Director of Public Prosecutions v Cattanach
[2023] VCC 357
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR 22-01664
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE CATTANACH |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 7 March 2023 |
DATE OF SENTENCE: | 8 March 2023 |
CASE MAY BE CITED AS: | DPP v Cattanach |
MEDIUM NEUTRAL CITATION: | [2023] VCC 357 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
For the Accused | Mr G. Chisholm | Stephen Peterson Lawyers |
HIS HONOUR:
1Jake Cattanach, you have pleaded guilty to one charge of armed robbery, one charge of make threat to kill, one charge of contravention of a family violence intervention order on an indictment, and three uplifted summary matters of assault, aggravated cruelty to an animal and driving whilst disqualified. Those crimes carry maximum penalties of 25 years, 10 years, two years, three months', two years, six months respectively.
2You are now 30 years of age. You have pleaded guilty to what would appear to be a settled indictment. You must get the benefit of that, but other than your plea of guilty, there is no evidence of remorse whatsoever in front of me. That does not aggravate the situation, it just simply makes it very clear, that it is clear from the materials, you have virtually no insight into your offending and I take that no further.
3You clearly have to get the utilitarian benefit of the plea of guilty. Your parents were not put through the ordeal of a trial and being cross-examined, though I point out what would have been put to them is anybody's guess.
4But in any event, you do get the benefit of having pleaded in the time of Worboyes and there must be a noticeable benefit given for that plea of guilty and I certainly do that. I also take into account the fact that you have now been on remand for 427 days, that that period of time has been during the time of COVID and you have been put in lockdowns and all sorts of things and I take into account that that's been much more difficult for you and made it more difficult to do courses. Obviously the authorities work on management days. That has got nothing to do with me, but I certainly take it into account in this situation.
5On Charge 2, you are to be sentenced as a serious violent offender. I am aware that must be cumulative unless otherwise ordered, and that community protection becomes a principal sentencing purpose. I interpolate that in your situation that is the case, in any event, and the Crown do not seek a disproportionate sentence. In these circumstances, I will be so ordering otherwise, because questions of totality, I think, demand it.
6You do have very, very significant prior convictions indeed. They go for a period of time, having gone back to around about 2014. On my calculations, there might be one or two out of it, I do not think so, but it might be.
7You have been gaoled on seven separate occasions for crimes of violence, all of those involving, from what I can work out, breaches of intervention orders. You are about to be sentenced again, so in the last eight years you will have been given eight gaol sentences for family violence and related offending.
8Your priors include weapons, threats to kill, obviously from the fact that you are a serious violent offender. It is a bleak criminal history indeed, and gives one absolutely no confidence in what you are going to do with the rest of your life.
9In any event, as will be clear from the summary which I will give in a moment, the offending is very serious in my view. In the normal course of events, calls for the application of general and specific deterrence as well as denunciation and of course, appropriate punishment.
10You, as I have said, were 30 years of age at the time and were residing at Main Road, Gormandale. Your parents resided at the same address. They had been away on holidays and on this particular night, were sleeping in the van that, as I understand, they had been away in.
11You have a significant history of family violence, as I have pointed out, and there have been intervention orders against you over the years which you have clearly breached.
12In any event, on 5 September 2020, a final family violence intervention order was issued in respect of you that you not commit any family violence against a protected person or damage any property of the protected person. Interestingly, the protected person here was in fact your mother.
13On 1 January at 4.15 am, Mr Kyal and you self-attended at Main Road in Gormandale. I accept that you had been drinking heavily, but that does not assist you in this situation. Your father, who had heard you returning home got up and went into the house to see what was going on. Approximately 15 minutes after, Mr Kyal left the premises by himself in his vehicle. You were now inside the house. You were standing at the kitchen bench and appeared intoxicated, and I accept that you were.
14You have asked for the car keys to your father's Toyota Hilux. He refused and told you to go bed. You instantly became enraged. You picked up a wooden chopping block off the kitchen bench and swung at it his head. He managed to block it with his arm. You then started swinging several punches with a few of them connecting to your father's face. He observed that you had picked up a knife from the kitchen bench and were holding it with you. You continued to demand the car keys and he continued to refuse. You walked over to the CCTV hard drive and pulled the cords out of the back of the TV unit. Clearly you had the wherewithal to do that, no matter how intoxicated you may have been. You walked back up to your father and again demanded the car keys. He again refused. You then punched him to the head and he fell to the ground. That is part of the summary matter of assault.
