Director of Public Prosecutions v Chirnside
[2023] VCC 1221
•29 June 2023
IN THE COUNTY COURT OF VICTORIA
Revised
Not Restricted
Suitable for Publication
AT WARRNAMBOOL
CRIMINAL JURISDICTION
CR-23-00483
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANGUS CHIRNSIDE
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JUDGE:
HER HONOUR JUDGE HASSAN
WHERE HELD:
Warrnambool
DATE OF HEARING:
8 June 2023
DATE OF SENTENCE:
29 June 2023
CASE MAY BE CITED AS:
DPP v Chirnside
MEDIUM NEUTRAL CITATION:
[2023] VCC 1221
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty. Charges of: attempt to pervert the course of justice, threat to kill; common assault; contravene family violence intervention order intending to cause harm or fear; and related summary charges. Accused was in a relationship with the victim.
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence:Total effective sentence: 18 months’ imprisonment in combination with a two year community correction order.
S.6AAA declaration: but for the plea of guilty to these offences, a term of imprisonment of 4 years with a non parole period of 3 years would have been imposed.
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APPEARANCES:
Counsel
Solicitors
For the Director of Public Prosecutions
Ms F. Martin
Office of Public Prosecutions
For the Accused
Mr D. Cronin
Tony Hargreaves & Partners Lawyers
HER HONOUR:
1Angus Chirnside, you have pleaded to the following charges: two charges of attempt to pervert the course of justice for which the maximum penalty is 25 years; one charge of threat to kill for which the maximum penalty is 10 years; one charge of common assault for which the maximum penalty is five years; two charges of contravene a family violence intervention order intending to cause harm or fear for safety, that is a five year maximum penalty; two charges of persistent contravention of a family violence intervention order and that again has a five year maximum penalty.
2You have also pleaded to the following related summary offences: three charges of unlawful assault for which the maximum penalty is three months; two charges of contravention of a family violence intervention order which has a two year maximum penalty; and four charges of commit an indictable offence on bail which has a three month maximum penalty; and one charge of contravening a condition of bail, again which has a three month maximum penalty.
3All these charges arise out of a nine month relationship you had with the victim in this matter, Rebecca Unger[1]. The circumstances of your offending are comprehensively set out in the summary of prosecution which I will attach to these reasons. In brief, the circumstances of your offending were as follows.
[1]A pseudonym.
4On 21 May 2021 you and Ms Unger were at home. Ms Unger was in bed and an argument began about you eating in bed. You verbally abused Ms Unger calling her a 'bitch', a 'cunt' and a 'whore' and spat in her face.
5Ms Unger retaliated and told you, you were a foster kid and were unwanted by your parents. You threatened to kill her, a threat you repeated around three times. (Charge 1)
6You then shoved a bowl of soup into Ms Unger and the soup spilled on the walls and bedding.
7On 4 June 2021 Ms Unger had a friend, Raymond Smith[2], at her house. You came to the house a short time later and began saying to Ms Unger 'So who did you fuck today? I know you fucked somebody'. You then left the house.
[2]A pseudonym.
8You returned around 10.30 and Mr Smith was still there. You began to verbally berate Ms Unger calling her a 'cheater' and telling her to tell Mr Smith about her forty affairs.
9Ms Unger asked Mr Smith to leave. When he was gone you began to verbally abuse her calling her a 'slut'. Ms Unger threw the contents of a glass of wine at you and you kicked the table the wine glass was on, causing it to break. Ms Unger went to bed. You continued to call her a 'slut' and a 'cunt' and threw a box of crackers and dip at her. (Summary Charge 35, unlawful assault charge.)
10Shortly thereafter the incident, two friends of Ms Unger including Michael Roberts[3], came to the house. You continued arguing with Ms Unger calling her a 'slut'.
[3]A pseudonym.
11At approximately 2.50 am Ms Unger called the police.
12Police attended and Ms Unger told them that she was the victim of verbal abuse.
13On 5 July 2021 a complaint and warrant for an intervention order was issued on you. You were bailed with conditions not to contact or approach Ms Unger and not to commit family violence.
14A final intervention order was imposed at the Warrnambool Magistrate's Court on 10 June 2021 with the condition that you were not to commit family violence against Ms Unger. Your bail was extended until 15 November 2021 with conditions that you abide by the conditions of the IVO.
15On 26 June 2021 you and Ms Unger were staying at the Werribee Mansion for the weekend. You were arguing and were verbally abusing Ms Unger. Ms Unger left the room to get away from your abuse. You began searching the hotel grounds for her and messaging her. You told her in the messages that you 'hated her' and that she has ruined the weekend.
16You eventually found her and you both returned to your room where you continued to argue and you continued to call Ms Unger derogatory names.
17You grabbed Ms Unger by the hand and by the wrists and tried to pull the rings you had given her off. (Charge 3, common law assault.)
18Ms Unger took the rings off herself and began crying and got into bed. You pushed her out of bed and onto the floor. (Part of Charge 3, common law assault and summary charge commit an indictable offence on bail.)
19The night manager called your room. You answered and told her everything was okay but she could hear a woman crying. After the call, you told Ms Unger to 'lay down and shut up like a dog'.
20Police attended at about 1.12 am. You were arrested for breaching your final IVO and the entirety of your conduct at the Werribee Mansion is the basis of Charge 2, contravention of an IVO intending to cause harm for fear or safety.
21You were taken to the Werribee police station. The intervention order was varied to a full non-contact order. You were bailed to the Magistrates’ Court at Warrnambool for an intervention order hearing 1 July 2021. Your bail condition was to comply with the conditions of the final IVO.
22Between 27 June and 1 July you were in constant contact with Ms Unger. You stayed at her house each night and sent her text messages every day. You discussed the upcoming IVO court matter and made multiple attempts to explain your behaviour. You told Ms Unger that she had to attend court and 'tell them to drop the order' otherwise they would grant it.
23You told her in person and by text message to provide false information to the court in relation to the IVO hearing. Ms Unger still wanted to see you, so she attended court as instructed by you. Relevant text messages between you are included in the table of prosecution opening attached to these reasons.
24In general terms you instructed her to give an alternative explanation for her bruises and to tell her lawyer that there had been a big mix up and that she was fine. That is the basis for Charge 4, which is an attempt to pervert the course of justice and also summary Charge 9, commit an indictable offence on bail.
25On 1 July at the Magistrate's Court at Warrnambool a final IVO was granted. The conditions imposed were as follows:
a)You were not to commit family violence against Ms Unger;
b)You were not to intentionally damage any of her property or threaten to do so;
c)You were not to approach or remain within 5 metres of her while intoxicated or affected by alcohol or drugs;
d)You were not to go or to remain within 50 metres of her address in Warrnambool while intoxicated or affected by alcohol or drugs.
26You were present at this hearing when this order was made.
