Director of Public Prosecutions v Busuttil

[2014] VCC 1538

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01670

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEON BUSUTTIL

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2014
DATE OF SENTENCE:	12 September 2014
CASE MAY BE CITED AS:	DPP v Busuttil
MEDIUM NEUTRAL CITATION:	[2014] VCC 1538

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:             Plea of guilty; stalking; criminal damage; possess ammunition without licence

Legislation Cited:     Sentencing Act 1991

Sentence:CCO with conviction for 15 months; $100 fine without conviction on Charge 3

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr N. Rogers SC	OPP
For the Accused	Ms L. Torres	Revill & Papa Lawyers

HER HONOUR:

1Leon John Busuttil, you have pleaded guilty to one charge of stalking, one charge of criminal damage and one charge of possessing cartridge ammunition without a licence.  You have also admitted a prior criminal history to which I shall refer later.

2The maximum penalty for stalking is ten years' imprisonment.  For criminal damage it is ten years' imprisonment and for possessing ammunition, 40 penalty units. You will be receiving nowhere near those maximum penalties in this case but I must, and do, take them into account as an indication of the seriousness of the offences.

3The first two charges relate to your behaviour in relation to a woman called Jana Rea.  You had met her in 2012 and carried on a relationship which at times was sexual, but not as a romantic relationship, and she had other regular boyfriends.  You did, at times, visit each other's homes, and she had met your parents, but the relationship was volatile and at times aggressive.  At times police had been called, and after such an episode in August 2012 she obtained an intervention order against you, but I am told that the contact between you continued much as before despite that order being made.

4Between 28 October 2012 and 7 March 2013 you telephoned her in excess of 1,000 times.  Between 12 February and 7 March 2013 you sent her more than 200 text messages, apparently to several phones she had, many of which messages were abusive and threatening and contained very derogatory language.  In a number of them you were demanding money from her.

5Over the period of those telephone calls, that is from 28 October 2012 to 7 March 2013, there were occasions when she sent you text messages; in other words not all the contact was one sided.  She thought that you had become infatuated with her but was nevertheless, at times, willing to have contact with you.

6By your plea of guilty you accept that your contacts by telephone and text were excessive and amounted to stalking of her.

7Of the times when she was willing to have contact with you, one was on 7 March 2013.  She had asked you to assist her, and had arranged to pick you up at your home address and drove you to her home, in order to have you assist in the assembly of some beds. 

8Apparently assembling of the beds commenced in an upstairs room, but an argument started between you concerning her boyfriend at the time, and she told you to fix the beds and then leave. You did not leave and the argument became heated.  A neighbour called out through an open window that she was going to call the police and Ms Rea called back to call the police.  At some stage Ms Rea went downstairs to the living area.  The arguing continued, she screamed at you to leave or she was going to call the police, and then she grabbed her home phone from a kitchen drawer and plugged it into the wall outlet.  She continued yelling at you, and was crying that she was going to call the police. You then ripped the phone out of the wall and this caused damage to the outlet.  This is the subject of Charge 2 of criminal damage.

9Ms Rea then opened her front door and ran to her neighbour's house.  Police arrived and you were arrested at her home.  You were interviewed, charged and remained in custody at that stage.

10A week later a warrant was executed at your home address.  During the search police located what is said to be one round of ammunition on your bedside table.  You are not licensed under the Firearms Act to possess ammunition so that gives rise to Charge 3.

11After your arrest on 7 March 2013 you gave a record of interview to police in which you spoke at length.  You stated, amongst other things, that you had been in a sexual relationship with the complainant since you met her in 2012.  You said you were at her house earlier that day to assist her to assemble beds.  You admitted that you and she had argued but said that during the course of that she had struck you in the face.  You admitted to ripping the phone out of the wall outlet when she attempted to call police.

12The most serious of these charges is clearly Charge 1 of stalking.  I am told that you concede in relation to that charge that the extent of contact by telephone and by text was excessive, that the texts included vulgar and abusive content, and that you are deeply ashamed of that and deeply ashamed that your family have now heard of that content.

