Director of Public Prosecutions v Chatters

[2019] VCC 1716

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02114

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN CHATTERS
FALLON VORBACH

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 October 2019
CASE MAY BE CITED AS:	DPP v Chatters
MEDIUM NEUTRAL CITATION:	[2019] VCC 1716

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos
For Accused Chatters	Mr G. Thomas
For Accused Vorbach	Mr P. Kilduff

HIS HONOUR:

1Fallon Vorbach and Nathan Chatters, you were each convicted by jury verdict in September 2019 of recklessly cause injury and assault.  You, Mr Chatters, were acquitted of home invasion and you, Mr Vorbach, were acquitted of intentionally cause injury and, as to home invasion, the jury could not decide and were discharged without a verdict.

2You, Mr Vorbach, have now pleaded guilty to a separate indictment, which alleges you committed an aggravated burglary, related to the circumstances which gave rise to the home invasion charge on the trial indictment. 

3That charge is put on the basis that on the 14th day of June 2018, you entered as a trespasser of building with intent to commit an offence involving an assault to a person therein, and at the time of entering, a person was then present, and you were reckless as to whether or not a person was so then present. 

4Mr Chatters, the verdict on the reckless cause injury is based on your complicity with Vorbach in relation to his assault on Shane Talbot, the victim of one assault.  Similarly, Mr Vorbach was guilty of assault on Ms Francesanala by reason of your complicity with Mr Chatters when he assaulted her during the course of the evening of the aggravated burglary committed by Vorbach. 

5Briefly stated, the circumstances of the offending were these, each of you were living at a cabin park in Seaford, you had known each other for some months.  On the night of 14 June 2018 at about 1 am, you both travelled to an address in North Frankston.  The ute which you travelled in was driven by another person.  The ute was registered in the name of your sister, Mr Chatters.  You went to her house, and when you go there you entered it via an unlocked front door.  You had gone there, Mr Vorbach, to confront and assault Shane Talbot.  This was apparently motivated by a matter that had arisen about a month before.

6Talbot gave evidence that he had lent you some money, some $150, and you had not paid him back.  A fight between the two of you ensued.  Mr Talbot said in evidence that you went down the street to sort it out.  He said he hit you once - sorry, he said you had hit him once and then he hit you twice and knocked you out, and then he left. 

7To his mind, that was the motivation for your unauthorised entry into the house where he was residing, and the subsequent assault on him.  And the two of you entered, the female occupant was in or near the entrance hallway and at first she called out, 'Who's there?'  She then saw you and said to you, 'You can't just walk in'.  You Mr Vorbach, repeatedly asked her, 'Is Shane here?'

8Mr Talbot was asleep in a room at the back of the house and Ms Francesanala then yelled out a number of times, 'Shane', in an effort to wake and warn
Mr Talbot of your presence.  You, Mr Vorbach, endeavoured to push past her, but she grappled and struggled with you, as you were clearly intent on going towards Talbot's room.  This was occurring almost in front of the door to the bedroom where Mr Talbot was sleeping. 

9But Talbot came out and, in those circumstances, actually punched you,
Mr Vorbach, which was described in the course of the evidence.  I consider this consistent with Talbot defending himself from your aggression and clear intent.  You then struck him to the face and head a number of times by standing on it on the ground, causing injury. 

10While this was taking place, you, Mr Chatters, remained in the background near the entrance.  However, when Ms Francesanala had struggled with Vorbach, you, Mr Chatters, came up to her and took her away from Mr Vorbach forcefully by her hair, dragging her down the hallway.  You told her to stop, to think about what she was doing, and that, 'This has to happen', inviting her to stop her interference with what Mr Vorbach was doing to Mr Talbot.

11She has managed to move back towards Talbot and Vorbach, but by this stage, Talbot was getting up and was running out of the house.  Having been knocked down, chased by you, Mr Vorbach, when this happened, you, Mr Chatters, again dragged Francesanala towards the entrance by her hair a second time.  She managed, however, to run out into the street but Talbot was gone. 

12She saw the two of you get into the ute and drive off.  She then found Talbot at a neighbour's house.  He was taken by ambulance to Frankston Hospital for treatment.  He received seven stitches to an open wound, a scalp laceration about 5 centimetres long over the left temporal area.  There was no fracture of the skull.  He had grazes and bruises to his left knee, his left toe. 

13On 22 June 2018, both of you were arrested that the cabin park.  You,
Mr Vorbach, made no comment during your interview.  You, Mr Chatters, denied any involvement, denied knowing about Talbot and Francesanala, denied being there or knowing where they lived. 

