Director of Public Prosecutions v Castillo (a pseudonym)

[2020] VCC 289

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CASTILLO (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2020
DATE OF SENTENCE:	20 March 2020
CASE MAY BE CITED AS:	DPP v Castillo (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 289

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:              Sentence — kidnapping — contravention of order intending to cause harm or fear for safety — careless driving — unlicensed driving — youthful offender — plea at earliest opportunity — history of drug and alcohol abuse — limited criminal history — denunciation — general deterrence — prospect of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic); Migration Act 1958 (Cth)
Cases Cited:              R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of 2 years with non-parole period of 1 year

Section 6AAA declaration: 3.5 years with non-parole period of 2 years and 2 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Locke	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C Oldham	Ms M Walker

HER HONOUR:

1Daniel Castillo,[1] you have pleaded guilty to one charge of kidnapping (charge 1), for which the maximum penalty is a term of imprisonment of 25 years.

[1] A pseudonym.

2You have also pleaded guilty to contravention of a family violence intervention order with the intention to cause harm or fear for safety. That is charge 2, and the maximum penalty is five years’ imprisonment.

3You have pleaded guilty to summary charges of careless driving, for which the maximum penalty is 25 penalty units for a subsequent offence, as is the case here, and unlicensed driving, for which the maximum penalty is 60 penalty units or six months’ imprisonment.

4The offence of kidnapping is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 (Vic) and therefore, pursuant to s 5(2)(H) of the Act, the Court must impose a sentence of imprisonment other than a combined sentence of imprisonment and a community correction order, unless a special reason exists under ss 5(2)(H)(a)–(e) of the Act. It was conceded by your counsel that no special reason exists and therefore you are caught by the mandatory application of s 5(2)(H).

5You have a criminal history, but it is only relevant insofar as you have prior convictions for careless driving and driving unlicensed, for which you were put on a community correction order, which was still in force when you committed the offences for which you fall to be sentenced.

6Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening upon Plea’. In brief, the circumstances of your offending were as follows. The victim of charge 1 and charge 2 is Dianna Hale.[2] Ms Hale has been your partner since 2015. You and Ms Hale have two children, Shannon[3] and Joey.[4] An interim family violence intervention order was granted by the Magistrates’ Court in 2019. Protected persons covered by the order were Ms Hale and Shannon. You were prohibited from committing family violence against a protected person, approaching or remaining within 25 m of Shannon, and going within 200 m of any place where the protected person lives, works or attends childcare.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

7The interim order was personally served on you at the Magistrates’ Court in 2019. At the filing hearing of this matter, a final intervention order was granted to 2030 with full conditions.

8At approximately 9:00pm on 25 June 2019, you picked up Ms Hale from her workplace. You were intending to go to a movie. You were driving. You have never held a driver’s licence. You and Ms Hale drove back to your uncle’s house to get a blanket. You were driving very fast, which frightened Ms Hale. Ms Hale was scared that you would crash and kill them. Ms Hale was begging you, ‘please don’t do this, don’t try to kill us tonight’.

9At a red light, Ms Hale tried to get out of the car, but you grabbed her arm and took off very fast. This is the beginning of the summary charges of unlicensed driving and careless driving.

10At about 9:15pm, a resident, Isaac Riley,[5] went for a walk with his wife. While out walking, Mr Riley heard voices, which he described as a ‘male voice which was aggressive and a female voice that sounded under distress’. Mr Riley then saw that the voices were coming from a parked car. Mr Riley stopped walking and the male, that is you, exited the vehicle. You saw that Mr Riley had stopped walking and aggressively told him to keep walking and swore at him. You then got back in the car and drove off.

[5] A pseudonym.

11Mr Riley and his wife had a conversation to the effect that they wished they had done more for the woman and that they hoped she would be okay.

12At approximately 9:30pm, you pulled the car over again on a residential street, where the argument continued. The argument was heard by nearby residents Tina Castro[6] and her daughter Claire Steele,[7] who both went to their front door to see what was happening. You were parked opposite their house.

[6] A pseudonym.

[7] A pseudonym.

13Ms Castro heard you threaten to put Ms Hale in the boot if she did not ‘shut the fuck up’. Ms Hale was screaming, ‘leave me the fuck alone’ and ‘help call the police’. Ms Castro told her daughter to call the police.

14Ms Castro then saw Ms Hale run from the car. You gave chase, scooped her up from around the waist and threw her back in the car. You punched Ms Hale twice and held her down in the car. You said, ‘now I’m going to put you in the fucking boot’, and walked to the back of the car and opened the boot.

15Ms Castro then saw Ms Hale run from the car a second time. You chased her again, grabbed her around the waist and took her back to the car. Ms Hale was kicking and punching and screaming not to be put in the boot.

