Director of Public Prosecutions v Carter

[2023] VCC 1407

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02632

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW CARTER

‑‑‑

JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	Sentence Indication Hearing 16 March 2023; Arraignment & plea heard on 22 March 2023;  Further plea on 5 July 2023; Further Plea 5 July 2023 Sentence 19 July 2023.
DATE OF SENTENCE:	19 July 2023
CASE MAY BE CITED AS:	DPP v CARTER
MEDIUM NEUTRAL CITATION:	[2023] VCC 1407

REASONS FOR SENTENCE

‑‑‑

Subject:   CRIMINAL LAW

Catchwords:  Sentence- common assault (1 rolled up charge and 1 stand alone charge), threat to kill (2 charges) and related summary offences.

Legislation Cited:                  Sentencing Act 1991

Cases Cited:Worboyes v The Queen [2021] 1 VSCA 169; Muldrock v The      

Queen [2011] HCA 39; R v Verdins [2007] VSCA 62; Pasinis v

The Queen [2014] VSCA 97

Sentence: Total effective sentence: two years and six months’ 

imprisonment. Non parole period is 657 days’ imprisonment.

S6AAA declaration: three years and six months imprisonment

with a non parole period of 2 years and 6 months.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Ms K. Kearney
For the Accused	Mr P. Bloemen	Mr M. Brennan

HER HONOUR:

Introduction

1Matthew Carter, you have pleaded guilty to the following offences:  one rolled-up charge of common assault (Charge 1) for which the maximum penalty is 5 years' imprisonment, two charges of threat to kill for which the maximum penalty is 10 years' imprisonment, a further stand-alone charge of common assault (Charge 4) for which the maximum penalty is 5 years' imprisonment.  You have also pleaded guilty to the summary offences of committing an indictable offence on bail (summary Charge 9) and contravention of a condition of bail (Summary Charge 10).  The maximum penalty for both these offences is 3 months' imprisonment.

2The agreed facts and circumstances of your offending are set out in the Prosecution Summary of Opening.  In brief terms the circumstances of your offending are as follows.

3In May 2021 you had been in a relationship with the victim Ashleigh Richter[1] for around 4 months.  On 5 May 2021 you went to her home at around 6 pm. You spent the evening watching television with Ms Richter and with Ms Richter’s housemate, Lincoln Crohn[2].  You and Ms Richter went to bed about 11 pm.  You became physically and verbally abusive to Ms Richter, accusing her of cheating on you.

[1] A pseudonym.

[2] A pseudonym.

4You slapped her two or three times across the face and headbutted her to the forehead.  You then put her in a headlock and squeezed her throat until she had trouble breathing.  Ms Richter was frightened and was unsure if she lost consciousness (part of Charge 1 – common assault).

5Ms Richter was on the floor and you put a pillow to her face and held her down.  She was trying to push you away and she heard you saying you were going to stomp her head in.

6You had a large red kitchen knife in the bedroom.  You told Ms Richter you were going to slit Mr Crohn’s throat while he slept and that she would have to hold Mr Crohn down and if she cried she would be killed as well (Charge 2 – threat to kill).

7You put the knife down and Ms Richter took it and put it in the knife block in the kitchen.  You followed her into the kitchen, took the knife from the knife block and slid it across her throat saying that it would be an 'easy death'.  You pushed her, against a wall and held the knife to her abdomen and said you were going to stab her (Charge 3 – threat to kill).

8Mr Crohn woke up when his alarm went off at around 6 am and came into the kitchen and saw you hugging Ms Richter, who was crying.  Ms Richter then went into the bathroom and vomited.  She sent Mr Crohn text messages from the bathroom asking him to call the police.

9You started banging on the bathroom door and demanded to be let in.  Ms Richter in fear opened the door.  You had a knife, but Ms Richter managed to knock it out of your hand.  You pushed her against a wall and covered her mouth with your hands (Charge 1).

10You prevented her leaving the bathroom and asked her if she was vomiting because she was pregnant and if she was cheating on you and using drugs.  Ms Richter denied these accusations.  You lit a cigarette and pushed it into her cheek, burning her face (Charge 4).

11Eventually you let Ms Richter leave the bathroom.  At around 7.20 am Mr Crohn said he had to leave for work.  Ms Richter became distressed and begged Mr Crohn not to leave.  You tried to keep her inside the house, but she was able to get outside and join Mr Crohn, who called your mother to pick you up.

12Mr Crohn took Ms Richter inside and locked the doors before he left for work.  You however managed to get in via the unlocked back door.  When you entered the house Ms Richter fled.  You chased her and prevented her climbing over a fence to escape you.  You took her back inside.  She was highly distressed and vomiting.  She started screaming and told you her family would call police if she did not answer their calls.