27Between 17 June and 8 July you contravened the final IVO order numerous times by committing family violence. Your conduct was often filmed by Ms Unger on her phone and a table setting out the instances of your conduct is included in the annexed summary of prosecution opening.
28Described in general terms your conduct involved calling Ms Unger obscene and derogatory names and constant accusations of infidelity and betrayal on her part. That is Charge 5, persistent contravention of a family violence intervention order and also another charge, summary charge of committing an indictable offence on bail.
29Between 8 July and 5 August 2021 you continued to breach the order, committing acts of family violence against Ms Unger. You subjected her to a barrage of obscene and derogatory verbal abuse and abusive conduct in person and via text. (Charge 6 and related summary Charge 11.)
30On 6 August 2021 Ms Unger went for a walk on the beach. You contacted her via multiple text messages between 3.24 pm and 4.02 pm, asking where she was. You accused her of having sex with someone on the beach. You continued to message her trying to find out where she was. She sent you a photo of the beach she was at. You continued to accuse her of being there to meet someone.
31You later drove past her home in your car and stuck your middle finger up at her.
32You continued to send multiple text messages from 6.20 pm until Ms Unger arrived home around 9 pm. You demanded proof that Ms Unger was at home and you continued to accuse her of cheating on you with other people.
33You went to her home and the two of you watched television together, but you became angry accusing Ms Unger of messaging people on her phone and cheating. You said to her 'I just want to shoot you in the fucking head'. (Related summary Charge 48.)
34You continued to verbally berate Ms Unger and spat at her, the saliva landing on the chest area of her jumper. (Unlawful assault summary charge.)
35On 7 August 2021 you sent a message to Ms Unger again accusing her of cheating and accusing her of going to the police. You denigrated her verbally calling her 'a sneaky head fuck', 'a psycho witch' and 'an emotional piss wreck'.
36Ms Unger arrived at her home around 3 pm with a friend, Melanie Wylie[4]. Not long after, you arrived at the house and began yelling. Ms Wylie left.
[4]A pseudonym.
37Another neighbour, Samantha Ryrie[5], then came to the house. You became agitated by her presence. When she left, you and Ms Unger began drinking wine together. Ms Unger began using her mobile phone and you began to accuse her of cheating. You called her 'a filthy slut' and said she 'would fuck anything'. You spat four times on her pelvic region. (Charge 7, contravention of the IVO.)
[5]A pseudonym.
38Later that evening you again became upset about Ms Unger using her mobile phone. You swung your right hand at her, hitting her in the face with an open hand. You immediately apologised. (Summary charge 26.)
39You started hitting yourself on the head with a candle holder. When Ms Unger asked you what you were doing, you replied you needed to make it look like she had attacked you.
40Ms Unger went to the toilet before going to bed. You armed yourself with a medium sized kitchen knife. You stood around half a metre from her and shook the knife in the air, screaming 'look what you made me do'. You then held the knife to your arm. You came into the bathroom with the knife, causing Ms Unger considerable fear for her safety, before you moved away. (That incident is another part of Charge 7, which is the contravention of the order.)
41Ms Unger began filming your behaviour on her phone and the video depicts you verbally abusing her, calling her derogatory and obscene names and threatening to kill yourself. You later left the house but continued to verbally abuse Ms Unger via text messages.
42The following morning neighbours called police who attended Ms Unger’s home at around 9.30 am. Ms Unger denied that anything had happened and the police left.
43On Friday 9 August 2021 Ms Unger received a call from you, telling her police were at your mother's house looking for you. You told Ms Unger to call Warrnambool police station to find out why you were wanted by police.
44Ms Unger called Warrnambool police station and was told police wanted to speak to you about the events of 7 August.
45Ms Unger called you after speaking with police and you told her to go to the police station and 'make a statement that makes it sound better'. You told her it looked really bad for you. You told her to tell police that she made a grab for your phone and that she had hit herself in the face.
46You exchanged text messages about the statement you wanted her to make on 9 August 2021, in which you told her to find out what the neighbours had said to the police, and to go to the police station and give an alternative and exculpatory account of any incriminating text messages and of your conduct. That is the basis of Charge 8, which is a charge of attempt to pervert the course of justice and it is also another incident which is, an indictable offence in breach of bail.
47At approximately 6.30 pm Ms Unger attended at the Warrnambool police station and spoke to Leading Senior Constable Lawton. She provided a statement in which she disclosed information in line with what you had told her to say. She stated that she hit herself in the face when attempting to grab your phone and that she could not be sure you were holding a knife, because it was dark.
48On 13 January 2022 you contacted Ms Unger via Snapchat telling her you were in trouble and urging her to continue to assist you with the police. (Part of summary Charge 16, contravention of a family violence order and the charge of contravention of a condition of bail, a summary charge.)
49You were arrested and interviewed on 9 August 2021 in which you made some admissions but generally minimised your conduct.
50You were interviewed again on 17 September 2021 and made a no comment record of interview, and again on 21 November 2022 you made a no comment record of interview.
Victim Impact Statements
51Ms Unger, her daughter and her parents have made victim impact statements. Ms Unger’s parents say they have witnessed firsthand the suffering of their daughter and this has taken its toll on them, causing them considerable fear and anxiety.
52Ms Unger’s daughter says much the same thing. She says the stress and anxiety she endured worrying about her mother meant she could not work and at the end of 2021 she had to take unpaid compassionate leave in order to support her mother.
53Ms Unger says she grew up in a loving family home where her parents never fought and although separated, she enjoyed a loving relationship with her former partner of 22 years.
54She says after having been married for 22 years she is inexperienced at dating. She says you attempted to control and manipulate her and that she lived in fear of you. She says she withdrew from others, including her children, her parents and her former partner. She says she has to see counsellors and therapists to address her anxiety and now requires medication to sleep.
55She says your abuse of her still affects her life and she cannot envisage having a loving relationship with another man.
56I take into account in the sentence I will impose the effects of your offending on Ms Unger.
Plea of Guilty
57You entered pleas of guilty on 28 March 2023 prior to any witnesses being called to give evidence at a committal hearing. Your plea is therefore a plea at the earliest opportunity. It carries significant utilitarian value in the context of the still-ongoing effects of the COVID-19 pandemic and the delays to the administration of criminal justice in this State.
58I sentence you in accordance with the principles set out in the case of Worboyes.[6]
[6] Worboyes v The Queen [2021] VSCA 169
59I also find in conjunction with your plea, your apology to the victim tendered at your plea and also your efforts at rehabilitation, which I will discuss more fully later in these reasons, are indicative of remorse on your part.
60You were assessed by Patrick Newton, clinical and forensic psychologist on 21 April 2023 and your background and personal circumstances are set out in Mr Newton's report and in the submissions made on your behalf by your counsel, Mr Cronin.
61You were born in March 1989 and you are presently 34 years old. You were born in Adelaide before moving to the Camperdown area.