14There is no victim impact statement from either Mr Talbot or Ms Francesanala; however, I can reasonably infer from the photographs of Mr Talbot, the nature of the injury, the blood patterns around the assault site, that this was a serious assault by you, Mr Vorbach, on Mr Talbot, and he would have been frightened, apart from injured, and as he testified as much.  Ms Francesanala, similarly, was frightened and then assaulted. 

15Physical violence, aggression and confrontation leaves a profound mark on its victims.  When that happens in the middle of the night in your own house, that exacerbates the fear and trauma.  These offences were committed by each of you in the place where both witnesses were entitled to feel security and safety. 

16These type of offences, particularly, the aggravated burglary, cause consternation and fear and anxiety, not only to the direct victims, but to the community, which looks to the court for protection, denunciation of such behaviour, and the imposition of just punishment. 

17Aggravated burglary carries 25 years as a maximum imprisonment term.  This is a significant starting point in any consideration of the gravity of the offending, and the courts in this State have recently endeavoured to respond to these legitimate concerns and principles by sentencing practices which properly and adequately reflect them by increasing of stern dispositions. 

18Although there is no question of the sentence punishing you in any way for having run a trial, and put the prosecution to its proof, the verdict in relation to the counts for each of you mean that you cannot call upon a mitigation related to remorse, or the benefits which a plea of guilty would have brought. 

19However, there is an anomaly in this case.  Mr Vorbach, you have now pleaded to aggravated burglary, as I have stated.  Of itself, that was a late plea.  However, you had offered to plead to more serious charges at a relatively early stage.  Indeed, those charges were the very charges about which the jury could not decide on the indictment, and of which you were acquitted, that is home invasion and intentionally cause injury. 

20As I indicated during the plea, in my view, you plea should reflect and be accepted not only to reflect that early offer as an attempt on your part to accept responsibility and facilitate the course of justice, but also reflect that ultimately there is a level or remorse attaching to the plea which the prosecution cannot gainsay. 

21The offence pleaded to by you is still a very serious offence carrying a significant maximum penalty.  It should attract the reduction in your sentence, which would usually flow, in my view, for that particular aspect of your criminal conduct; one which pertains more precisely with the entry into a home with a criminal intent. 

22Further, as to each of you, there should, in my view, be a measure of particular cumulation in relation to the offences in relation in recognition that the events described had three distinct aspects, each properly covered by a separate charge.  Another issue is that of parity in your sentences. 

23However, in this regard, my view is that although I should vigilant to ensure that there is no sense of grievance which could arise from any disparity, there are significant distinguishing features which result in a measure of legitimate disparity between the two of you.  The role played each of you is significantly different.  The actual involvement is different, and, to my mind, the relevant culpability can be distinguished. 

24This was very much your enterprise, Mr Vorbach.  Foolishly, Mr Chatters came along with you, being the principle mover, to lend support and assistance which he did unfortunately provide. 

25However, the offences, it must be surmised by the verdict, arose once he had entered the premises and, one, the more serious by way of complicity.  He faces no sentences relating to the aggravated burglary or home invasion, for that matter.  Indeed, it was properly conceded in the plea for Mr Vorbach by his counsel that parity in these circumstances cannot be expected. 

26I take your personal circumstances into account.  You, Mr Vorbach, were born in Nauru and came to Australia, aged one year.  You finally settled in Melbourne with your family, aged 14.  You never met your father.  You completed Year 10 at school, and then worked as a garbage man for 20 years or so. 

27In 2009, you operated a garbage truck business, this lasted till 2014.  In that time, you also completed a course as personal trainer.  You were in a relationship for approximately 20 years and you have two children with whom you have no contact.  Your relationship came to an end over financial matters.

28You have relevant prior criminal history, which does not auger well for your prospects of rehabilitation, prospects which must be guarded, in my view.  Your first court appearance was in February 2008, where you received a two year sentence, with a non-parole period of one year, for negligently causing serious injury and exceeding the alcohol concentration while driving.  You drove while intoxicated, and your passenger was very seriously injured, with serious long-term consequences.

29You set up your business upon your parole  after your release.  Your marriage then floundered.  You took up with another woman, but in 2011, you were convicted of causing injury recklessly and for contravention of a family violence final intervention order, for which you were placed on a community based order.

30In 2013, you were fined for an assault on your boss.  You breached the existing CBO with that offending.  The order, however, was confirmed.  But in 2016, you were again convicted for recklessly cause injury.  Again, a community corrections order was imposed for two years.  I was told, during that time, you were struggling with alcohol and drug abuse.

