Director of Public Prosecutions v Buckingham
[2024] VCC 2027
•26 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-00897
CR -22-02207
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCAS BUCKINGHAM |
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JUDGE: | HIS HONOUR JUDGE HOLDING |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2024 |
DATE OF SENTENCE: | 26 November 2024 |
CASE MAY BE CITED AS: | DPP v Buckingham |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2027 |
REASONS FOR SENTENCE
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Subject: -CRIMINAL LAW-
Catchwords: Plea of guilty – One charge of Causing serious injury recklessly – Three charges of Recklessly cause injury – One rolled up charge of Reckless conduct endangering serious injury – One rolled up charge of Threat to kill – One rolled up charge of Common law assault – One charge of Contravene family violence intervention order – 2 related summary offences – One charge of Contravene Community Corrections Order – Resentenced on two charges of Reckless conduct endangering serious injury.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Bugmy v The Queen [1990] HCA 18; R v Verdins [2007]
VSCA 62.
Sentence: 5 years’ and 11 months’ imprisonment with a non-parole
period of 3 years and 10 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. D'Arcy | Office of Public Prosecutions |
For the Accused | Ms Critchley | Emma Turnbull Lawyers |
HIS HONOUR:
1Lucas Buckingham, on 30 October 2024, you applied for a sentence indication before me in the Latrobe Valley County Court. I granted that application and on 1 November 2024 I indicated that if you pleaded guilty to the charges, I would sentence you to a total effective sentence of no greater than five years and 11 months' imprisonment with a non-parole period of three years and 10 months.
2In response to that indication, you pleaded guilty to the following charges on Indictment No. P11062712.
· Charge 1, contravention of a family violence intervention order causing harm or fear;
· Charge 2, a rolled-up charge of common assault;
· Charges 3, 4 and 5 being charges of recklessly causing injury;
· Charge 6, a rolled-up charge of reckless conduct endangering serious injury;
· Charge 7, a rolled-up charge of threat to kill; and
· Charge 8, causing serious injury recklessly.
3You have also pleaded guilty to a charge of breaching a Community Corrections Order. That order was imposed in this court by another judge on 7 March 2023 in respect of two charges of reckless conduct endangering serious injury.
4You have also pleaded guilty to two uplifted summary offences of committing an indictable offence while on bail and a charge of failing to comply with a condition of bail by contravening the family violence intervention order.
5The circumstances of your offending are outlined in an agreed prosecution opening dated 20 August 2024, and in respect of the offences for which the CCO was imposed, an opening dated 17 January 2023. Those documents should be read in conjunction with these reasons. I will summarise the circumstances of your offending.
Circumstances of Offending:
6All of your offending is related to your relationship with the same victim. In 2021 a family violence intervention order was issued against you with the intention of protecting the victim and two of her children that were born to a previous relationship. In February 22, the victim granted you written permission to reside with her, but other conditions imposed by the intervention order were still in place. Namely you were under an obligation imposed by the intervention order not to commit family violence.
7The eight charges on the abovementioned indictment were committed between 6 June 22 and 16 May 23. Overall, they represent a pattern of control, bullying, and physical abuse of the victim, sometimes in circumstances where her children would have witnessed this abuse. Overall, this is a very serious example of family violence.
8Charge 1 reflects the fact that you committed Charges 2 to 8 inclusive when you were subject to the conditions of the family violence intervention order. I make it plain that I must carefully consider the overlap between, having committed separate acts of criminality, and the fact those acts of criminality breached the intervention order. It is because of that overlap that most of the sentence imposed in respect of Charge 1 will be ordered to be served concurrently with the sentence imposed in respect of the individual charges. However, part of the sentence imposed on charge 1 will be cumulative upon the sentence imposed upon the remaining charges. The fact that you were on an intervention order at the time of this offending is a separate aspect of criminality that must be reflected in the sentence.