62You told Mr Newton that you had a chaotic and unstable early life, overshadowed by your mother's alcoholism. Your parents separated when you were aged around three to four; you lived with your mother but at the age of around 12, your mother left you and your older brother with your father. You thought you were on a holiday visit but your mother did not return.
63Shortly thereafter, your father fell ill with cancer, and you and your twin brother were placed in foster care for six months. Your father died when you were only 13 and you returned to live with your mother. Your mother had re‑partnered, and you told Mr Newton that he was a violent alcoholic and your mother's own drinking had become worse.
64You attended school until Year 11. After school you worked as an asphalter before you completed your apprenticeship in plumbing. You and your twin brother started your own plumbing and gas fitting business together, which has had some success, but which however has been the source of some conflict between you and your brother.
65You told Mr Newton that you had loved Ms Unger, but the relationship was marred with persistently high conflict which you attributed to mutual substance abuse.
66You have a history of alcohol abuse going back to your teens. You told Mr Newton that you were drinking heavily by your mid-20s and described symptoms which indicated to Mr Newton that you had a physical dependence on alcohol. You told him that you had participated in alcohol and drug counselling while on bail for these offences, but you said you had continued to drink until you were remanded and openly acknowledged to Mr Newton that you had lied to counsellors and others about your drinking.
67You also told Mr Newton that you planned to return to controlled drinking when you were released from custody. Mr Newton gives the opinion that 'Doing so would place him at a high risk of relapse to problem drinking and be very imprudent'.
68You have used other drugs including cocaine in conjunction with alcohol while you were on bail. You told Mr Newton you had been careful to ensure that you did not obtain a positive urine screen. This, in conjunction with your lies, clearly impeded treatment you were receiving.
69You have experienced recorded recurrent bouts of anxiety and depression commencing in 2017. You were prescribed an anti-depressant in 2018 and again in 2021.
70Mr Newton was of the opinion that you are of low to average range intelligence. Mr Newton was of the opinion that you were not labouring under the effects of any mental disorder at the time of the offending. He was of the view that you met the criteria for substance abuse disorder in early remission in a controlled environment.
71He opines that he does not consider that you are experiencing incarceration as more onerous than other prisoners. He says:
His mental state is characterised by proportionate symptoms of anxiety and depression and there is no indication that he has experienced difficulties outside the normal range of those typically experienced by prisoners.
72He opines that your attitude to alcohol remains permissive and consequently you remain a risk of relapse of alcohol abuse and future intimate partner violence.
73Notwithstanding your permissive attitude to alcohol, you have taken steps to address your offending. You participated in the Men's Behaviour Change program in 2021, a program designed to address family violence.
74In custody you have participated in drug and alcohol treatment and respectful relationship courses. You have participated by way of video conferences from custody, in treatment with Peter Hanley, psychologist. Mr Hanley says you have made insipient progress with him and that your treatment with him is ongoing.
75You are also having treatment and counselling with Ms Karly Doyle, a forensic clinician with Ontrack Counselling services and you do this via teleconference.
76You have re-partnered and your partner, Ms Joanne Mugavin, says that your relationship is respectful and happy. Her parents also wrote a reference on your behalf and they say they find you to be remorseful and are satisfied that their daughter is happy and comfortable with you.
77Character references were also tendered from your twin brother and other long-standing contacts who all expressed the opinion that they view this offending as out of character and that you have their continued support.
Submissions of the parties
78On your behalf Mr Cronin relied upon your plea of guilty and your lack of a relevant prior criminal history. I should say you have only two minor criminal matters which are irrelevant in my view. He submitted Bugmy[7]principles were engaged in the general sense to moderate your moral culpability, based on the material contained in Mr Newton's report.
[7]Bugmy v R (20130 302 ALR 192 (“Bugmy”)
79He submitted that apart from the offending for which you are to be sentenced, you have otherwise lived a productive life and that your current relationship is not characterised by abuse or violence.
80Mr Cronin did not dispute the seriousness of your offending but submitted that this was not a case of intimate partner abuse which involved allegations of very serious violence. He submitted that the charges of attempting to pervert the course of justice also did not involve violence or threats.
81He referred me to comparable cases[8] which have been of some assistance in sentencing you. Mr Cronin submitted you have made concerted efforts to rehabilitate, and that you have expressed remorse. He submitted a sentence comprising of a sentence of imprisonment in combination with a corrections order was appropriate.
[8]Carter v The Queen [2020] VSCA 156; DPP v Swanson [2020] VCC 2073; DPP v Freeman(a pseudonym) [2021] VCC 1651
82Ms Martin on behalf of the prosecution submitted that this was a serious example of intimate partner abuse and called for the imposition of a sentence of imprisonment consisting of a head sentence and a non‑parole period. She disputed that Bugmy principles were engaged in sentencing you. She submitted that the material tendered did not demonstrate a profoundly disadvantaged childhood. She submitted your problematic attitude to your alcohol consumption was relevant to my assessment of your prospects of rehabilitation.
Objective gravity and moral culpability
83I turn now to my assessment of the objective gravity of your conduct and your moral culpability.
84You subjected Ms Unger to behaviour which was relentless, oppressive, degrading, threatening and at times involved physical violence. Your conduct must have worn her down and left her feeling helpless and frightened.
85You paid scant regard for orders and on two occasions manipulated Ms Unger in an attempt to get her to withdraw complaints to police against you.
86While I accept the submission made by your counsel that this is not a case of family violence involving a high level of violence, and the attempt to pervert the course of justice charges do not involve threats or acts of overt intimidation, nevertheless your abuse of Ms Unger is objectively serious offending and your moral culpability is high.
87I reject that Bugmy principles are engaged in sentencing you. I accept that you had a number of distressing experiences during your childhood and formative years, in particular the death of your father when you were only young; but in my view this does not amount to a childhood marred by profound deprivation to the extent it can be taken into account in the assessment of your moral culpability.
88Having said that, I do take into account that you had a very difficult early life in a general sense, in the sentence I will impose.
89General deterrence and denunciation are the predominant sentencing considerations in cases of intimate partner violence. The sentence I impose must send the message that male violence against women will not be tolerated. The sentence I impose must also deter you from behaving this way again in the future.
90I assess your prospects of rehabilitation as good. Although you have been reluctant to properly address your alcohol addiction, surely now when you find yourself in custody for the first time, you will finally face up to what you must do to rehabilitate and to live offence free.
91Considering all the matters I am required to under the Sentencing Act 1991 and matters personal to you, I intend to sentence you as follows. Mr Chirnside, in the circumstances you can remain seated.
92You are convicted on all charges, indictable and summary.
93On indictable Charges 1, 2, 3, 5, 6 and 7 you are sentenced to an aggregate sentence of imprisonment of 12 months in combination with a two year correction order.
94On indictable Charges 4 and 8, you are sentenced to an aggregate sentence of imprisonment of 12 months.