15You walked outside the house and your father followed you. You continued to ask for the car keys. You then punched him to the right side of his head, connecting to his right ear, again causing him to fall to the ground. Part of the summary charge of assault.
16Whilst this was happening, your mother was terrified and was crouching down hiding and calling Triple 0. The terror that this violence must have caused her is hard to imagine.
17In any event, you walked to the door of their caravan or van, and you grabbed the family dog by the collar. Whether that dog trusted you or not, I do not know. In any event, that was your mother's dog. You were holding a knife in your hand and you said to your father,
'I'll give you 20 seconds or I'll stab your dog.'
18He started to plead with you. You started to count up to 20. You reached 20 and then stabbed the dog multiple times. That is Charge 3, of contravening a family violence intervention order. It also involves, though there is separate charges clearly, the charge of aggravated cruelty to an animal. You stabbed the dog at least 13 times in the thorax and back as was identified by a veterinarian later on. You then said to your father:
'I'll give you 15 seconds or you'll be next if you don't give me the car keys.'
19Whether you intended to stab him or not I do not know, but your father certainly thought you were going to. He was terrified. He took the car keys and gave them to you. As you walked towards the car you said to him:
'If you ring the police and I go to gaol, I'll kill you.'
20That gives rise to Charge 2 of threat to kill which of course has just been done in the context of him watching you stab the dog. The dog was euthanised at the vets when they tried to treat it.
21In any event as just been indicated to me this morning, you were ultimately arrested. You made a no comment record of interview. The offending is almost incomprehensible in terms of the violence and the cruelty of it.
22There are no victim impact statements provided and I understand from the Crown and from the informant that your parents have just had enough and just want nothing more to do with it and just hope it all goes away.
23Unfortunately, it will not ever go away. I can totally understand why they are not having any more input. A very significant gaol sentence with a minimum term is the only option that is open here.
24I then look to matters personal to you in terms of determining the length of that sentence. Helpful submissions were provided by your counsel and he also tendered a letter from a counsellor as well as a report from neuro-psychologist Mr Jackson, and a psychologist, Mr Cunningham. Those reports are revealing.
25You first saw Mr Jackson, the neuro-psychologist who had been asked to see you because apparently there were concerns by your relatives that you had intellectual and cognitive incapacity because you had very little understanding or comprehension in respect to legal matters.
26He took a history from you. He was told, by you apparently, that you had a history of lighting fires and killing animals. There is very little material that can relied upon as to what any of these diagnoses were, or what treatment was received or whatever is this material. It simply has not been provided to me, if in fact it exists.
27You told him that you attended Gormandale Primary School, that you did not have any real problem with schoolwork, but had difficulty focussing and paying attention, disrupting the class, all those sorts of things. You got into a lot of trouble, would often get detentions and suspensions before you were finally expelled from school in Grade 6. You were home-schooled to finish Grade 6 before going to secondary school.
28In secondary school, you were again in trouble for abusing teachers, disrupting the class, and you were expelled at the start of Year 9 for fighting. You then went to school in Hazelwood which is a specialist school. You only stayed there for a couple of months and went back to Traralgon Secondary College, but were expelled after seriously assaulting a child during a game of football. In other material it appears you were in fact kicking him in the head.
29You started drinking alcohol at around 14. There is some difference in notes that have been taken about this, but you claim to have chronically sniffed petrol. You have told others you only ever did it twice. That was around about the age of 14 or so. You started using amphetamines at about 18 and started hearing voices in around about 2016. Your offending had commenced before then and your behaviours had commenced well and truly before then.
30You told Mr Jackson that you had a history of playing with petrol and lighting fires. When you say 'they' I do not know who you are talking about, but you would burn sticks in pots, but they did end up burning structures but you said that occurred by accident.
31You also reported a history of killing animals, in particular, chickens and kangaroos. You said you and a mate used to beat them sticks. You described this as 'fun.' In terms of the chickens, you would just run around after them and hit them until they died. In terms of the kangaroos, you said that your father would initially run over the kangaroos in the car and just injure them and you and your mate would bash them to death with sticks.
32Having been brought up in the country, I find that a pretty unlikely scenario, but be that as it may, there is a number of matters that you have told various people over the last couple of years which I find very difficult to believe indeed.