13I am told that this was due to you losing control of your emotions in the context of a relationship with Ms Rea that had been volatile.  As I have said, she described you as infatuated with her.  There was clearly some acknowledged violence in your interaction with her because as part of the agreed facts it is said that Ms Rea brought you to her home that day to assist after you had told one of her ex-partners that you would not behave aggressively.

14I am told that since this incident there has not been any further contact between you and Ms Rea, and it would seem that that is for the best, and you should have no further contact with her.  There is no victim impact statement from her.

15Stalking is a serious offence, and with the proliferation of means of electronic communication, can now be very invasive.  You sent 200 text messages to her, although the other part of the conduct is the phone calls, which are perhaps more old fashioned, but nevertheless at that type of frequency are also very invasive.

16Your stalking conduct relates to a period of more than four months.  On the other hand it seems clear that Ms Rea was willing to have some contact with you over that time by sending you some text messages, and indeed asking you to her home on 7 March, so I take into account that it was not a wholly one sided period of contact, however the contact was clearly excessive and the content of the text messages you sent was abusive and vulgar and demanded money.  I am told that was because you had each loaned, and then owed money to the other, but you were angry at the time that she owed you money and she, at the time, was earning good money and you were unemployed.  This does not excuse your aggression and threats or your inability to control your anger, as shown in the incident of 7 March, but overall I do not regard it as at as high or menacing a level as some stalking conduct.  Your sentence will reflect that.

17The damage to the telephone outlet was clearly an unacceptable outburst of violence.  It came during what was obviously a very heated argument and I regard it in that context as at a relatively low level of seriousness for this offence.

18I am told that the reason for you having ammunition in your custody was that the object involved was in fact a single bullet which you had found on a block of land you own and which you had kept because you liked it.  Although its possession without a licence was illegal I do not regard that offence as of particular seriousness. Indeed I regard it as at a low level of seriousness for such an offence as there is nothing to indicate that it was a bullet possessed in relation to being used in a gun, so nothing to indicate that it posed a threat to any person.

19I must take into account that you do have a criminal history.  You do not come before the court with an unblemished record but your prior offences are relatively isolated and do not indicate that you have an entrenched pattern of violent behaviour or of general offending.

20There are three relevant charges for me to take into account, being breaches of intervention orders.  In May 2000 you were found guilty of breaching an intervention order and placed on a good behaviour bond.  In November 2000 you were again found to have breached an intervention order and that time were fined with a conviction.  I am told that both of these occasions related to disputes arising from the breakup of a seven year relationship with your son's mother and disputes about access to your son, who was very young at that time.  These occurred more than 14 years ago and I am told that the relationship is now cooperative and friendly in sharing your son's parenting.

21You have a further conviction for breaching an intervention order in June 2007- that is some seven years later.  I am told that that was after the breakup of another relationship that had lasted some years, and resulted from attempts by you to recover furniture from your former shared home. Again, it does not reflect well on your ability to control your temper, or to make rational judgments when angry or frustrated in emotionally charged situations. But it was your last offending before the matters that bring you before me, and I note that you successfully completed a Community Based Order which had required you to attend and participate in an accredited men's behaviour program.

22As I have said, because these prior offences are relevant I must take them into account, but I do take into account that they occurred respectively seven and 14 years ago, and it would seem that you were able to adjust and control your reactions to anger and frustration in the intervening periods, and also that you had previously completed an appropriate program to assist you to do that.

23With this background I consider that specific deterrence has a role in your sentence.  That means that part of your role of your sentence should beto impress upon you that repeating such behaviour will attract real punishment, specifically if you lose control and vent your anger or frustration against women with whom you have had relationships.

24In my view the prospect of rehabilitation to try to prevent you re-offending in this type of manner is also an important factor in your sentence, and for reasons which I shall explain, particularly so at the stage you are now at.

25You have pleaded guilty to these charges and received some credit in your sentence for doing so.  This was not until after a disputed committal hearing, but I accept that at that stage there was a much more serious charge involved.  Your plea of guilty saves the community the time and cost of a disputed trial, has saved further time and stress to witnesses, and reflects an acknowledgement by you that your conduct was wrong.  I also accept that it is consistent with you feeling ashamed and showing some remorse for your behaviour.