95On summary Charges 5, 9, 11 and 24 and those were the summary charges of committing an indictable offence of bail, you are sentenced to an aggregate sentence of two months.
96On summary Charges 16 and 48, they are the summary charges of contravention of a family violence order you are sentenced to an aggregate sentence of six months.
97On summary Charges 18, 26 and 35, they are the unlawful assault charges, you are sentenced to an aggregate sentence of two months.
98Finally, on summary Charge 17, contravention of a condition of bail, you are sentenced to one month imprisonment.
99I direct that the aggregate sentence of imprisonment on indictable Charges 1, 2, 3, 5, 6 and 7 is the base charge. I direct that five months of the sentence on the aggregate sentence imposed on indictable Charges 8, and one month of the aggregate sentence imposed on summary Charges 5, 9, 11 and 24 be served cumulatively upon the base charge and upon each other. That makes a total effective sentence of 18 months imprisonment in combination with a two year community correction order.
100I declare that you have served 248 days pre‑sentence detention.
101Had you pleaded not guilty, I would have sentenced you to a term of imprisonment of four years with a non-parole period of three years.
102Alright Mr Chirnside, let me explain in broad terms the implications of the sentence. You have served 248 days' imprisonment, roughly that is eight months. I have sentenced you to 18 months, so you have got 10 more months in gaol. After that you will go onto a two year correction order, the conditions of which will be as follows.
103Within two days of your release from custody you will need to report to Warrnambool Corrections Services, and they are at Raglan Parade, Warrnambool. The order will last for two years. The mandatory conditions of the order will be essentially that you will have to comply with all lawful directions that are given to you by your worker from corrections.
104Upon your release from custody, you will have to report to corrections within two days. You will have to obey all lawful instructions from your worker from corrections and you are to be offence free; no criminal offending during the period of two years that the order will last.
105You will have to report to and receive visits from corrections.
106You will have to let a community corrections officer know about any significant changes in your life during this period, and that includes changes to your address or to your work.
107You will not be able to leave the State of Victoria without alerting corrections and you will have to essentially obey all lawful directions and instructions,
108You will also have to perform 200 hours of unpaid community work over the two year period. You will be under the supervision of corrections.
109You will have to undergo assessment and treatment and testing for drug abuse and dependency. You will need to undergo assessment and treatment for alcohol abuse and dependency and you will have to undergo a mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or any treatment directed by corrections.
110You will have to participate in courses and programs to address factors that were related to your offending.
111Fifty hours of that treatment can be credited as work hours. So I have ordered that you perform 200 work hours during the period of the correction order, but if you do all your treatment and rehabilitation, 50 hours of that can be credited as work hours.
112I will also require you to attend judicial monitoring in front of me, given that you still have to do a period of about 10 months in gaol, and to give you some time to progress on the order, that is some time into the future, that will be on 29 October 2024 at 9.30 am in the Melbourne Magistrate's Court.
IN THE COUNTY COURT Case reference: CR-23-00483
OF VICTORIA Indictment: C2215109
AT WARRNAMBOOL
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANGUS CHIRNSIDE
Summary of Prosecution Opening for Plea Hearing
Dateof document: 19 May 2023 Filedonbehalfof: Director of Public Prosecutions Preparedby: AbbeyHogan Solicitor’s code: SolicitorforPublicProsecutions Telephone: 565LonsdaleStreet MelbourneVIC3000 Reference: BACKGROUND
1The accused, Angus Chirnside, was born on the XX March 1989. He was 32 years old at the time of the offending.
2The complainant is Rebecca Unger[9], born on the XX[10] of June 1978.
[9] A pseudonym
[10] Omitted
3At the time the offending commenced the accused and the complainant had been in an intimate relationship for more than 9 months.
4The accused and the complainant were living together at the complainant’s home for most of the relationship.
CIRCUMSTANCES OF THE OFFENDING
Incident of 21 May 2021
5On 21 May 2021 the accused and the complainant were at the complainant’s home at an address[11] in Warrnambool.[12] The complainant went to bed and fell asleep.
[11] Omitted
[12] Rebecca Unger, 29 August 2021, HUB 82 [20].
6The accused came to bed with pumpkin soup and Doritos. This annoyed the complainant because she had been asleep before he came in. She said, ‘are you fucking kidding me?’ and the accused replied ‘what the fuck, you bitch’.[13]
[13] Unger, 29 August 2021, HUB 82 [21].
7An argument started and the accused said, ‘even your kids hate you, Marie[14] hates you, you’re a fucking tip rat, you’re a cunt of a mum, your kids hate you and they will never love you’. The complainant retaliated and said, ‘both of your parents didn't want you, you’re a foster kid’.[15]
[14] A psudonym
[15] Ibid.
8The accused spat on the complainant's face and said, "you fucking whore, you fucking cunt".[16]
[16] Ibid.
9The complainant again replied about how the accused's parents didn't want him. The accused said to the complainant "don't you dare say that about me, I will fucking kill you."[17]
[17] Ibid
Charge 1 - Threat to Kill
10The complainant tried to dismiss this by saying "whatever" and the accused replied "no, I won’t kill you now, but I will come back and I will kill you.” The complainant again attempted to dismiss the threat by saying "no you won't" before the accused reiterated the threat for a third time by saying "mark my words, I will kill you".[18]
[18] Ibid.
Charge 1 - Threat to Kill continued
11The accused then shoved the bowl of soup into the complainant several times until he caused it to spill onto the complainant, the bed sheets and the wall. The complainant said, "how could you do that" and the accused replied "na fuck you, you slut".[19]
[19] Ibid. Photographs, Exhibit 6, HUB 204.
Inident of 4 June 2021
12On 4 June 2021, the complainant had a friend, Raymond Smith[20] at her house.
[20] A pseudonym
13The accused returned home later that day and, shortly after arriving, took a shower. The complainant went to the toilet and while the two of them were in the bathroom together the accused said to the complainant “so who did you fuck today, I know you fucked someone.” The accused left the house soon after.[21]
[21] Unger, 29 August 2021, HUB 83 [24].
14When the accused returned, around 10.30 pm, Ms Smith was still at the house. The accused called the complainant a cheater and told the complainant to tell Ms Smith about the complainant’s “40 affairs”. The complainant asked Ms Smith to leave.[22]
[22] Unger, 29 August 2021, HUB 83 [24].
15After Ms Smith left, the accused and the complainant had some normal conversation.
16The accused then brought up cheating again. He continued to verbally abuse the complainant, calling her a “slut” and telling her that everybody hates her.[23] The complainant, who wanted the accused to stop, picked up a wine glass and threw the contents at the accused.[24] The accused was very angry and kicked the furniture the wine glass was resting on, causing the wine glass to fall and smash.[25]
[23] Unger, 29 August 2021, HUB 83 [25].
[24] Unger, 29 August 2021, HUB 83 [25].