9Charge 2 is a rolled-up offence. It comprises a number of instances of common assault. In June 2022, you argued with the victim and reversed a car in circumstances that caused an open door of the car to hit the victim and cause her to fall to the ground. The victim was pregnant at the time.
10In April 2022, you became jealous after looking at the victim’s phone and kicked her to the back of the head while she was sitting on a bed. The blow caused a lump.
11About a week after the kick you struck the victim to the back of the head again causing a lump.
12In September 2022, you were asked to help with dinner and became angry and punched the victim to the right side of her jaw, causing slight swelling. The victim was holding your infant daughter in her arms at the time.
13In October 22, you again became angry and grabbed the victim by her hair and dragged her around. The victim tried to leave in her car, and you responded by also trying to leave in a car. The victim approached your car and you bent her finger back, causing pain and swelling.
14Between October and November 22, you pinched the victim on multiple occasions causing small bruises to her arms and legs.
15On 24 December 22, you became angry when the victim asked you to help her wrap Christmas presents. You grabbed the victim by the hair and punched her to the back of the head three to four times. The blows were especially painful as you had punched the victim to the head the previous day, that punching being the subject of Charge 5.
16On 25 December 22, you became angry when discussing issues related to Christmas and pushed the victim.
17On 11 January 23, the victim made a comment relating to you undertaking a 'Men's Behavioural Change' program. You said, 'Why do you have to bring these things up' and punched her on the cheek and to the back of the head.
18In March and April 23, you became angry on a number of occasions and pushed the victim.
19In early April 23, after an argument the previous day, the victim asked if you could speak with her about a previous argument. You became angry and kicked the victim in the leg. All of the above-described conduct, save and except the punching that related to Charge 5, comprises the offending the subject of the rolled-up Charge 2 of common assault.
20Charges 3, 4 and 5 are individual charges of recklessly causing injury.
21Charge 3 occurred in October 22 when you punched the victim to the left cheek and caused the victim to have a black eye.[1]
[1] See photos at Paragraph 11 of the prosecution opening.
22Charge 4 occurred in November 22. You got into an argument with the victim and struck her in the lower back and buttocks, grabbed her hair and struck her three to four times in the back of the head, and when the victim was hunched forward, struck her with an uppercut to the stomach causing the victim to be winded. You apologised the following day and said to the victim, 'You need to realise when to be quiet and when to leave shit alone.'
23Charge 5 occurred on 23 December 23 when you became angry, grabbed the victim by the hair and slammed her into walls. You punched the victim 10 to 15 times to the back of the head. You verbally abused her. The victim suffered a bad headache the following day and describes feeling like this was an occasion where you 'truly bashed' her.
24Charge 6 is a rolled-up charge of reckless endangerment covering two incidents, one in March 23 and the other in May 23. On both occasions in a fit of anger you choked the complainant. On the first occasion, in March 23, you squeezed the victim’s neck so hard you blocked her airway. She could not breath and the victim began to feel 'starry.' The victim felt you were going to kill her and when you eventually let her go, she vomited. In the following days the victim felt disorientated.
25The second instance of charge 6 occurred in May 23; you grabbed the victim by the throat ,pressed her against a wall and began to strangle her to the point where she could not breath. The victim managed to eye gouge you which allowed her to escape into another room.
26You later sent text messages to the victim saying, amongst other things, 'I’ll kill you, you dog.' This statement constitutes the first instance of the rolled-up Charge 7; which is a charge of threat to kill.
27On 16 May 23 you got into another argument with the victim where you called her a 'fucking bitch' and then said to her, 'stop crying or I am going to finish you off.' This constitutes the second instance of uttering a threat to kill. The victim said you should go and stay at a friend’s place. You then picked up a baseball bat which was near the front door and approached the victim. You swung the bat at the victim who put up her right arm to protect her head. The blow broke her arm causing the victim intense pain. This blow with the bat is the offending the subject of Charge 8, recklessly causing serious injury.