13It was agreed Ms Richter would drive you to Main Road Ballarat where your mother would collect you.  You were arrested at around 11.30 am on 6 May 2021 and were deemed unfit for interview.

14Ms Richter had a burn mark on her face and red marks on her shoulder and arms and cuts to her hands.  Ms Richter has made a victim impact statement in which she says she had to leave Ballarat and return to live with her family.  She says she suffers sleeplessness and flashbacks and has had to see counsellors.  She suffers stress, anxiety and PTSD.

15Your offending is a very serious example of intimate partner violence.  It lasted over a number of hours during which you subjected Ms Richter to a number of assaults which included slapping, choking and headbutting her, holding a pillow over her face and burning her cheek with a lit cigarette.

16None of these assaults caused serious injury or even injury but your behaviour was cruel, controlling, and vicious. The offences of threat to kill are also serious examples of this offence.  You made threats in graphic terms, and on the second occasion holding a knife against Ms Richter’s throat and sliding it back and forth.  She must have been terrified, as you no doubt intended.  She was in her own home where she was entitled to feel safe.

17You had only been released on bail on 15 April 2021 and this is an aggravating circumstance of your offending.  Your offending was also in breach of a community correction order.

18You have a relevant criminal record.  You have appearances in the adult jurisdiction going back to August 2017.  You have convictions for assault, contravention of family violence orders, theft and other dishonesty offences, driving and drugs.  You received a sentence of 5 months' imprisonment as part of an aggregate sentence in February 2019 for offences of aggravated burglary (person present) and persistent contravention of a family violence order in conjunction with other offences.

19In 2019 you were sentenced to 9 months' imprisonment as part of an aggregate sentence for offences including aggravated burglary (person present).  Your criminal history discloses you have regularly breached family violence orders and have regularly breached bail conditions.  You have been afforded five community correction orders between November 2017 and February 2020.  Three of these were varied and two cancelled.  You have  contravened orders by failing to abide by the conditions of the order and reoffending.

20Your first correction order was imposed at the Ballarat Magistrates' Court and had conditions of treatment and rehabilitation to address your drug use, mental health assessment and general programs to reduce reoffending.

21You breached this order by further offending and in August 2018 this order was varied and you were convicted to a 24-month correction order, again with conditions to address your drug use, mental health and to address your risk of reoffending.  You breached this order with further offending and in February 2019 this order was varied and you were sentenced to a correction order for a further 2 years upon your release from custody.

22You breached this order and in December 2019 the order was varied and you were sentenced to a further order of 24 months upon your release from custody.  This time it was noted you had a recent diagnosis of schizophrenia and a justice plan was attached.

23Your justice plan commenced on 18 February 2020 and a review dated 2 March 2021 says your engagement was sporadic.  You were remanded for further offences and upon your release on bail, did not engage.  The writer noted your ongoing drug use while on the order.  Variation or cancellation was recommended.  I assume that this has occurred.

24On 11 January 2022 in the Ballarat Magistrates' Court you were convicted and sentenced to 200 days' imprisonment for, in conjunction with other offending, family violence offending, which was a charge of intentionally causing injury and which involved you biting the cheek of the victim and grabbing her by the neck, causing minor injury.

25This offending occurred on 29 June 2020 and you were on bail for this offending when you committed the offences against Ms Richter, for which you now fall to be sentenced.  Your criminal record therefore discloses a history of family violence offending and a complete inability to comply with court orders designed to assist you to live offence free.

26I turn now to consider your personal circumstances and in doing so I refer to the submissions made on your behalf by your counsel, Mr Bloemen, and to a number of reports which were tendered at your plea.

27These reports were as follows:  a report of Dr Aaron Cunningham, psychologist, dated 7 December 2018; three reports of Dr Adam Deacon, consultant psychiatrist, dated 23 December 2022, 3 June 2022 and 27 January 2023; a Forensicare report of Dr Gregory Lysenko, psychiatry registrar, and Dr Sobia Kahn, consultant forensic psychiatrist, dated 7 December 2022.

28You were born in February 1998 and you are therefore 25‑years‑old and you were 23 when you committed this offending.  You were born in Ballarat and raised by your mother alone.  You father died prior to your birth.  You have an older sister.

29You had a difficult relationship with your mother growing up and you assaulted her when you were in your late teens and she sustained a subarachnoid haemorrhage.  Whatever your difficulties then, your mother and your sister remain supportive of you and they have written letters to the court to this effect and they were tendered on your behalf, as well as a letter from a close family friend, Stephen Pattie.

30You attended school up until year 10.  You report being bullied and you report that you struggled reading and writing but were not placed into special education classes.

31You commenced a plastering apprenticeship after school.  You completed two years of your apprenticeship but did not finish it.  Drugs were by this stage already your priority.  You had used cannabis and were drinking alcohol since you were in school, and you started using methamphetamine at 16.