26I turn now to your personal circumstances.  You are now aged 44.  I am told that you grew up as the third child of a family from Malta.  You were said to have struggled at school, and that may be because of learning difficulties which were not diagnosed or analysed at the time.  This seems to be the opinion of those who have examined you more recently, and in particular psychologist Dr Paul Grech, who describes features in you of an adult attention deficit disorder.

27You left school in Year 10 but by that time had apparently “wagged” a lot.  You had in fact obtained some casual employment at a meatworks and were working rather than attending school.  You were described in the assessment of Dr Grech as being functionally illiterate.  I am not convinced that that is as it is described, having read the compositions of your text messages, and also having read portions of the record of interview you made with police which shows that you were not only extremely willing to talk at length, but able to express yourself, if not always with correct grammar or polite language.

28Nevertheless I accept from neuropsychologist Ms Anderson, as I will explain later, her description of how you may have been, in a sense, covering up some of the lack of understanding of words, and in particular in your reading and verbal explanations, and from Dr Grech's reports that overall you have struggled to understand some of the tests that they administered and perhaps cover up in your general conduct the fact that you are not understanding as much of what you hear and read as people might think.

29I am told that on leaving school you worked for some five years at a meatworks, then for some six years at a company where you were cleaning out large tanks.  I am told that you then were offered the opportunity to return to the Meatworks to be trained as a fitter and turner and to work on machinery, and that you did that and worked there for approximately 12 more years.  You then left to join a friend working at a chicken factory, and worked there for about a year.

30By 2012 you had been working hard and continuously for many years, and decided to take a year off.  You had purchased a motorbike and wanted to work on a rural property that you own.  It was during that period, I am told, that you met Ms Rea, and you were still not working when the events the subject of Charges 1 and 2 occurred.

31As to other parts of your personal life, I am told that you have had three long term relationships over the years.  You have a son now in his teens from one of those.  As I have said, it was with his mother that there were incidents leading to an intervention order and two breaches of it in the year 2000.  I am told that this was after the breakup of what had been a seven year relationship, when your son was a baby, and that the disputes arose about access with him.  I am also told that there is now a cooperative and friendly arrangement whereby your son and his mother live near you and you share in his parenting.

32I have also mentioned that there was a second relationship of some years that also ended with disputes and led to another intervention order and a breach of it, but those are, in the context, isolated incidents.

33I read in reports about you that one of the features of your interactions with Ms Rea is that it reflected you being otherwise somewhat lonely, having difficulty in establishing a new relationship, and that you became obsessed with having a relationship with her through that aspect of loneliness.

34There is reference in the neuropsychological report of Ms Anderson to you having a history of illicit substance use.  I am told that you did use cannabis in the past, and there is one prior offence some 18 years ago in which you were fined without conviction for using that drug.  I am told that you have not used it for some time, and that although you tried what is called “ice” a couple of times with Ms Rea you did not like it, and that that ceased quite quickly.

35You apparently drink alcohol moderately now, and I am told that there are no ongoing issues for you with excessive alcohol or drug use.  There is no mention of that being part of the treatment or features of your background through Dr Grech and there is nothing to suggest that either alcohol or the effect of drugs was relevant at the time of the offending.

36As I have said, you underwent a neuropsychological assessment by Ms Laura Anderson in May 2013.  I have only her second report but accept there was a two stage assessment, a week apart, and that this report is the latter part of that and drew the two together.  She was initially asked to assess you in relation to a suspected intellectual disability, and that assessment indicated that you were functioning within what is regarded as intellectually disabled ranges for some skills, and low average range on others.  She found this consistent with a verbal learning disorder after a second session assessing higher functioning.

37She reported that your overall performance indicates that cognitively you are functioning mainly within intellectually disabled ranges, especially in verbal abilities including word knowledge, reading, comprehension and abstract verbal reasoning skills, indicating a verbal learning disorder.  She noted that you may present as more verbally competent and understanding of verbal information than is actually the case.  She analyses your functioning more extensively but I will not go into further detail here.

38I accept that you have been assessed as showing intellectual disability which will have lowered your ability to read cues, assess situations and adjust your behavioural reactions when feeling angry or frustrated, and that in that sense that underlying situation has contributed to the offending, at least under Charges 1 and 2. In my view it does warrant some moderation, in your case, of the need for general deterrence, a factor in your sentence.  That means that because of those underlying limitations in your ability to react to and understand and adjust to situations, you are not a good example to use for other people by imposing a sentence to send that message to others that serious punishment will result from offending of this type.