28The victim was treated at hospital the next day. She had to undergo surgery and has had to have a metal plate affixed inside her forearm to secure the fracture.
29The opening details part of the impact upon the victim of this injury. The victim is embarrassed by the permanent long scaring to her arm. She felt pain and stiffness for approximately six weeks. It caused her difficulty breast feeding her infant. She feels less capable in performing physical activities she could previously perform independently. She estimated her arm only functions now at 60 per cent of its previous capacity.
30This morning the victim read her impact statement to the court. It really is difficult to overstate how much trauma your offending has caused the victim. Your continued abuse has had a devastating impact.
31Not only has the victim had to cope with the physical disability of not being able to fully use her dominant arm for a considerable period of time when caring for young children, because she was breast feeding throughout this period, she felt the need to resist taking drugs to lessen the pain of her injury and treatment. She has suffered considerable pain. She was forced to relinquish some independence and rely upon support from her mother.
32Her young children witnessed some of your violence and abuse, and the victim has describes her young daughter being scared of men. She and her children suffer from nightmares. She feels embarrassed and ashamed at having suffered in this way, and this affects her ability to socialise and attend school events. She feels that the trauma of your offending may stay with her forever and compromise her ability to trust other men and form a long-lasting and stable relationship. She is grateful to the police informant for the support he has offered through the investigation and court process. She summarises some of the effects of your offending by stating:
'I have felt powerless, scared, depressed, anxious, exhausted, and overall less than human throughout the past 18 months.'
33She speaks of your offending having a devastating effect upon her self-esteem. The victim impact statement powerfully reminds the court that the psychological impact of this type of offending is often as significant or more significant than the physical abuse inflicted.
34You have also pleaded guilty to breaching the Community Corrections Order that was imposed upon you in January 2023. Tendered on the application for a sentence indication were the sentencing remarks of Judge Smallwood. There is no dispute that I should find the breach proven, you have pleaded guilty to that charge, and as a result I will re-sentence you on the original two offences for which you were placed on the CCO. That offending involved the one incident that occurred on 6 November 2021. You became angry with the victim when she was driving a motor vehicle and you were in the passenger seat. The first offence involves you in a fit of anger applying the handbrake causing the vehicle to slide and skid to a stop. The vehicle came to a stop in the middle of the street. There was other traffic on the road at the time and your plea acknowledges that by applying the handbrake you recklessly endangered other people in the car.
35The second offence occurred soon after, when you got out of the vehicle, and continued to argue with the victim. You noticed a five-litre jerry can of petrol in the front passenger footwell. You said, 'All right, you’re never going to see me again.' You then grabbed the jerry can and poured the petrol all over the roof and windscreen of the vehicle. Again, through your plea you have admitted that your actions recklessly endangered the occupants of the vehicle. At the time of these actions the victim, along with her two children, were in the car.
Personal circumstances:
36I turn to your personal circumstances.
37Your background and personal circumstances were canvassed during your application for a sentence indication. Details of your background are contained in a psychological report tendered on your behalf, as well as in your counsel's written submissions. I also heard evidence from your older brother, Jesse Buckingham.
38There is no dispute from the prosecution that your background has been bleak and riddled with family dysfunction.
39You were born in Wonthaggi to parents who were both marred by alcohol and substance abuse issues. You have an older brother, Jesse, and two older sisters from your mother's previous relationship.
40Your parents did not live together and you lived in the custody of your mother until you were 16 years old. She had several relationships with men who were abusive towards her, and at times towards you.
41Your brother gave evidence at the sentence indication that from a young age you and your siblings witnessed regular drug and alcohol abuse, repeated physical violence between your parents, and you have experienced physical and sexual abuse at the hands of your father. Your brother stated that, 'There was very little time when mum and dad weren't high.'