[25] Unger, 29 August 2021, HUB 83 [25].
17The complainant went to the bathroom and went to bed. The accused entered the bedroom, bringing with him ‘Shapes’ crackers and dip. The accused called the complainant a “slut” and a “cunt”.[26] The accused then threw the box of ‘Shapes’ crackers and dip across the bed at her.[27]
[26] Unger, 29 August 2021, HUB 83 [26].
[27] Photographs, Exhibit 4 HUB 187.
Related Summary Offence Charge 35 – Unlawful assault
18Shortly after the incident, two friends of the complainant, including Michael Roberts[28] , came to the complainant’s home. The complainant let them in. The complainant and the accused continued to argue, with the accused calling her a slut. At approximately 2.50 am, the complainant called the Warrnambool Police Station and spoke to Constable Nathan Hunt. Constable Hunt called ‘000’. [29]
[28]A pseudonym
[29] ‘000’ call, 5 June 2021, Exhibit 36.
19Senior Constable Rowan Baldam and Senior Constable Jade Moloney attended and spoke with the complainant. The accused had left by the time police arrived. The complainant disclosed she was the victim of verbal abuse and that the accused had yelled at her and called her a ‘slut’.[30]
[30] First Constable Jade Moloney, 14 December 2021, HUB 156 [4].
20An interim intervention order is issued
21On 5 June 2021, a complaint and warrant for an intervention order was issued and served on the accused. He was bailed with the following conditions:
(a) The protected person is the complainant.
(b) The accused is prevented from:
·Committing family violence against the protected person
·Publishing on the internet by email or other electronic communication any material about the protected person
·Going to or remaining within 50 metres of [omitted] Crescent, Warrnambool VIC 3280 or any other place where the protected person lives, works or attends school/childcare
·Contacting or communicating with the protected person by any eans
·Attempting to locate, follow or keep the protected person under surveillance
·Intentionally damaging any property of the protected person or threatening to do so
·Approaching or remaining within 5 metres of the protected person
A final intervention order is imposed
22On 10 June 2021, the Magistrates’ Court at Warrnambool imposed a final Family Violence Intervention Order under the Family Violence Protection Act 2008 (the final IVO). The protected person was the complainant.
23The final IVO was imposed with the following condition:
·The accused must not commit family violence against the protected person.[31]
[31] Certified Extract, 10 June 2021, Exhibit 31.
24The Magistrates’ Court at Warrnambool extended the accused’s bail to the 15th of November 2021 with conditions to abide by the final IVO.[32]
[32] Certified Extract, 10 June 2021, Exhibit 30, HUB 252.
Incident of 26 June 2021
25On 26 June 2021 the complainant and the accused were at the Werribee Mansion for the weekend.[33] They stayed in Room 332.[34] Whilst the accused and complainant were in their hotel room the accused became loud and abusive, calling the complainant a ‘slut’ and a ‘cheat’.[35]
[33] Unger, 29 August 2021, HUB 84 [29].
[34] Maria Esperitu, 27 June 2021, HUB 118, [9].
[35] Unger, 29 August 2021, HUB 84 [30].
Charge 2 – Contravention of order intending to cause harm or fear for safety
26Because of the abuse, the complainant left the room and hid from the accused in the grounds of the hotel.[36] The accused messaged her and accused her of being “slippery” and “hunting the hotel grounds”.[37] The accused also messaged the complainant that she had wrecked the weekend and that he hated her.[38]
[36] Unger, 29 August 2021, HUB 84 [31].
[37] Exhibit 7, p 819.
[38] Unger, 29 August 2021, HUB 84 [32].
27The accused found the complainant and called her a ‘slut’ and accused her of ‘looking for a root’.[39] The accused calmed down and played a game of pool with the complainant before returning to their room.[40]
[39] Unger, 29 August 2021, HUB 84 [33].
[40] Unger, 29 August 2021, HUB 84 [33].
28Once they returned to their room, the two of them continued to drink. The accused started calling the complainant names.[41] The accused demanded the complainant take off the rings he had given her. He grabbed her hand and wrist and tried to pull the rings off[42]
[41] Unger, 29 August 2021, HUB 85 [34].
[42] Unger, 29 August 2021, HUB 85 [36].
Charge 3 – Common law assault
29The complainant ended up taking the rings off herself. The accused said they meant nothing and threw the rings across the hotel room.[43]
[43] Unger, 29 August 2021, HUB 85 [36].
Charge 2 – Contravention of order intending to cause harm or fear for safety continued
30Shortly after, the complainant was in bed crying. She states she was looking away from the accused when the accused pushed her out of bed and onto the floor.
Charge 3 – Common law assault continued
Charge 2 – Contravention of order intending to cause harm or fear for safety continued
Related Summary Offence Charge 5 – Commit indictable offence whilst on bail
31Marissa Espiritu, night manager at the Werribee Mansion, heard arguing coming from Room 332 around midnight. After that, another room called reception complaining of stomping feet and loud banging. Ms Esperitu went to the door of Room 332 and heard a female screaming and crying.[44]
[44] Marissa Esperitu, 27 June 2021, HUB 117 {2] – [4].
32Ms Esperitu heard more loud banging and then she called the police. Ms Espiritu states she heard a female scream “Please, please” and “Stop it”. Ms Espiritu knocked on the door but no-one answered. Ms Esperitu went back to reception and called Room 332. A male answered and said everything was okay. Ms Esperitu could hear a female crying in the background.[45] A few minutes later, Ms Esperitu returned to Room 332 and heard a male saying “Stop crying”.[46]
[45] Esperitu, HUB 118, [6]-[7].
[46] Esperitu, HUB 118, [8].
33After the phone call the accused told her to “lay down and shut up like a dog.” The complainant remained on the bed. This interaction is captured on video supplied by the complainant.[47]
[47] Exhibit 22, IMG_6388.
Charge 2 – Contravention of order intending to cause harm or fear for safety continued
34At approximately 1.12 am, police attended. The complainant verbal abuse and pushing between herself and the accused but was against police action. The accused was arrested for breaching the final IVO and taken to Werribee Police Station where he was interviewed. Constable Peter Tu applied via ‘complaint and warrant’ to vary the final IVO.[48] The accused was served with a copy of the application naming the complainant as the protected person. The variation was to a full ‘no contact’ order.
[48] First Constable Peter Tu, 17 November 2021, HUB 142 [8].
35The accused was bailed to the Magistrates’ Court at Warrnambool for an intervention order hearing on 1 July 2021. The accused’s bail condition was to comply with the conditions of the final IVO.
The accused contacts the complainant
36Between 27 June 2021 and 1 July 2021, the accused was in constant contact with the complainant. He stayed at her house each night and sent her text messages every day.