39After you were arrested on Charges 1 and 2 you were held in custody for eight days.  I accept that will have been a salutary lesson for you as your first time in custody, and it is certainly some punishment that you have already undergone for these offences.  I take it into account in relation to the totality of punishment which will be imposed on you for these offences.

40You were bailed after eight days to what is called the CISP program, during which for four months you received supervision and intensive management of your underlying problems and circumstances.  Through that program you saw a general practitioner for referral to a psychologist.  The first referral was not successful but you subsequently saw Dr Paul Grech and I have read two reports from him indicating your engagement in counselling with him commencing from July 2013 until early 2014.  He conducted several psychological tests and also engaged in therapy with you.  He found you cooperative, and by his later report considered that you had made progress in learning how to cope with anxiety and with situations which had previously resulted in inappropriate reactions, especially to anger.

41His testing indicated levels of depression but particularly of anxiety.  Some of those were interrelated with your anxiety about the court cases hanging over you.  He considered you showed features of adult attention deficit hyperactivity disorder and recommended referral to a psychiatrist for confirmatory diagnosis, and also possibly for prescription of medication which he thought was warranted.

42He described extensive features of your presentation which go to his considering you probably have adult attention deficit hyperactivity disorder.  Those features of your presentation he considered rendered you susceptible to the offending in Charges 1 and 2.  In particular he noted impulsiveness without thinking through comments or actions before they are said and done, irritability building up and then exploding, your becoming angry and aggressive, your being inflexible and rigid in thinking, and being hyperactive and restless.  Dr Grech's opinion is that those features of your condition rendered you susceptible to making the large number of phone calls and feeling unable to stop yourself.  It would also seem they are likely to have contributed to the damaging of the phone socket in an outburst of anger.

43Dr Grech considered that you have benefitted from identifying what triggers your anger and in developing different ways of recognising and defusing your anger when it is aroused.  He also recommends that your sentence directs you to continue to engage in psychological therapy.  I cannot directly impose that as a condition, but I certainly will impose a condition on a Community Corrections Order that you be assessed, and if thought appropriate, treated for these conditions, and it is to be hoped that that can be arranged through Community Corrections.

44It seems to me that the opinion of Dr Grech as to those features of your underlying condition making you susceptible to the type of offending that occurred, together with what I have already mentioned of Ms Anderson's opinion that you operate in an intellectually disabled spectrum cognitively, are features that reduce the importance in your sentence for general deterrence.

45I am told that as a result of a previous breach of the intervention order relating to Ms Rea, that occurred before you were arrested for the offence under Charge 2, you were sentenced by the Magistrates' Court last October to a Community Corrections Order for nine months.  I am told you successfully completed that and specifically that you participated in a men's behavioural change program which you found particularly helpful.

46You are currently working and I have confirmation through a reference from your employer and another friend and part time employer of that.  I accept that you have a long and sustained work history which had ceased at the time of this offending, but that you are back working full time and that is sustained work and occupies you much of the time.

47I have also noted the reference from your sister which seems to reflect that you have had long term problems of which she has been aware, but for which she recognises that recent treatment has been most helpful and you are responding well to it.  I accept this as her genuine opinion and consistent with the other information which all tends to show that with some long-term intellectual and possible underlying behavioural problems, you have now been directed into helpful programs and treatment to help you learn to recognise when problems in your reactions, particularly anger, might arise, and learn how to avoid those occasions occurring or to avoid the anger resulting in violence.

48I was urged to sentence you to a Community Corrections Order to continue to address your underlying problems, and to continue and promote your rehabilitation, given what has occurred over the last 18 months or so.  The prosecution agreed that that would be a sentence within the appropriate range.

49I consider it is the appropriate form of sentence in this case, taking into account the circumstances and nature of the offences, in particular Charges 1 and 2, and the steps taken over the period since to address the causes of your offending and reinforce the current stability in your life.  I add that I accept that you have good support from family, your parents and sister.  I believe you have two siblings. I have mentioned the stability you have currently with full time work.