42You moved houses regularly when you were young and your brother gave evidence that you attended five or six primary schools and experienced a disrupted education. Your mother’s own childhood had been traumatic , and this contributed to the instability you experienced as a child. Her drug use and mental health issues worsened and she began to experience paranoia which led to her renting a home on Macleay Island; an isolated community 40 kilometres off the coast of Brisbane, where you lived with your brother and mother for 12 months. You had limited social and educational opportunities there and returned to Phillip Island around the age of 10.
43You told your psychologist that you faced multiple evictions and attended VCAT hearings regarding your housing, and circumstances where the locks on your home had been changed and you were forced into homelessness. You lived in your mother’s car for a period of time where you both slept in national parks and used local swimming pools for showers and amenities. You ultimately entered into transitional housing in Morwell before moving to commission housing in Moe where you remained until about 16 or 17 years old.
44After moving out of housing with your mother you lived with your brother and older sister for small periods. You completed Year 12 VCAL and completed a four-year cabinet-making apprenticeship before becoming a scaffolder. You have a reasonable work history and managed to remain employed for most of the time up until your remand in May of 2023.
45You have longstanding drug abuse issues that commenced when you were approximately 12. By the age of 22 you were using methamphetamine, heroin, GHB and MDMA, mushrooms and Xanax. In the past few years you have entered into a residential rehabilitation program at a facility in Gippsland and subsequently engaged with Narcotics Anonymous.
46Your brother gave evidence that your previous relationships have not involved incidents of family violence. You have a young child with the victim of this offending whom you have not seen since just prior to your remand. A 10-year family violence intervention order is currently in place to protect the complainant and her children from you. You are currently prescribed Mirtazapine daily and Suboxone injected monthly whilst on remand.
47The psychological report of Gina Cidoni tendered on your sentence indication stated your substance use disorder is in sustained remission, in a controlled environment. Ms Cidoni also diagnosed you as suffering from a post-traumatic stress disorder, bipolar spectrum disorder, and borderline personality traits. She opined that your offending was primarily driven by your long-term substance abuse which impaired your judgment and heightened your impulsivity and led to diminished ability to control your emotions. She also observed that your bipolar disorder and PTSD amplified your lack of emotional control, and that the combination of your mental health conditions drove you to a cycle of poor decision making and violent outbursts that led to the offending before this court.
48Your brother gave evidence that upon your release from prison you would be able to live with him and his partner who works in aged care.
Circumstances of mitigation:
49Your counsel submitted on your behalf that your background engaged both the principles of sentencing discussed in the High Court decision of Bugmy[2]. He submitted that both the general and specific application of those principles applied given your background. That is, in relation to the specific application of that principle, you were in many ways replicating violence and bullying that you experienced within your own family dynamic when you were growing up. Your counsel acknowledged that your offending was very serious, but submitted it was not pre-planned but instead arose in circumstances where you were ill- equipped to deal with family responsibilities due to your immaturity, and dysfunctional upbringing.
[2]Bugmy v The Queen [1990] HCA 18 (‘Bugmy’).
50He emphasised your youth and the importance of rehabilitation when sentencing young offenders. He placed considerable weight on your plea of guilty, both in terms of the utilitarian benefit that such a plea provided to the court and as a demonstration of your acceptance of responsibility for the offending. He stated, you did not want the victim to have to give evidence and this was part of your motivation to try and resolve the matter. He submitted that you accept that your relationship with the victim is over.
51Further, your counsel submitted, the delay in your case for such a young person was an additional punishment in terms of the uncertainty of your future. He relied upon a number of courses you have completed while in custody in order to address your mental health issues and ongoing drug problem. Certificates relating to these courses have been tendered before me and I take those matters into account. He submitted that your prospects of rehabilitation were good.
52Further, your counsel submitted that your psychological profile, as described in the report of psychologist Gina Cidoni, engaged Principles 1 to 5 in the case of Verdins[3].
[3]R v Verdins [2007] VSCA 62 (‘Verdins’).
