Director of Public Prosecutions v Carter

[2017] VCC 1910

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00747

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW CARTER

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2017
CASE MAY BE CITED AS:	DPP v Carter
MEDIUM NEUTRAL CITATION:	[2017] VCC 1910

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Conwell
For the Accused	Mr D. Sala

Pages 1 - 12

 

 

HIS HONOUR:

1Matthew Carter, you been found guilty by the jury at your trial of

·Making a threat to kill; this offence carries a maximum penalty of ten years' imprisonment;  

·Common assault; this offence carries a maximum penalty of five years' imprisonment; and 

·Aggravated burglary; this offence carries a maximum penalty of 25 years' imprisonment.

2After trial you pleaded guilty to the summary offence of committing an indictable offence whilst on bail.  This offence carries a maximum of 3 months' imprisonment.

3You admitted your prior criminal history.  I shall return to that later in these remarks.

4The facts on which you were convicted at trial may be briefly stated.

5In November 2016, you were residing at your mothers place.  In the early hours of 23 November 2016, you were at home.  You had been drinking alcohol through the course of the night and you were clearly affected.  You were home alone and talking to yourself, but you were making a great deal of noise.  It appears that you were talking about neighbours placing their rubbish bins on your mothers nature strip and showing a lack of respect to her.

6Next door to your place on the corner of Cook Avenue and Batman Avenue is the family of Melissa Allen, Adam Reardon, Joshua Reardon, and his fiancée Shonnay Chuhaj.  Joshua Reardon and Ms Chuhaj lived in a caravan in the backyard of the premises, and immediately next to the fence adjoining your two properties.

7About 3:45 am, the noise you were making was keeping your neighbours in the caravan awake.  After discussing the issue at length, Mr Joshua Reardon went over to your property and knocked on the door of your house.  When you answered, he asked you to keep quiet.  

8You threw a punch at Mr Reardon and missed.  He grabbed you in a bear hug and you both landed on the ground. Mr Reardon’s parents and fiancé came over, and broke up the scuffle and told Mr Reardon to get up and get back to the house.  You ran into your house.

9The Reardon/Allen party walked off and entered the backyard through their back gate, only a few metres from the front of your house.  As the last of them were entering the gate, you pushed through the gate and passed Melissa Allen.  

10At this point you were carrying a kitchen knife which was about 30 centimetres in length.  You repeatedly yelled at Joshua Reardon that you were going to "Chop his head off and use it as a bowling ball"; this was the basis for
Charge 1, on which you were found guilty.

11Your actions caused tremendous fear to Joshua Reardon and his family. Shonnay Chuhaj cried as she gave her evidence, and was clearly distressed in recounting the events.  Joshua Reardon spoke on a number of occasions of his genuine fear that you would stab him.  Melissa Allen was clearly still angry, upset, and agitated in recounting your conduct on that night.

12As you made your way past Melissa Allen to where Joshua Reardon was standing, Shonnay Chuhaj moved between you and her fiancé.  In an effort to get past her, you pulled her hair and pushed her in the chin; this was Charge 2, common assault.

13Adam Reardon stopped you from advancing further.  He turned you around and took you to the gate.  At this point, the police arrived.  Out of respect for their neighbour your mother, the Reardons did not press to have you charged with any offence.  The police took the knife from you and you were allowed to return home.

14Fortunately, after the police attended on this occasion, Joshua Reardon and Shonnay Chuhaj decided to move inside the house to sleep.  They took their bedding from the caravan and moved inside, leaving the caravan empty.

15Sometime after 6:40 am, you went back to the Reardon/Allen premises.  On this second occasion, you were armed with a small claw hammer.  Melissa Allen saw you enter the caravan.  You were still screaming abuse to Joshua Reardon; threatening to kill him and, that you would "Take his head off".

16All four witnesses were in the rear area of the house and saw you come out of the caravan holding the hammer.  You still threatened to kill Mr Reardon as you did so.

17A further confrontation took place in the backyard.  Eventually, however, a neighbour saw what was going on, and grabbed the hammer from your hand as he came up behind you.  You confronted Adam Reardon.  Mr Reardon punched due to the head/face region, and it appears you were knocked momentarily unconscious.  

18The police again attended and this time you were arrested and taken into custody.