33As I indicated to your counsellor, I do not intend to make adverse findings against you because of that, because it makes it very difficult in terms of working out where you really are coming from, Mr Cattanach.
34He then goes on to describe how you say that you left home at 14 or 15 and you lived in a house where there were 14 or 15 kids and they were effectively run by what the counsellor described as, 'some Fagin-like woman' who would get you all to steal things from dairies and steal stock and the like. There were 14 there, they were punished in various ways for not stealing or not behaving.
35Again, I find it all pretty hard to believe, but as has been pointed out by the Crown - very sensibly by the Crown - I do accept in this situation that you had a very strange and very difficult childhood.
36You have acknowledged the family violence intervention orders. You told Mr Jackson that you were never really close to your sisters as they went to a private school, whereas you went to a public school. You told Mr Jackson that you had significant anger from your father and that you would be regularly beaten. That is all you had to say to him that I can work out, in respect of that.
37You also told him that a lot of the previous offending, including this offending occurred in the context of drug and alcohol use and I understand that does not assist you in these circumstances.
38Your description of what happened on that night is that your dad's friend had taken you home. That may be true, but you got into a fight with him and your dad jumped in and you started punching this man with your dad. The two of you were assaulting him. Whether that be right, I have got no idea. You admitted that you stabbed the dog, but there is no indication of remorse and said you had to get out of there.
39The documentation that was supplied to Mr Jackson included material from your Justice Health Medical Records, a very, very big file indeed. You have seen psychiatric nurses and psychiatrists all along. There is some sort of unspecified mood disorder, and I am not going to go into great detail of all that, but in January of 2022, when you were remanded for this, your history notes the history of adjustment disorder, dissocial personality disorder.
40You, at that time, apparently denied any previous mental health issues. You said you were not taking medication and you were keen to talk. You denied anxiety or concerns about being back in custody. Interestingly, you told them that you had previously been living with your parents and you said they were a good support, although following the recent incident, you no longer talk to them.
41Whether that is victim-blaming, I do not know what that is about, but it certainly does not fit with other material that is here. There was no evidence of psychosis or any disturbance symptoms at that time.
42In August of 2022, you said you were presenting with complaints of hallucinations and the like. In the end result of the neuro-psychologist, you are of average intelligence, around about 85. There is no cognitive impairment, despite all the drug and alcohol abuse, you still have your cognitive facilities intact, which he found somewhat surprising. He opined, as he was asked to, that as a child you had a conduct disorder and that later on, probably turned into a personality disorder.
43There is no evidence of any acquired brain injury and really as I said, it really comes to a bit of guesswork on his part. It says:
'His behavioural history during his early childhood and teenage years strongly suggest a conduct disorder which is most likely to progress to anti-social personality disorder. I'm of the opinion that these are likely his primary issues, and I strongly recommend a review by a forensic psychiatrist or psychologist with regards to a formal personality assessment and diagnosis.'
44So he is saying in his report that a psychologist would be asking to obtain such a diagnosis, and I will come to that again in a moment.
45But indeed, after that, you then saw Mr Cunningham, the psychologist. He went through pretty much the same sort of history that you had given to Mr Jackson. You told him though that your father would meet out physical violence. You said that your mother did not protect you at those times. You said that your mother would turn up the shower and go to the bathroom to drown out your screams. You left home at the age of 14 or 15. You told Mr Cunningham that you thought your mother was using you as a case study in her training and as I understand it from the Crown opening, it was something to do with training children with difficulties. But in any event, you then repeated that you had gone to this place where you had lived with this woman, with 14 or 15 other children.
46Insofar as the matters that Mr Jackson referred to, the first of those being what I'm referring to here, the Minnesota Multiphasic Personality Inventory (MMPI-2) restructured form test, indeed carried out what Mr Jackson suggested. Mr Cunningham said:
'Mr Cattanach's profile could not be accurately interpreted. His profile indicated no over-reporting of clinical symptoms. Mr Cattanach's over-reporting of mental illness symptoms invalidated the test results.'
47So that did not really get us anywhere. You told him that a friend's father would run over kangaroos and then the children would run out to finish off the kangaroo. You know, there are special doubts about all that. You would beat both wild and farm animals to death with friends. You said that many of your friends in the area entertained themselves by killing animals. You said that you knew it was wrong but the activity was fun.