31In 2018, you were convicted of offences in breach of that order, which nonetheless  was confirmed, and a community corrections order was imposed to deal with offences of drunk and disorderly, unlawful assault, assault of an emergency worker on duty at - and using a carriage service to harass.  These priors are demonstrative of an inclination to use violence in different situations and predicaments that you find yourself in from time to time. 

32You may have completed a man's behaviour program and anger management course during one of your community corrections order.  Such input has clearly had little impact on your conduct.  The aggravated burglary was planned, arranged and carried out for a purpose of vengeance; it is grave offending.  You have been incarcerated mainly at Fulham Correction Facility during your pre-sentence detention, and that those days will be noted and declared as such. 

33You, Nathan Chatters, were born in Tasmania, the third of seven children of indigenous descent.  You were separated from you family, aged 8.  Your mother passed away when you were 12.  You completed high school, and you then qualified as boilermaker welder when you went into custody, where you have spent many years of your adult life, as attested by your very long and significant criminal record, comprised of 47 pages, and listing an extraordinary number of criminal proceedings and sentences. 

34You were married for some 10 years, but are how separated, though remain in contact with your ex-partner in Tasmania.  Whilst on remand, you were assessed and treated by a neuropsychologist, and a service summary was tendered and exhibited to illustrate this aspect.  You are a long-term user of cannabis and amphetamine, as well as intravenous ice use prior to your arrest.  That summary refers to neuropsychological services between January 2019 and June 2019. 

35At the time of your remand in June 2018, you had been in the community for six to seven months, after serving a sentence of some three years, according to the service summary.  Your father was the only family member who had some contact with you, but he has recently passed away.  You have been unemployed for a while and in receipt of a disability support pension now for some time. 

36About 15 years ago, you were involved in motor vehicle accident, following which you had difficulties and seizures related to a head injury, for which you were medicated.  You had been in a drug-induced psychosis at the time of your arrest and remand and, subsequently, this was diagnosed as post-traumatic stress disorder and mixed anxiety and depression. 

37Although your periods of reclusion have meant you have had long periods of abstinence and have not developed a acquired brain injury related to substance abuse.  You have seen a neuropsychologist for five interventions.  In the end, you have provide negative urine samples for illicit substances, had employment in the metal shop, reduced anxiety and improved functioning. 

38This report and your long criminal history may suggest a level of institutionalisation.  It reported that, apparently, your lifestyle in the community lacks both purpose and structure, which reflects your cognitive difficulties.  Mental health and drug abstinence will remain needs which will need to be managed and supported. 

39I will not recite your prior history.  The offences it covers range from bail offences, many driving offences, dishonesty, including burglary and theft, assaults, assaulting police, many charges of aggravated burglaries, breaches of court orders and sentences, drug offences.  It is a remarkable list of criminal conduct.  In the face of this record and the matter raised by the service summary, your prospects must be very guarded.  I note you are currently prescribed risperidone, sodium valproate of epilepsy, and methadone for pain management and mood stabilisers. 

40In both of your cases, not only general deterrence, but specific deterrence are important considerations, as well as just punishment and community protection. 

41Mr Chatters, on Count 3 of recklessly cause injury, you are convicted and sentenced to two years' imprisonment.  On Count 4, assault, you are convicted and sentenced to one year imprisonment.  I order that six months on Count 4 be cumulative on Count 3; that is a total effective sentence of two and a half years.  I order a non-parole period of 19 months.  I declare that you have served 483 days, excluding today, by way of pre-sentence detention; I will have that number noted in the court's records.

42Mr Vorbach, on aggravated burglary, you are convicted and sentenced to three and a half years' imprisonment.  On Count 3, recklessly cause injury, you are convicted and sentenced to two years' imprisonment.  On Count 4 of assault, you are convicted and sentenced to one year imprisonment.  I order that four months on Count 3 and two months on Count 4 be cumulative on the aggravated burglary charge, making a total effective sentence of four years. 

43I order a non-parole period of two years and eight months.  I declare that you have served 483 days by way of pre-sentence detention and note that in the court's records.  Charge 7, the summary charge will be struck out as withdrawn.  There are no other ancillary orders to be made.

44MR TRIANDOS:  If Your Honour pleases, there may need to be a 6AAA on the aggravated burglary, Your Honour.

45HIS HONOUR:  Yes.  In relation to 6AAA, but for your plea, Mr Vorbach, I would have sentenced you to four years' imprisonment, with a non-parole period of two and a half years. 

46COUNESL:  As Your Honour pleases. 

47HIS HONOUR:  Are those sentences clear, gentleman?  Mr Thomas, Mr Kilduff:

48COUNSEL:  Yes, Your Honour.

49HIS HONOUR:  Yes, thank you.

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