37The accused discussed the upcoming IVO court matter and made multiple attempts to explain his behaviour.[49] He told the complainant she had to attend at court and tell them to ‘drop the order’ otherwise they would grant it. The accused instructed the complainant, in person and by text message, to provide false information to the court in relation to the IVO hearing. The complainant still wanted to see the accused, so she went to court.
[49] Exhibit 7, HUB 831-832.
38Text messages sent between the accused and complainant during this period included:
28 June 2021
Time Accused Complainant 1.23pm Like just want to actually run away. You gunna say it started over lending Nick money 1.26pm I feel that sick babe 1.28pm It started over u getting angry about cooky 1.28pm But I say whatever you think it better 1.31pm Prob the money thing. Mentioning anything like cooky sounds super bad 1.32pm Anything that makes me sound the smallest bit bad will be bad 1.33 You’re not on any order so I can’t really sound bad at all I think 2.51pm Lover. You can always say you got bruises in Darwin maybe exploring?
I’ll msg you when I’m leaving xxxx love you forever! I’m there with you
2.59pm Complainant: Yeah I will babe x
30 June 2021
Time Accused Complainant 7.50am Please don’t come tomorrow. Keep all your videos ect and with you not being there you get Complainant: Of course I’m going tomz… I honestly think you need time out and I do too. U need to focus on your mental health. I’ll support you where I can. But right now nothing’s changing and I don’t want this for life sorry Accused: I really don’t want
you to go tomorrow. I’m not being held ransom by videos stored on your phone. And to not be able to tell me who was talking about me then this relationship doesn’t have much of a future
July 2021
Time Accused Complainant 9.18am Just don’t go into court till I get there Rather go in and wear this than you get here and totally hang me Thought it was better I come
So I can get the order lifted
Ok
It prob won’t matter if you say I did anything wrong I’m so screwed
They only talking about AVO They will ask questions I’m not saying a thing What about saying I didn’t do it 11.40am Complainant: Wish they would just fucking sort it or cancel the whole ting and we move on Accused: Yeah just tell your lawyer look big mix up you’re fine let’s go home Ok I told her I’m going to come in
She said don’t give them any information except u want it varied so we can still be together
She said police will always try sway you
Charge 4 - Attempting to pervert the course of justice
Related summary offence Charge 9 – Commit indictable offence on bail
The final IVO is varied
39On the 1st of July 2021, the Magistrates’ Court at Warrnambool granted Constable Tu’s application for a variation of the final IVO. The conditions imposed were for the accused not to:
·Commit family violence against the complainant
·Intentionally damage any property of the complainant or threaten to do so
·Approach or remain within 5 metres of the complainant whilst intoxicated or effected by alcohol or drugs
·Go to or remain within 50 metres of [omitted] Warrnambool VIC 3280 whilst intoxicated or affected by alcohol or drugs.[50]
[50] Certified Extract, Exhibit 32, HUB 260.
40The accused was present at the hearing.[51]
[51] Ibid.
Persistent Contraventions of the Intervention Order
41Between 17 June 2021 and 8 July 2021, the accused contravened the final IVO order numerous times by committing family violence, as shown in videos taken by the complainant on her mobile phone:
Date Time Accused to Complainant 17 June 2021 10.13 pm ‘she’s a fucking whore’, ‘ she’s a horny piece of shit, just like you’, ‘you’re a nuffy’, tart you were’, ‘you’re a
tart’[52]
18 June 2021 8.32 am ‘You’re a cunt’, ‘Unfaithful cunt’[53] 26 June 2021 10.54 pm ‘Tart’, ‘That’s what you do, you’re a tart, ‘Fuck off’, ‘Absolute arsehole and nuffy, ‘You’re a fuckhead, deadest fuck wit’.[54] 10.54 pm ‘Absolute arse hole’, ‘dead set fuckhead’[55] 11.19pm ‘You’re a piece of shit’, ‘Psycho games’, Cheater games’[56] 11.30 pm ‘Cunt of a mum you are’, ‘Piece of shit that rang the cops’[57] 27 June 2021 1.20 am ‘You are fucking dog’, ‘you’re a cunt’. [58] [52] Exhibit 19, List of Video Evidence, HUB 230, IMG_6258.
[53] Exhibit 20, List of Video Evidence, HUB 232, IMG_6260.
[54] Exhibit 21, List of Video Evidence HUB 234, IMG_6308.
[55] Ibid, IMG_9286.
[56] Ibid, IMG_6312.
[57] Ibid, IMG_9295.
[58] Exhibit 22, List of Video Evidence, HUB 236
42Text messages between the accused and the complainant during this time are extensive. The accused sent messages on 21 different days.
43The accused committed family violence via text messages on the following occasions:
17 June 2021
Time Accused Complainant 11.23 am Fuck off. I hate you for that He added me the last week. You didn’t have to accept and you know how I feel about it,
Just fuck right off.
And I have only sent like nothing snaps. He was always Johnny. I could not care you snake I’m not snake Absolute snake of a person 11.25 am I only have hate for you now 11.27 am Fuck off you slippery human 11.28 am Fuck off!.. Slippery fucker 11.29 am Instant hate for you I have and would never ever say or do anything with anyone
I don’t want to Fck him
Fuck off you slippery human He hasn’t done anything inappropriate.
His snaps are him working.
Which I’m tipping everyone gets.11.34 am I DO NOT GIVE A FUCK. WHILE IM IN COURT YOU SNAPPING THE FUCKHEAD. I DO NOT WANT TO BE WITH YOU
ANYMORE YOU GOT THAT?
11.38 am SLIPPERY LYING SNAKE 11.39 am Dog[59] [59] Exhibit 7, pp 693-697
25 June 2021
Time Accused Complainant 8.27 pm Thanks a lot for wrecking the night. Total disregard for anything I do
Shit in my face
On your phone all day and night and can’t reply
Sly as they come[60]
[60] Exhibit 7, p 816
30 June 2021
Time Accused Complainant 10.27 pm You’re a dog of a person Rebecca[61] [61] Exhibit 7, p 889
6 July 2021
Time Accused Complainant 8.03 pm Wtf. Shut up. You’re no support act at all. I’ve told you that over
Just a demanding woman
I have my priorities with my gold medals now Haha good one. You bitch You stole the gold from them but it’s time they get it back…I’m not going to be bullied by you anymore
I want to live with love and respect
Making me live out of a tub. Fuck off that’s love and respect 8.05 pm You’re a piece of work Omg I’ve given you everything Seriously FUCK OFF. That is the last straw
Shows exactly who you are
Even not coming to meet me in Melbs the other week yay shows the loser u really are
I actually feel sad for you
Here goes the bitch on a
pedastool [sic][62]
… 8.11 pm FUCK RIGHT OFF PLEASE!!!
This isn’t love. Stop fucking writing that!!!!