32You have been using MDMA since you were 17.  You were using cannabis and methylamphetamine daily before you were remanded in May 2021.  After you left your apprenticeship you worked for around one year as a renderer.  You have been on the Disability Support Pension since around 2020.  

33There were as already outlined a number of reports tendered addressing your cognitive functioning and your mental health.  I will not set out in any great detail the content of those reports but the conclusions to be drawn from these reports are as follows.

34First, you have a full scale IQ of 68, consistent with mild intellectual disability.

35Secondly, you now have a confirmed diagnosis of schizophrenia.

36Thirdly, you have had episodes of psychosis secondary to polysubstance abuse.  You were first admitted to an acute psychiatric unit in 2017 due to drug induced psychosis.  You had a further admission in December 2020.  In April 2021 you were taking methamphetamine and refusing to take your prescribed medication.  You disengaged from mental health services at this time.

37Fourthly, you have consistently reported that you committed the offences against Ms Richter while drug affected and you have further consistently reported that you have no other memory of your offending.

38Fifthly, in custody since May 2021, you have been treated with antipsychotic medication.  You have been non-compliant with your antipsychotic medication while in custody.  You have continued to have active symptoms of schizophrenia although a review in November 2022 noted an improvement in your mental state with attenuation of the auditory hallucinations you were experiencing and improved clarity of thinking and communication.

39On the relationship between your intellectual disability, your mental health and your offending Dr Deacon gives the opinion:

Mr Carter's self-reported amnesia for the offences, assumed to be valid, most likely relates to the use of methamphetamine on attention and memory processing.  Mr Carter's mild intellectual disability is likely to be an additional contributing factor.  Mr Carter's capacity to think rationally and exercise reasonable judgement during the period of the offending was likely to have been significantly impaired.  This impairment was significantly determined by his methamphetamine use, but in the context of an untreated schizophrenia illness.

40On the experience and effects of custody given your mental health Dr Deacon gives the opinion:

Mr Carter has experienced significant challenges in custody.  He was actively psychotic for a long period in 2022 whilst he was not complying with prescribed antipsychotic medication.  Since he has resumed antipsychotic medication and is receiving more assertive psychiatric management in a supported mental health unit, his mental health has stabilised.  He has experienced and is likely to continue to experience prison more onerously than a person without his mental illness and mild intellectual disability.  He is currently mentally stable and coping reasonably well whilst being managed in the St Paul's Unit in Port Phillip Prison.  His mental illness could foreseeably become destabilised due to the inherent stressors of prison.

41And these opinions were given in Dr Deacon's report of 27 January 2023.

Submissions of the parties

42I turn now to the submissions of the parties, and I begin with the submissions of the defence. In mitigation of sentence the following matters were relied upon.

43First, your plea of guilty.  There was a sentence indication hearing in this matter on 16 March 2023 at which I gave the indication that if you were to plead to the current offences, I would sentence you to a term of imprisonment with a non-parole period not in excess of time served, or to time served in combination with a correction order.  I could only give the indication in these terms because given your poor history with corrections, I required a report from them in order to reach any concluded position.

44After this indication you pleaded guilty to the current indictment 22 March 2023 and to the summary charges today.  Mr Bloemen submitted in accordance with the authority of Worboyes[3] that you are entitled to a significant mitigation of sentence by virtue of your plea.  He submitted your intellectual disability moderated your moral culpability and the application of general deterrence in accordance with the authority of Muldrock[4].

[3]Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)

[4]Muldrock v The Queen [2011] HCA 39 (“Muldrock”)

45He submitted that, given your intellectual disability and your mental illness and in accordance with the reports tendered and especially the conclusions in the final report of Dr Deacon, all six limbs of Verdins[5] were engaged in sentencing you.  He acknowledged the role of your drug use in your offending but submitted your use of drugs could not be disengaged from your cognitive limitations and your mental illness.

[5]R v Verdins [2007] VSCA 62 (“Verdins”)

46He submitted you are a young adult offender, still only 25, and relied on the authorities which emphasise the importance rehabilitation in the sentencing exercise.  He relied upon the ongoing difficult conditions in custody.  He submitted that you have now been in custody for over two years.  Two hundred days of your time in custody was reckoned as time served on your subsequent conviction but should remain within my contemplation in the application of the principle of totality.

47He acknowledged your history of non-compliance with court orders.  He acknowledged the conclusions of the assessment report I ordered which concluded you were unsuitable to participate on a further correction order, but Mr Bloemen referred me to the mental health assessment which concluded your mental health was not a barrier to a correction order.

48He urged me to sentence you to time served in conjunction with a community correction order with a justice plan.  He submitted this was the best sentencing option to try and foster your rehabilitation, which in turn was the best way to achieve community protection.

49Mr Pickering on behalf of the prosecution submitted a term of imprisonment with a non-parole period was the only appropriate sentence.  He submitted your offending was a serious example of intimate partner violence and the authorities are clear that general deterrence and protection of victims are the predominant sentencing considerations.