53It was not in dispute between the parties that the seriousness of your offending could only lead to a sentence of imprisonment involving a head sentence and non-parole period.
Analysis:
54Mr Buckingham, I accept your counsel’s submission generally as to the importance of the fact that you are still a young man, now 25 years old and were a young offender, aged 23, at the time you committed these offences. Your rehabilitation is important, but that consideration attracts less weight in circumstances where your offending has involved repeated serious acts of domestic violence over an extended period of time. You were sentenced in January 2023, and it was made plain to you that you were obliged to stop exacting violence upon your partner. You were lawfully obliged to comply with both a CCO and an intervention order during some of the periods of time where you were bullying and assaulting your partner.
55Your action in striking your partner with a baseball bat is a serious instance of recklessly causing serious injury and your moral culpability for that offence is significant.
56Your counsel could not really dispute that Judge Smallwood was deceived as to the state of your relationship and drug use when he placed you on the Community Corrections order. The picture that was presented to him was that your relationship was stable and happy, you had been abstinent from illicit drug use for a considerable period of time, and you were treating the victim with respect and not bullying her. None of those facts were true.
57I am not punishing you because those facts were not true, but I cannot accept the submission of your counsel that because you have undertaken courses, and are still young, your prospects of rehabilitation are good. That was effectively the submission made to Judge Smallwood in January 2023. In my view, while I accept that you are making genuine efforts to become a person who does not rely upon illicit drugs and does not resort to violence when angry, I regard your prospects of rehabilitation as uncertain.
58I also made plain to your counsel during your application for a sentence indication that I did not regard Ms Cidoni’s report as evidence upon which I could find on the balance of probabilities that Principles 1,2 and 4 of Verdins were engaged. In my view the report did not provide sufficient evidence that your mental health issues diminished your moral culpability for your actions. I was prepared to accept that Principle 5 had some application in that your mental health issues are likely to make your experience of imprisonment more onerous. I also accept that you have suffered a significant injury to your hand while working in prison. When your sentence indication proceeded before me, it was apparent that you had your hand in a cast and you had suffered an injury that will make your experience of gaol more difficult. I will take these matters into consideration in moderation of your sentence.
59I accept your counsel’s submission that you have suffered a profoundly deprived background that engages the principles, both specifically and generally, as stated in Bugmy. I was impressed by your brother’s evidence, and you are lucky he is still willing to support you upon your release. I will take your deprived background into account, to some extent, in moderation of the level of culpability for your offending, but you must appreciate there is a counter-balancing consideration of protection of the community. You have been brought up in circumstances where, as a child, you have witnessed violence as a response to frustration. You appear to act in the same way. It is up to you to change your ways. If you do not, you will no doubt return to gaol. You now have serious prior convictions for family violence. It is one thing to undertake courses in custody, and that is commendable, but you must carry that resolve to change your behaviour into your life when you are ultimately released from custody.
60I indicated that to a very limited extent I was prepared to moderate the principles of general deterrence because of your mental health issues, and the likely connection between your deprived background and the resulting mental health issues described by Ms Cidoni’s report.
61I accept that your plea of guilty is associated with a degree of remorse and the utilitarian benefit of the plea is of some significance. I will moderate your sentence accordingly.
62I have reviewed comparable cases with a view to gaining some insight into what might be regarded as a 'yardstick' as to current sentencing practices. Such cases are not precedents and each case must be determined according to its own individual circumstances.
63While the delay in resolving your case has taken some time, I regard this time as not inordinate and only to be of very moderate influence upon the sentence I impose.
64I have taken into account the principle of totality I must in imposing sentence have regard to the totality of your offending and moderate to some extent the sentences imposed in respect of the individual charges so that the total effective sentence is still a proportionate and just sentence. In regard to the summary offences relating to your bail, I intend to impose a totally concurrent sentence.