16Mr Riley and his wife, who were still out walking, came across this incident. From a distance, Mr Riley saw Ms Hale run from the car. He saw you grab her and put her back in the car forcibly. Ms Hale sounded very distressed. Mr Riley wanted to help Ms Hale and quickly walked up to the car and banged on a window. You then drove off with Ms Hale in the car.

17You arrived at your mother’s house at about 10:30pm. You entered your mother’s house and indicated that you were going to take Shannon. Ms Castillo,[8] that is your mother, texted Ms Hale to ask what was happening. Ms Hale replied that she was outside and that she and you were ‘no good’. Ms Castillo then had a conversation with Ms Hale outside. Ms Hale told Ms Castillo about your driving and that she no longer wanted to be in a relationship with you.

[8] A pseudonym.

18Ms Castillo went back inside and told you that Ms Hale was going to take the car. You got angry with your mother and told her, ‘Who are you to tell me what to do? I don’t have two bosses.’ You were yelling in your mother’s face. Ms Castillo became scared and called the police. You then left in the car, leaving Ms Hale at your mother’s house.

19At 10:17pm, uniform police were tasked to attend the area regarding an alleged abduction. At 11:40pm, police attended Ms Castillo’s home in response to her call to the police.

20At approximately 10:30am on 26 June 2019, you were arrested at your uncle’s address and transported to the police station for a record of interview. You cooperated with the police during the record of interview and answered the questions put to you. You admitted that you did not have a licence and never had one; that you should not have been driving; to grabbing Ms Hale and putting her in the car when she did not want to be there; to grabbing Ms Hale by the head; and to swearing at Mr Riley. You denied that you had slapped or punched Ms Hale. You further commented that you did not believe that Ms Hale was really fearful, and that she was just making a scene.

21You pleaded guilty at a committal case conference in 2019. This is a plea at the earliest reasonable opportunity. It has saved the victim and the witnesses the trauma of giving evidence at trial and has saved the community the cost of a trial.

22Your plea has utilitarian value. You acknowledge, by virtue of your plea, your criminal responsibility for your actions. I am also prepared to accept that your plea is indicative of some remorse on your part, although you have, in your discussions with consultant psychologist, Carla Ferrari, which took place as recently as 28 January 2020, sought to minimise your actions and to blame Ms Hale for what occurred. Your remorse is qualified by your lack of insight into your offending.

23No victim impact statement has been made by Ms Hale. Ms Hale was in Court with your mother to support you at your plea and she has indicated to your counsel that, while she does not intend to resume a relationship with you, she will support your rehabilitation.

24I am mindful of the authorities which urge a cautious approach to forgiveness or support of perpetrators of family violence by their victims. Such attitudes on the part of victims of family violence are often the product of family violence or, put another way, a product of the dynamics of family violence.

25But as Mr Oldham who appeared on your behalf submitted, and Ms Locke who prosecuted agreed, some degree of reconciliation between you and Ms Hale, particularly in circumstances where you have children together, could be taken into account in my assessment of your prospects of rehabilitation.

26I will take into account that you have the support of Ms Hale, and this will motivate you to rehabilitate to have a better relationship with her and, in particular, with your children.

27I now turn to your personal circumstances. You spoke about your background and your current situation with Carla Ferrari and I refer to her report in outlining your personal circumstances.

28You were born in 1999. You were 20 years old at the time of this offending and you are presently 21 years of age. You are a youthful offender, and this is your first time in custody.

29You were born in Australia. You are a citizen of Australia and accordingly are not caught by the mandatory deportation provisions of the Migration Act 1958 (Cth).

30Your father was physically and verbally abusive to your mother. He abandoned the family when you were aged 10. Your mother became severely depressed and she in turn abandoned you and your siblings when you were aged about 12. You went to live with your grandparents.

31Both your father and your mother have reconnected with you; your father when you were around 15 years of age. This allowed you to meet and to have relationships with your new half-siblings. Your mother came back into your life when you were around 16 years of age. At this time, you had been evicted from your grandparents and you moved back in with your mother. Neither your father nor your mother could, by the time, exert authority over you, and were unable to discipline you.

32You attended various primary and secondary schools. You told Ms Ferrari you were expelled from secondary school for fighting and selling dope. It is unclear when this occurred. You attended school until year 11, but you did not complete this year. You completed year 10. You are currently completing your year 11 VCAL equivalent in custody.

33Since leaving school, you have had a number of jobs. Your employment history shows you have not been able to hold down a job for any length of time.

34You have also not had stable accommodation. You have stayed with various relatives and friends, couch surfing. You told Ms Ferrari that you did not understand the process of obtaining a rental property.

35You told Ms Ferrari that you and Ms Hale had been in an off-and-on-again relationship since you were 15 years old. You told her about your two children with Ms Hale, your distress at not seeing Shannon, and your inability to form a relationship with Joey.