19After a number of hours, the police conducted a record of interview with you. You denied the offending, and blamed Joshua Reardon for misunderstanding what you had been saying to yourself in the house at 3 am.  You also blamed him for starting the whole incident, by initially attacking you at the front door of your home.  It is apparent that your account was rejected by the jury.

20You were remanded in custody after this offending, and spent 113 days in custody before you were released on bail on 16 March 2017.

21With the jury’s verdict, I remanded you in custody, and you have now been in custody for a total of 186 days' in pre-sentence detention, excluding today.  This period of pre-sentence detention will be reckoned as already served.

Analysis of your offending

22Your offending on this night was indeed serious.  There is no doubt that you caused fear and concern to the whole family next door, and not just to Joshua Reardon who was the principal target of your actions.

23Nevertheless, Mr Nibbs on behalf of the Crown at trial, submitted that there ought be a measure of concurrency between the offences as the incident should be seen as an elongated single incident, rather than separate matters.

24It was submitted, and I agree, that the aggravated burglary is the most serious of these offences.  It was committed under the influence of alcohol, a weapon was involved, and there was a desire and intention to accost Joshua Reardon.

25Whilst Mr Reardon was not in the van at the time that you entered, armed with a hammer and expressing a desire to kill him, this does not make a significant difference to the seriousness of the offending.

26The effect of your offending on the family can be gauged from the victim impact statement made by Joshua Reardon’s mother, Melissa Allen.  She states that she is still suffering from anxiety, is on medication, and is getting counselling. Your actions had an effect on her younger children who still remain scared.

27Cases in the Court of Appeal such as Hogarth, Meyers and the recent case of Hi, have emphasised that this type of offending must be met by stern punishment.  It is apparent that your conduct was serious and the sentence I impose must reflect the principles of general deterrence and denunciation of your conduct.

Personal circumstances

28I turn now to your personal circumstances.  You are 37 years of age, soon to be 38, and were born in December 1979.  You are the youngest of three children.  In the report prepared on court order by the principal consultant psychologist at Forensicare, Professor Michael Daffern, your childhood was described as "bad".  Your relationship with your parents was described as unsupportive.

29It appears that you were raised in an environment of violence and domestic abuse.  You felt totally unsupported by your mother, even when your father injured you so badly that you had to wear a back support as a young child.  You have not seen your father in over 17 years.  You have had no contact with one sibling for 20 years, and with the other for 10 years.

30Although you were living at your mother’s house at the time of this offending, you describe your current relationship with her as "terrible".  You argued constantly in each other’s company.

31Similarly, as a child, you had no respite at school.  You described your school experience as "hell".  You were expelled from school in Year 8.  You made no friends, and you had no particular relationship with your teachers.

32Your parents separated when you were 12 years old.  Following their separation and your expulsion from school, you went to live with your paternal grandmother.  By the age of 14, you were essentially homeless.

33By 18, you moved to the Deer Park Caravan Park, where you met your former partner.  You went on to have four children with her.  The relationship ended in 2006.  

34Tragically, one of your children died in 2008.  You had not seen your daughter for 18 months prior to her death.

35It is apparent from the events of the night of 23 November 2016, and from Professor Daffern’s report, that you are still plagued by thoughts about the circumstances of your daughter’s death.  You are fixated with the idea that people blame you for her death.

36On the night of 23 November, you were certain that your neighbours thought this, and yet they knew nothing about your daughter and very little about you. You told Professor Daffern that whilst you have been on remand, you believe that other prisoners consider you to be responsible for your daughter's death.

37Professor Daffern considered the question whether you suffer from
post-traumatic stress disorder as a consequence of your daughter’s death.  He concluded that the symptoms of depression that you described, including sleeping problems, impaired concentration, and hypervigilance for threats are symptoms in common with post-traumatic stress disorder.

38He considered that your hypervigilance for threats is long-standing and may be better described as a personality trait.  Professor Daffern did not express a final opinion on whether or not you suffer from PTSD, but he does consider that you have suffered from long-standing mental concerns, dating from childhood.  Of significance are your problematic interpersonal relationships, your
long-standing feelings of isolation, and your persistent low mood.

39It does not seem that you have had any or much contact with your other children for many years now.  You do not appear to have re-partnered since your relationship ended in 2006.