65Mr Buckingham, the law requires that I sentence you to no longer than is necessary to properly reflect the purposes of sentencing. Although you are still a young man, your offending is, as I said at the outset, a serious example of family violence. The purposes of sentencing often pull in different directions. While rehabilitation of young offenders is important, and the sentence I impose upon you should not extinguish your efforts at rehabilitation, the law must protect people from this type of serious violence and abuse. The sentence imposed upon you must be a just punishment, and deter others, as well as you, from offending like this.
66Balancing the various sentencing considerations applicable in your case and taking account of all relevant considerations, the submissions and material placed before me, I have determined that you should be sentenced as follows:
67On Charge 1 of breaching the intervention order, you are convicted and sentenced to twelve months' imprisonment.
68On Charge 2, the rolled-up charge of common assault, you are convicted and sentenced to fifteen months' imprisonment
69On Charge 3, recklessly causing injury, you are convicted and sentenced to six months' imprisonment.
70On Charge 4, recklessly causing injury, you are convicted and sentenced to six months' imprisonment.
71On Charge 5, recklessly causing injury, you are convicted and sentenced to fourteen months' imprisonment.
72On Charge 6, reckless endangerment of serious injury, you are convicted and sentenced to eighteen months' imprisonment.
73On Charge 7, threat to kill, you are convicted and sentenced to eight months' imprisonment.
74On Charge 8, recklessly causing serious injury, you are convicted and sentenced to three years and six months' imprisonment.
75In respect of the charge of breaching the Community Corrections order imposed on 23 January 2023, you are convicted and sentenced to one month imprisonment.
76In respect of the original offences for which the Community Corrections Order was imposed, you are resentenced as follows:
77In respect of Charge 1, reckless endangerment relating to your application of the hand brake, you are convicted and sentenced to four months' imprisonment.
78In respect of Charge 2 relating to pouring the petrol over the vehicle, you are convicted and sentenced to six months' imprisonment.
79In respect of the two summary offences relating to committing an offence while on bail and breaching a bail condition, you are convicted and sentenced to one month imprisonment upon each charge.
80Charge 8 on the indictment is the base sentence of three years and six months.
81The following proportion of the sentences imposed on the other charges are ordered to be served cumulatively upon Charge 8 and all other sentences imposed this day.
· three months of the sentence imposed on Charge 1;
· six months of the sentence imposed on Charge 2;
· one month of the sentence imposed on Charge 3;
· one month of the sentence imposed on Charge 4;
· three months of the sentence imposed on Charge 5;
· ten months of the sentence imposed on Charge 6;
· one month of the sentence imposed on Charge 7.
82In respect of the re-sentencing for the offending for which you were placed on the CCO:
· one month of the sentence imposed for the reckless endangerment involving the handbrake is to be served cumulatively with all other sentences imposed this day;
· two months of the sentence imposed for the reckless endangerment involving the pouring of the petrol is to be served cumulatively with all other sentences imposed this day.
· The one-month sentence imposed for the breach of the CCO is also ordered to be served cumulatively upon all other sentences imposed this day.
83For the sake of clarity, the sentences imposed on the summary offences relating to bail are to be served concurrently.
84That makes a total sentence of five years and eleven months' imprisonment. I declare that you must serve a minimum of three years and ten months before becoming eligible for parole.
85Pursuant to s18(4) of the Sentencing Act1991 (Vic), I declare that the period of 638 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
86I declare according to s 6AAA of the Sentencing Act that had you not pleaded guilty to these charges, I would have sentenced you to imprisonment for a total effective sentence of eight years' imprisonment.
87I do not regard it as appropriate to indicate a non-parole period in relation to the 6AAA indication.
88I understand there is a disposal order before the court. What is that in relation to, I just can't remember. I will just ask my associate. It's in relation to an iPhone, 11 Pro Max, and one baseball bat. Any objection to that.
89MS CRITCHLEY: No, Your Honour.
90HIS HONOUR: I will make the disposal order in accordance with the document filed with the court.
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