It’s all fucking bullshit
You love me and my clothes are on the doorstep
What a fucking joke
After all the pain and suffering I do love u … 8.14 pm You bitch … 8.16 pm You are a dog for that and I hate you actually love me but I know that’s a lie
You absolute fucking bitch. Could have easily just been a message what time are you home. But you wanted fucking drama from the get home.[63]
[62] Exhibit 7, 1001-1002
[63] Exhibit 7, 1007
Charge 5 - Persistent contravention of family violence intervention order Related Summary Offence Charge 11 – Commit indictable offence while on bail
44Between 8 July 2021 and 5 August 2021, the accused contravened the accused contravened the final IVO order numerous times by committing family violence, as shown in videos taken by the complainant on her mobile phone:
Date Time Accused to Complainant 18 July 2021 1.19 am ‘Bird brain’, ‘nuffy’[64] 1.38 am ‘Tit pics to everyone’, ‘Cheating’[65] 1.42 am ‘Everyone thinks you’re a loser’[66] 24 July 2021 7.27 pm ‘Fucking retard’, ‘Bet you’re getting banged tomorrow bitch. Tell your Rohan bitch. Shut your fucking mouth then. Shut up I actually fucking hate you. You’re a cunt of a person.’[67] 25 July 2021 12.17 pm ‘No one like you. You’re a lying cunt of a thing. Cpos
-all because of you Bec. Snitched to them. Snitching, crying loser, a dog, an idiot.’[68]
[64] Exhibit 24, List of Video Evidence, HUB 240, IMG_6445.
[65] Ibid, IMG_6446
[66] Ibid, IMG_6447
[67] Exhibit 25, List of video evidence, HUB 242, IMG_6524.
[68] Exhibit 26, List of video evidence, HUB 244, IMG_6529.
45Text messages between the accused and the complainant during this time are extensive. The accused committed family violence via text message on the following occasions:
14 July 2021
Time Accused Complainant 7.55 pm You’re a true blue psycho.
Screenshot and show me the message you sent that to Sam.
… 8.13 pm I’m actually at hate stage with you. Cannot believe you fucked a perfectly good night. You just tell me what I have to say and I fucking will. You are
crazy[69]
[69] Exhibit 7, 1053
17 July 2021
Date Accused Complainant 7.11 pm Where are you!! Can’t be bothered coming home if U wanna fight Where are you right now 7.12 pm ???? 7. 13 pm You snake
Up to no good no doubt while I’m home cooking dinner
7.16 pm Why aren’t you answering??? 7.17 pm Where the hell are you? 7.19 pm At mums why So I just chuck your dinner to the dogs?
You lying cheating snake
No you are fucking not
Went to Yvonnes house
Had nibble at theirs
Snake What
What is wrong with u
7.20 pm Fuck right off
You are
Excuse me You’re a controlling bitch is what you are
Run me down a little more while you’re at it
Couldn’t answer your phone….But you ring and flip out at me for being with friends
That’s bullshit 7.21 pm I just don’t believe you were there either I have no idea where you’ve been all day You’re a controlling nutjob … You hung out with your fucking ex-husband and told me you would be home at 4 for a fucking walk
Fuck you I’m not cleaning a thing
Yeah u told me no chance
Fuck off Bec[70] … 7.38 pm Just asked did you bet You avoid messaging back and not answering your phone usually means you’re up to no good
Wanna start with this shit do you
Nah can’t be bothered I’ll be home soon 7.39 pm I can’t either. You snake
No answer again
7.40 pm ????????
…
Open your snap
…. 7.43 pm Answer the fucking phone or snap me back then!!!!!! Why You’re still at the farm aren’t you I will be home soon 7.44 pm Where the fuck are you This has all but finished us
You cheat
Oh You know what this just brings up every little secret and story I know about you. Never were
going to change
How dare u 7.46 pm
No actually fuck you. All I think with this behaviour is you getting bent over somewhere. I mean it’s what we used to do. Well done playing your little fucking games
Hiding where you are
You liar
And u want to behave like this
U never come home to me
I mean that. Can’t snap me where you are 7.47 pm
I never know where u are
And won’t tell me
All good, We never getting better ever
I’m be remembering this
Enjoy whatever you’re doing [snake emoji]
… 7.49 pm
Snap me back where you are right now or I’m done
… Don’t threaten me 7.50 pm
I mean that. I am at the point I don’t want to touch you because I’m overthinking what you are up to
Sneaky and lies
….
7.51 pm
Snap me to show me you’re at your mums
You might think this is fun and
games
Don’t you dare[71] … 7.58 pm
Why no snap of your mums or yvonnes place? Nah I haven’t actually
Anyway no doubt slagging me off and prob ring the cops or somtehitm when you get gone Home
Have a shower if you smell like sex. And if you’re digging me to anyone with me saying this make sure you tel them
what I know
Is that another threat Nah not at all. You play your little threat game snitch No games … 8.09 pm Where are you Bec?
Dinner is fucking ready you asked me to cook and what you’re just not coming home You’re little games are just totalling us
You’re an A grade clown Bec
… 8.32pm Where are you Bec I might call into a friends and have a wine is that ok Where have you been All good I’m heading out. Catch ya my phone will be off
[snake emoji].[72]
[70] Exhibit 7, 1102-1105
[71] Exhibit 7, 1102-1115
[72] Exhibit 7, p 1119
25 July 2022
Time Accused Complainant 9.04 pm[73] We are at Amy’s So you made me go stay somewhere so you could get on the piss. Massive stuff you. Don’t fucking message me
All lies
I thought I was bringing the kids home [tear emoji] You were never going to get them
Bullshit
All fucking lies. Catch ya
Wtf … Yeah you’re right I’m on the most uncomfortable couch to fucking sleep on because you wanted to go get on the piss So actually I really don’t give a
shit right now
I was bringing home my kids
That’s fine
9.07 pm Whatever. Lies lies lies … 9.17 pm
I’m tipping not at Amy’s at all
…. 9.20 pm
Intending to stay the night there or something
Or just putting fresh sheets on
your bed for a visitor[74][73] Exhibit 7, p 1289-
[74] Exhibit 7, p 1291
Charge 6 – Persistent contravention of family violence intervention order
Related Summary Offence Charge 11 – Commit indictable offence while on bail continued
6 August 2021 incident
46On 6 August 2021 the complainant went for a walk on the beach. The accused contacted the complainant via multiple text message between 3.24 pm and 4.02 pm asking where she was.[75] He accused her of having sex with someone at the beach. He continued to message her to try to find out where she was.[76] She sent him a photo of the beach she was at.[77] He continued to accuse her of being there to meet someone.
[75] Unger, 29 August 2021, HUB 88 [52]. Exhibit 7, pp
[76] Exhibit 7, HUB 1692.
[77]Rebecca Unger, 29 August 2021, HUB 88 [53].
47He later drove past the complainant in his car and stuck his middle finger up at her.[78]
[78] Unger, 29 August 2021, HUB 88 [53].