40Professor Daffern states that you have a long history of substance abuse and dependence.  It seems, however, that you have not had any particular problem with drug abuse for a considerable number of years.

41It is apparent that you were intoxicated on the night of 23 November.  You told Professor Daffern that your previous offending typically occurred when you were intoxicated.  Nevertheless, you have not ever been treated for alcohol abuse.

42In recent years, you have had work as a truck driver.  The reference from your employer and the submissions made by your counsel Mr Sala, indicate that you are a good and reliable employee.  You worked in the job until your trial.  In fact, your employer provided you with accommodation on your release on bail in March 2017.

43You have an offer of work and accommodation on your release.  This will be an important factor (as well as the way in which you conduct yourself whilst in custody) if you are to be released on parole, after the expiration of the
non-parole period that I will set.

44You have a considerable number of prior offences, dating back to October 2000.  Between 2000 and 2007, you were convicted of unlawful assault on two occasions and damaging property on two occasions.  

45You did not appear in court again until 2015, when you made five appearances in the Sunshine Magistrates' Court, and one in the Melbourne County Court on appeal.

46Much of your offending in 2015 related to contravention of family violence orders, but there remains a worrying number of matters for violence and anger management type of offending.

47Your offending on 23 November 2016 displays a similar issue of anger management.  Whilst it does not provide the full excuse or explanation for your offending, I do note, however, that your offending must be seen against the background of your long-standing mental health issues.

48Your time in custody has not been easy.  You are not able to build relationships with your peers, and as a consequence, you are quite isolated.  Moreover, your time is made more fearful as you perceive other prisoners consider you to be responsible for your daughter’s death.  I do not know whether this is objectively true or not; that is, that they have that perception.  Nevertheless, I consider that your perception at least makes your time in custody more difficult.

49Although Mr Sala conceded that none of the Verdins principles were enlivened, he nevertheless submitted that I should moderate the sentence I impose upon you, because of the fact that you are socially isolated, and because you perceive you are targeted by other prisoners.  All of this, of course, takes place against a background of long-standing mental health issues.

50Mr Nibbs on behalf of the Crown, also submitted that these factors ought to be taken into account, in determining the appropriate sentence to impose upon you.

51Mr Sala conceded there was no opportunity for discount on your sentence, and there was no indication of remorse, given that the trial was run and lost.  I considered that nevertheless, some regard must be had to your long-standing mental difficulties.  Again, so much was conceded by the Crown.

52Moreover, Mr Sala submitted that there are some protective factors in place which militate towards your prospects for rehabilitation being positive.  You do have prospects of employment again with Mr Ferrara and you have the offer of a place to live. 

53You did not offend whilst on bail from March 2017 before trial, and your prior criminal history is relatively limited in its seriousness.

54From Professor Daffern’s report, it seems that your prospects for rehabilitation depend at least to some extent upon you getting assistance for your mental health issues, and also a determination of whether your use of alcohol is a problem which needs to be addressed.

55In these circumstances, I have decided that the overall sentence which I will impose should provide the opportunity for a reasonably lengthy period of parole.  So much was submitted by the Crown, and by your counsel.

56You must work hard whilst in custody to ensure that the opportunity of parole is provided to you.  If you do so, and if parole is indeed granted, then the period of supervision under the guidance and with the support of a parole officer, will provide structure to your release back into the community.  This should provide you with the assistance you require to reintegrate back into the community and to reduce the likelihood of your reoffending.

57I will now impose my sentence.  On the charge of threat to kill, you are convicted and sentenced to nine months' imprisonment. 

58On the charge of common assault, you are convicted and sentenced to one months' imprisonment. 

59On the charge of aggravated burglary, you are convicted and sentenced to two years' and nine months' imprisonment.

60On the summary charge of committing an offence whilst on bail, you are convicted and sentenced to one months' imprisonment.

61I order that three months of the sentence on Charge 1, is served cumulatively on the third charge of aggravated burglary. 

62This results in a total effective sentence of three years' imprisonment.  I order that you serve 23 months' before you are eligible for parole.

63I declare that the period of 186 days' pre-sentence detention, excluding today, is reckoned as already served and shall be deducted from your sentence.

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