36You blamed Ms Hale for problems in the relationship and attempted to rationalise the offending, telling Ms Ferrari that you were trying to calm Ms Hale down. I accept the prosecution’s submission that Ms Ferrari’s opinion that you have demonstrated good insight and reasonable judgment into your offending is in fact not supported by your comments to her.

37You reported that you suffered from anxiety and depression. Psychometric testing conducted by Ms Ferrari indicated that this was mild to moderate. At the time of her assessment, Ms Ferrari considered that your depression had improved. Ms Ferrari was also of the opinion that you had a generalised anxiety disorder.

38No reliance was placed on the application of Verdins principles by your counsel.[9] I take your mental health difficulties and your physical health difficulties — you suffer headaches and migraines — into consideration generally of the effects of imprisonment upon you.

[9] (2007) 16 VR 269.

39You have a longstanding and problematic history of both drug and alcohol abuse. You told Ms Ferrari that you had attended drug and alcohol counselling as part of the community correction order two years ago. This is not substantiated in your criminal record but, nevertheless, I accept that you did participate briefly in drug and alcohol counselling in the past. You told Ms Ferrari that you were undertaking drug and alcohol dependency counselling in custody.

40Tendered on your behalf at the plea was a bundle of certificates demonstrating that you have participated in a number of programs in custody — some involving practical training, others directed at emotional regulation, parenting and reconnecting with family.

41Ms Ferrari assessed you as low risk of reoffending based on your insight, a finding that, as I have previously stated, I reject. Ms Ferrari also relied upon your state of compliance with your current community correction order in her assessment of risk. This is in fact incorrect. Recent breach proceedings disclose that, thus far, you have not completed any of the 100 hours of community work imposed. You did not attend Community Corrections within the two days stipulated in the order and you failed to notify Corrections of a change of address or employment as required. In these circumstances, I can give no weight to Ms Ferrari’s opinion on this issue.

42I turn now to the gravity of your offending. Kidnapping is invariably a serious offence. Here, the offending was against your former partner in circumstances where you were on a community correction order and had a current family violence order in place. You are to be sentenced separately for your breach of the family violence order and therefore, being careful not to subject you to double punishment, I do not aggravate your conduct in respect of charge 1 by reference to that. However, your breach of the community correction order is an aggravating feature of this offending.

43This must have been a terrifying experience for Ms Hale, which lasted some 90 minutes. You held her against her will, punched her, and threatened to put her in the car boot. Twice she broke free and twice you grabbed her and forced her back to the car. Your violent and threatening conduct attracted the attention of concerned members of the public, who reported that Ms Hale sounded very distressed.

44I turn now to relevant sentencing principles. In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) describes the purposes, indeed the only purposes, for which a sentence may be imposed. These are: just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort.

45I must take into account the effect that your crime has had upon your victim, and I must have regard to current sentencing practices and to maximum penalties. I was taken to the sentencing statistics for the offence of kidnapping and I have had regard to that document.

46Your offending is serious. It is intolerable for people to behave in the way that you did in response to relationship breakdown or to disagreement or conflict within a relationship. Denunciation and general deterrence are important sentencing considerations. I do not regard specific deterrence as having any application, given your limited criminal history.

47In terms of your rehabilitation, I am guarded in my assessment of your prospects of rehabilitation. As I stated, you do have some remorse. You also have the support of Ms Hale and your mother, and your criminal history is limited. But on the other hand, you lack insight into your offending. I also accept the submission of the prosecution that, given your history of drug and alcohol abuse, your troubled family background and your sporadic employment history, significant rehabilitative interventions are required if indeed you are to rehabilitate.

48However, you are a youthful offender, only 21 years of age, and ultimately whatever my assessment of your prospects of rehabilitation, I must formulate a sentence that promotes your rehabilitation if possible.

49Balancing all the relevant sentencing considerations as best I can, I intend to sentence you as follows.

50On charge 1, kidnapping, you are convicted and sentenced to a term of imprisonment of one year and eight months.

51On charge 2, contravene a family violence order intending to cause harm or fear, you are convicted and sentenced to a term of imprisonment of nine months.

52On charge 3, careless driving, you are convicted and fined $200.

53On charge 4, unlicensed driving, you are convicted and sentenced to seven days’ imprisonment.

54I direct that charge 1 is the base charge and I direct that four months of the sentence on charge 2 be served cumulatively on charge 1.

55That makes a total effective sentence of two years. I am directing that you must serve one year before you are eligible for parole.

56Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three and a half years with a non-parole period of two years and two months.

57Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 268 days of the sentence I have passed upon you and I direct that this is entered into the records of the Court.

58I make no order prohibiting you from obtaining any driving permit or licence upon your release. It is in the interests of the community that you rehabilitate. Obtaining employment in the future is key to this and not being able to drive would be an impediment to this.

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