50He submitted that although fostering your rehabilitation was an important matter, it was not the only objective of sentencing and the principles of general and specific deterrence, denunciation and community protection had to be given proper expression in the sentence I impose.

51He relied on the current correction assessment that you were unsuitable for a further order not just because of your history of failure but also according to the assessor you had very little insight into your offending, you remained a high risk of reoffending and that you failed to acknowledge the seriousness of your offending or its effects on the victim.

Conclusions and sentences

52I turn now to my conclusions.  Your offending was a serious example of intimate partner violence.  I have addressed its objective gravity earlier in these reasons.  It clearly warrants the imposition of a term of imprisonment involving a period of actual custody, so much is not in dispute.  The question for me is whether I should sentence you to a term of imprisonment consisting of a head sentence with a non-parole period, or to time served in conjunction with a correction order with a justice plan.

53In order to determine this, I ordered an assessment by corrections.  You were assessed as unsuitable for reasons already discussed but to repeat because of your history of failure on correction orders and your lack of insight into your behaviour and because of the assessor's conclusion that you remained a high risk of reoffending.

54Your plea of guilty entitles you to a significant mitigatory discount of sentence.  It has significant utilitarian value, especially in the context of the ongoing delays in the administration of criminal justice in this State caused by the COVID-19 pandemic.  I give it the full mitigatory weight which attaches to it as discussed in the case of Worboyes.

55I am unable to conclude your plea is indicative of any remorse on your part.  You have not expressed remorse in any real or insightful way in any of your interactions with the clinicians who have prepared reports nor in the recent corrections report.  In all likelihood, your lack of insight is attributable to your intellectual disability.  I accept that your moral culpability is moderated because of your intellectual disability.

56I am also prepared to find there is some engagement of Verdins moderating your moral culpability.  Your offending was fuelled by your drug consumption, but you have been addicted from an early age and I am mindful of the authorities allowing for some mitigation of moral culpability where drug addiction commences at an early age and is connected with mental health difficulties and criminal offending.  Furthermore, I accept that Verdins principles are engaged to moderate the principles of general and specific deterrence although these sentencing considerations are not eliminated.

57As the authorities have made abundantly clear, male violence directed at women will not be tolerated and it is the duty of the court to deter would be perpetrators and protect victims.  The passage in Pasinis advances the joint reasons of the Court of Appeal which stated the key to protecting victims of family violence:

Lies in deterring the violent conducted by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.[6]

[6]Pasinis v The Queen [2014] VSCA 97 (“Pasinis”)

58I accept on the basis of Dr Deacon's report that Verdins limbs 5 and 6 are engaged in sentencing you.  That is, I accept prison is a more difficult place for you because of your mental illness and intellectual disability and although your mental health has stabilised in custody, nevertheless the stressors of incarceration are such that it is at risk of worsening.

59You remain a high risk of reoffending.  I make this finding on the basis of your criminal record, your lack of any real remorse or insight and your low cognitive functioning.  Community protection is an important sentencing consideration in sentencing you.

60I take into account the ongoing difficult conditions in prison, and I take into account the principles of totality and parsimony.  I take into account the assessor's conclusions in the corrections assessment report.

61Taking into account all matters I am required to under the Sentencing Act and matters personal to you, I intend to sentence you to a term of imprisonment consisting of a head sentence with a non-parole period in accordance with the sentencing indication of time served.

62I am of the view that this is the only appropriate sentence to reflect the gravity of your offending and to give proper expression to all the various sentencing principles.  I do not believe a correction order in combination with a term of imprisonment would be sufficiently punitive in all the circumstances.

63Furthermore, I do not believe such a disposition would address your risk of reoffending, which in my view remains high, and I do not believe such an order is in your own best interests.  In my view, such an order would set you up for failure and would simply prolong your involvement in the criminal justice system and your punishment for this offending.  Having said all that, I intend to sentence you as follows.  You can remain seated, Mr Carter.

64You are convicted on all charges, indictable and summary.

65On Charge 1 you are sentenced to 24 months' imprisonment.

66On Charge 2 you are sentenced to 15 months' imprisonment.

67On Charge 3 you are sentenced to 18 months' imprisonment.

68On Charge 4 you are sentenced to 18' months' imprisonment.

69On each of the summary charges you are sentenced to one month imprisonment.

70Charge 1 is the base charge.  I direct 3 months on charges 3 and 4 be served cumulatively upon charge 1 and upon each other.  That makes a total effective sentence of 2 years and 6 months' imprisonment.

71I direct you serve a non-parole period of 657 days. You have served 657 days of the sentence I have imposed, and I direct that be entered into the records of the court. Pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to 3 years and 6 months with a non‑parole of 2 years and 6 months.