50I do consider that some unpaid community work should be a condition of the order to act as a penalty.  I take into account that you have apparently had a recent injury but that in due course you should be fit to perform some type of unpaid community work as felt appropriate, and I am not going to impose a very great amount of that but rather to impose it as a penalty. I am going to impose other conditions and hope they will be able to result in some further programs and treatment. I recognise that they may not result in you being given further treatment on programs, given the relatively low risk that you have been reported to have of re-offending. 

51I requested a pre-sentence report and you have been assessed as suitable for a Community Corrections Order. As I have said you were assessed as at low risk of further offending and I note that that took into account the treatment you have so far undergone.  It would be suitable, in my view, if either a repeat of the men's behaviour change program, or some part of that, to supplement and reinforce what you have already achieved through that, could be arranged.  I also note in that regard the recommendations of Ms Anderson in her neuropsychological assessment that reinforcement and repetition of programs would be of assistance in addressing your behavioural change and treatment, and Dr Grech reinforced that.

52Stand up now, please. Leon John Busuttil, on Charge 1 of stalking you are convicted and sentenced to a Community Corrections Order to last for 15 months with conditions for 80 hours of unpaid community work, supervision, that you undergo assessment and treatment as directed for mental health issues, and further for any program as directed to reduce the chance of re-offending.

53In addition all usual terms of a Community Corrections Order apply.  I know they have been explained to you previously and that you have indeed undergone and completed a Community Corrections Order not too long ago but I shall repeat those usual terms.

54First, you are to report within two clear working days to a Community Corrections office.  It is safest to do that by 4 pm next Tuesday - Tuesday 16 September, and the nearest office to you apparently is Werribee Community Corrections office at 87 Synnot Street, Werribee.  The address will be on the order.

55You are to report any change in home address or in your place of employment to Community Corrections officers within two days of that occurring.  You are to allow visits from Community Corrections officers and to obey all lawful instructions or directions from them.  You are not to leave Victoria without prior permission from Community Corrections officers. And most importantly you are not to commit any offence that could be punished by imprisonment during the period of that order, and that period is 15 months.

56You have probably had it explained before but offences that could be punished by imprisonment -  it does not mean that they necessarily will be - include all offences of violence to any person, or by not complying with any intervention order if any intervention order is still active, I am not sure if it is.  Now do you understand the conditions I have imposed and the usual terms?

57OFFENDER:  Yep.

58HER HONOUR:  Do you agree to comply with that order?

59OFFENDER:  Yes.

60HER HONOUR:  All right.  I must also tell you that if you breach that order either by committing any other offence that could be punished by imprisonment or by not complying with the conditions, then you could be brought back to this court in front of me and depending on the circumstances you could be re-sentenced for these offences.  Do you understand that?

61OFFENDER:  Yes I do.

62HER HONOUR:  All right.  Now on Charge 2, that is of criminal damage, you are convicted and are placed on the same Community Corrections Order I have just imposed.

63On Charge 3 without conviction you are fined $100; that is for possession of the bullet.

64For the purposes of s.6AAA of the Sentencing Act I must state what your sentence would have been if you had not pleaded guilty but been found guilty by a jury of these charges and all other circumstances had been the same. If that had occurred I would have imposed a total effective sentence of six months' imprisonment, part of which I would have suspended  - I would have had the power to do that as these were offences that occurred before the abolition of suspended sentences for them.  I would have partially suspended that sentence, requiring two months to be served immediately and the other four months suspended for 15 months.  There would have been eight days declared as pre-sentence detention.

65Now I think that is all that is needed but take a seat Mr Busuttil.  The order will have to be prepared but - that is the Community Corrections Order to be signed - but let me first check something about Charge 2. Whether this should be done as an aggregate sentence for Charges 1 and 2 or whether it is sufficient to state on Charge 2 that there is a sentence for the same Community Corrections Order.  I am open to hear submissions.

66To simply impose the identical order is totally out of proportion on Charge 2.  The most significant part of the sentence is on Charge 1, in my view, for reasons I hope I have explained.  I regard stalking as the most serious of the charges here.

