: Thank you. I intend to make the order. I will sign it when the papers are presented to me. Mr Blaby, the reason - the prosecution have made application that you undergo a forensic procedure which, in the ordinary event, would be the scraping from your mouth such that your DNA can be ultimately extracted and put on a database.
65I have considered the application and I intend to grant it. The reasons for doing so is the seriousness of the offending, your prior history and it's in the interests of justice that such an application is granted. I will find the documents in due course. They will be forwarded to you.
66MR GRAY: As Your Honour pleases.
67MR FISHER: As Your Honour pleases.
68HIS HONOUR: You need to understand this, if I can explain it as best I can in simple terms. That after 28 days have passed a window opens up of a further 28 days and within that t28 day period you have got to go down to the police station at Ballarat and undergo the procedure. So 28 days pass so if there is any appeal that that can be done. Then the window opens, as it were, go down the police station, get it sorted and if they - they are authorised to use reasonable force if you do not cooperate. So just cooperate with it. I note that you say that you do not stand in the way. So that documentation will be forwarded to your solicitors. Is that the process, Mr Gray?
69MR GRAY: My understanding is, Your Honour, there's a document which is given to him normally but you can't do it ‑ ‑ ‑
70HIS HONOUR: Well it is not here. They have not got it.
71MR GRAY: ‑ ‑ ‑ because there's no application.
72HIS HONOUR: So I will send it to your solicitors.
73MR GRAY: That would be appropriate, Your Honour.
74HIS HONOUR: So - well we will, won't we? The prosecution will send it to your solicitors. I'll sign it, I'll send it back, they'll send it to your solicitors but don't, for a minute, overlook it because if he doesn't do it, because he hasn't go the documents, someone will have to explain it.
75MR GRAY: Well I wonder if the documents could be sent to him, Your Honour, it would be easier.
76HIS HONOUR: Don't even - I'm not - the court is not sending documents to an accused person.
77MR GRAY: No, no the ‑ ‑ ‑
78HIS HONOUR: Thank you.
79MR GRAY: Whatever is the normal process should be done, yes.
80HIS HONOUR: Solicitors will play the role that they play and I do not need to go back over this case in particular, Mr Gray, where I was taken aback from time to time at the - how you were left with not a lot to go on for an application, for a serious application, before this court. So let them get the documents from the Crown and give them to Mr Blaby.
81MR GRAY: Yes, Your Honour.
82MR FISHER: As Your Honour pleases.
83HIS HONOUR: Thank you. So we can give you the - he can get directly now the copy of the Community Corrections Order which he has to comply with, reporting within two days. You are free to go once you have got this document, Mr Fisher.
84MR FISHER: I'm grateful.
85HIS HONOUR: Mr Taafe and Ms Burnett's outside. I will just stand down and Mr Hall can be put in the dock.
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