'He continues to kill animals.'
48Insofar as this matter was concerned, you said that you had argued with your father. You told Mr Cunningham that you felt that your prior mistreatments from your father triggered your anger. You stated you knew the police were coming. Your parents would not give you the car keys so you simply killed the dog to place them in fear. You said you wanted to escape before the police arrived, which would be consistent with what you told your father about threatening to kill him.
49In terms of his summary, Mr Cunningham points out you have continued the pattern of anti-social behaviour of cruelty to animals. You have continued with drug abuse. You have clearly been in custody on a number of occasions. You were not psychotic at the time this occurred and there was no other mental health issue which comes into play insofar as this offending itself was concerned.
50Your counsel argued that the principles involved in Bugmy play a part here, but I have grave doubts about all that. Insofar as Verdins is concerned, again I have got grave doubts about what is actually wrong with you and it may well be that you have a significant personality disorder, and it is clear that most of the offending over the years has been as a result of alcohol and drugs.
51In these circumstances I will give what weight I can to Bugmy, although it is of very limited value in terms of general deterrence and I am well aware that Bugmy does not go away, but always remains as a proposition in sentencing but you have reached the stage already at the age of 30, where community protection has become a very significant, and indeed, the paramount sentencing principle so far as you are concerned. Insofar as Verdins is concerned, again you seem to do all right in gaol. It does not seem to bother you too much.
52As to moral culpability, it is hard to see how what you did on that night in any way, the moral culpability be reduced, although I will do the best I can. As I said to your counsel I think that is one of the most terrifying threats to kill I have ever come across. The behaviour is just absolutely disgraceful, it is cruel, it is callous and there is a lot more I can say about it.
53I have got grave doubts about the history you have given and I make this very, very clear in these sentencing remarks. You have made in the course of these proceedings, in the course of reports, made very serious allegations against your parents. There is no evidence to support those allegations and I am simply not prepared to accept them. I doubt them very, very much indeed. We actually adjourned for a short period of time to have the parents contacted and they just, from what I gather, just do not want to know about it. I think this has come now to the stage where your personality, for whatever reason, is such that you are a cruel man and you are dangerous.
54So far as rehabilitation is concerned, your counsel said guarded. I would say bleak. The prospects of your reoffending if you use liquor or drugs is going to be very high. I am not going to argue about how high, your prior history indicates that your risk of reoffending is high.
55So, in the overall situation, it is, in my view, a bleak one indeed, but the community does not need people like you walking around behaving like this. The attack on the animal only carries a maximum penalty of two years imprisonment for killing a dog in those circumstances. Thirteen blows with the knife is a long time, even working on two seconds a blow, 26 seconds is a long time to be doing that in front of the owner of the dog. What your mother was thinking is just beyond, as I said, beyond my comprehension.
56Taking all those matters into account as best I can, bearing in mind your age, bearing in mind questions of totality, the desire, if possible, to avoid a crushing sentence, it is just going to have to be up to the Parole Board to see whether they can, in the long run, do anything about this. Your capacity for self-reporting is highly dubious, and I just simply cannot take it any further than that, I do not think.
57In any event Charge 1 on the indictment, five years.
58Charge 2, four years.
59Charge 3, 12 months.
60Because of totality, I will not be making the four years totally cumulative; two years of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 to be served cumulatively upon each other and upon the sentence imposed on Charge 1. That gives an effective head sentence on the indictment of seven and a half years.
61On the uplifted matters, the charge of assault, one month concurrent. Charge of aggravated cruelty to animals - a dreadful example of it - 15 months. Charge 3 of drive whilst disqualified, two months concurrent. That gives an effective sentence on the uplifted matters of 15 months.
62I direct, in these circumstances, trying to avoid double punishment, but being aware there are a number of victims here when you look at it, nine months of that 15 months be served cumulatively upon the sentence imposed on the indictment, which gives an effective head sentence of eight years' and three months. I direct that five and a half years be served before being eligible for parole.
63Pursuant to s6AAA of the Sentencing Act I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of 12 years with the minimum term of nine, and I direct that 427 days be reckoned as having been served under this sentence.
64Are there any other orders I need to make?
65MR MOORE: No, Your Honour.
66HIS HONOUR: No, all right. You can talk to him if you want to Mr Chisholm. I will just leave the Bench.
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