67Now I am open to whether on Charge 2 I should separately impose a sentence or whether it is sufficient to make it aggregate with Charge .  Given that I was the judge overturned by the Court of Appeal many years ago for imposing the first aggregate sentence in this court,  I do not do so without agreement.

68MS TORRES:  I would - without having thought about it at length my gut feeling is an aggregate would be more appropriate because if you impose a 15 month order on the criminal damage it means the criminal damage is worth 15 months and that's not what Your Honour intended.  So ‑ ‑ ‑ 

69HER HONOUR:  Well that's what I wanted to avoid.  I hope I've made clear I don't put it at that level of seriousness.

70MS TORRES:  No, that's right.  So I would've thought an aggregate but not ‑ ‑ ‑ 

71DR ROGERS:  I agree with that.

72HER HONOUR:  Right.  In terms of aggregate I did consider this.  In one sense the victim is the same person and the events that's the criminal damage is really the end of the period that ‑ ‑ ‑ 

73DR ROGERS:  Yes it really is the one - it is ‑ ‑ ‑ 

74HER HONOUR:  So it does interrelate with that.

75DR ROGERS:  Yes, it is really the one transaction.

76HER HONOUR:  All right.  If both sides agree that it's appropriate to call it an - impose an aggregate sentence for those two in that case it will be in the form that there's a sentence imposed for Charges 1 and 2 as an aggregate and that's the Community Corrections Order.

77MS TORRES:  Yes, if Your Honour pleases.

78HER HONOUR:  This will no doubt upset CLMS, and therefore my associate, but there's no easy way.  I raise it because on no basis should Charge 2 look as if it's receiving a 15 month Community Corrections Order.

79MS TORRES:  And that's how it would look on the records so to avoid that I agree Your Honour.

80HER HONOUR: All right. We'll have to work out how to do that. We just have to give this time I'm afraid because the documentation of the Community Corrections Order only gets produced through the actual order and so it has to be finished before the other and just adjusted to use the word aggregate, and apparently it has to state the pre-sentence detention, although I'm not sure why because I mentioned it in relation to the s.6AAA where it belongs.

81MS TORRES:  While we're waiting, for your information Your Honour his sister Rosie was able to attend court this morning ‑ ‑ ‑ 

82HER HONOUR:  Right.

83MS TORRES:  ‑ ‑ ‑ to support him.  She's putting money in the meter now ‑ ‑ ‑ 

84HER HONOUR:  She's - she can ‑ ‑ ‑ 

85MS TORRES:  ‑ ‑ ‑ but she has been here all morning, back from overseas.

86HER HONOUR:  All right, thank you.  The order, as tends to happen, won't - I know we're not allowed to omit a space which means that it creeps over onto a second page for no apparent reason but that's how the (indistinct) has to be.  I'll have that shown to counsel and check that it's what I've explained.  All right are you comfortable with explaining it to your client and asking him to sign please?

87MS TORRES:  Yes I am Your Honour.

88HER HONOUR:  Yes.

89MS TORRES:  I can do that now.

90HER HONOUR:  Thank you.  Now I sign the second page.  It should be all on one page but it won't, they just take the space out.  All right Mr Busuttil I'll sign that order now and copies will be made and you'll have a copy of that to take away with you.  What I'll actually do is sign both pages because the way - it's repeated the line twice.  Now in relation to the fine do you want me to put a stay on it?

91MS TORRES:  Your Honour I ‑ ‑ ‑ 

92HER HONOUR:  I think there's automatically ‑ ‑ ‑ 

93MS TORRES:  One month.

94HER HONOUR:  ‑ ‑ ‑ one month.

95MS TORRES:  That's right, and that'll be sufficient.

96HER HONOUR:  That'll be all right?  And there weren't any Ancillary Orders sought?

97DR ROGERS:  No Your Honour.

98HER HONOUR:  No?  What happened to the bullet?

99DR ROGERS:  I think it's already gone.

100HER HONOUR:  All right.  There's a copy of an order to be given to each side and Mr Busuttil if you have any queries about that order it's best to ask about them rather than assume you know what it is, don't risk doing the wrong thing.  But the first point is to go by four o'clock next Tuesday to the Werribee Community Corrections office to report.  All right that is the end of my matters for today so could we adjourn til Monday please?

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