48The accused continued to send multiple text messages from 6.20 pm until the complainant arrived home at around 9 pm.[79] The accused demanded proof that the complainant was home. He continued to accuse her of cheating on him with other people.[80]
[79] Unger, 29 August 2021, HUB 88 [54]. Exhibit 7, pp 1679 -
[80] Exhibit 7, p 1692.
49The accused went to the complainant’s house and the two of them watched television together.[81] The accused started to get annoyed at the complainant because she was on her mobile phone and he accused her of cheating, saying she must be messaging guys.[82]
[81] Unger, 29 August 2021, HUB 88 [56]
[82] Unger, 29 August 2021, HUB 88 [56].
50They verbally argued.[83] The accused got up at one stage and when he sat back down on the couch, he said to her, ‘I just want to shoot you in the fucking head’.[84]
[83] Unger, 29 August 2021, HUB 88 [56].
[84] Unger, 29 August 2021, HUB 88 [56].
Related Summary Offence Charge 48 – Contravention of family violence intervention order
51The complainant activated her mobile phone camera and confronted the accused about the threats he had just made. In the video, the accused denied the allegation and told the complainant he hates her guts and that he hopes she is hit by a truck.[85]
[85] Unger, 29 August 2021, HUB 88 [56]. Mobile phone recording of incident, Exhibit 27 IMG_0483.
52During this argument the accused spat on the complainant’s chest while accusing her of cheating. The saliva landed on the complainant’s chest area, on her jumper.[86]
[86] Unger, 29 August 2021, HUB 88 [57].
Related Summary offence Charge 18 – Unlawful assault
53Later that night, the complainant films the accused leaning over her saying “You know how much you say you don’t want to lose me, I hate you so much of anyone on this earth, you know what of even anyone I’ve ever had fights with, I hate you so much” before grabbing her phone.[87]
[87] Unger, 29 August 2021, HUB 89 [57]. Mobile Phone Recording of Incident: Exhibit 27, IMG_0481.
7 August 2021 incident
54On the 7th of August 2021 the accused sent the complainant a message asking who she was with.[88] They exchanged messages. The complainant had to name who she was with. She was accused of cheating on the accused and talking to the police.[89] The accused calls the complainant a ‘sneaky head fuck’, ‘psycho witch’, and an ‘emotional piss wreck’.[90]
[88] Unger, 29 August 2021, HUB [58].
[89] Unger, 29 August 2021, HUB 89 [58].
[90] Exhibit 7, p 1720.
55The complainant got home at approximately 3 pm with Melanie Wylie[91], a friend of hers.
[91] A pseudonym
56Not long after they got there the accused also arrived at the address. The accused became angry and was yelling in front of the complainant and Ms Wylie. Ms Wylie left not long afterwards.[92]
[92] Unger, 29 August 2021, HUB 89 [59].
57A neighbour, Samantha Ryrie[93], attended a short time later and spoke with the complainant.[94] At approximately 5:30 pm the accused messaged the complainant demanding that she “wrap it up” with Ms Ryrie and threatening to leave if the complainant did not ask Ms Ryrie to leave.[95]
[93] A pseudonym
[94] Unger, 29 August 2021, HUB 90 [61].
[95] Unger, 29 August 2021, HUB 90 [62]. Exhibit 7, p 1725 to 1726.
58After Ms Ryrie left, the accused and the complainant watched television. Both of them each had a couple of glasses of wine. The complainant was using her mobile phone at one end of the couch and the accused was using his phone at the other end. The accused said to the complainant “who the fuck are you talking to”. The complainant explained it was just friends before the accused said, “no you are just a cheat” and “I know 100 percent that you are cheating on me”.[96] The complainant continued to deny the allegation of cheating.[97]
[96] Unger, 29 August 2021, HUB 90 [63].
[97]Unger, 29 August 2021, HUB 90 [63].
59The accused got up from the couch and continued to harass the complainant by saying “you’re a slut, you will fuck anything”. The complainant remained seated on the couch with her legs resting on the footrest and bent at the knees. The accused then approached the complainant from her left side and leant over her. The accused came right up to the complainant’s face and said “you’re a filthy slut” before moving his head down toward the complainant’s pelvic region and spat four times directly onto the complainant’s pelvic area. The complainant was wearing black pants at the time.[98]
[98] Unger, 29 August 2021, HUB 90 [64].
Charge 7 – Contravention of order intending to cause harm or fear for safety
60A short time later, the complainant started filming. She says to the accused, “you just spat all over my vagina”, “you spat on my vagina and then, look you can even see it”
61The accused says “fuck off bitch, you won’t let me anywhere near it”.[99]
[99] Exhibit 28 IMG_0512.
62Later that evening the accused became upset about the complainant using her mobile phone. The complainant was sitting on the couch. The accused was upset about the complainant using her phone and cheating on him.[100] The accused got up and launched toward the complainant, and swung his right hand at her, hitting her directly in the face. The accused’s hand was open when he struck the complainant. The accused immediately said “sorry, sorry, sorry”.[101]
[100] Unger, 29 August 2021, HUB 91 [66]
[101] Unger, 29 August 2021, HUB 91 [66].
Related Summary Offence Charge 26 – Unlawful assault
63The accused started hitting himself on the head with a candle holder. When the complainant asked what he was doing he told her the neighbours would have heard and he couldn’t say that he hurt her so he needed to make it seem like she had attacked him. [102] The accused went out to the front of the house to sit down on the porch.
[102] Unger, 29 August 2021, HUB 91 [67].
64The complainant went to the toilet before going to bed. The accused followed her holding a medium sized kitchen knife in his right fist. The accused stood about half a meter away from the complainant and shook the knife in the air while screaming “look at what you made me do”. The accused then turned the knife towards his own arm and said “look at what you are making me do”.[103] The complainant was petrified when the accused came into the bathroom with the knife.
[103] Unger, 29 August 2021, HUB 92 [69].
Charge 7 – Contravention of order intending to cause harm or fear for safety continued
65The accused then walked away from the bathroom and was still screaming at the complainant. The complainant began filming on her mobile phone.[104]
[104] Exhibit 28
66The video shows the floor of the bathroom. The accused can be heard yelling “you’ve sent me there”. The complainant replied, “what do you mean?” before the accused said “you’ve sent me…. Fucking kill myself”. The complainant then said, “don’t be so stupid.” The accused then said, “I’m not kidding now”. The complainant said under her breath “you’re crazy” before the accused said “I just hate you so much ... I never met you”.[105]
[105] Exhibit 28 – IMG_0528.
67The accused later left the house in his vehicle.[106] The accused sent the complainant text messages accusing her of calling the police and pretending that he had been intercepted.[107] The accused called the complainant a ‘dog’, an ‘absolute arsehole’, a ‘cheat’, and a ‘snake’. He also tells the complainant he hates her.[108]
[106] Unger, 29 August 2021, HUB 93 [73].
[107] Unger, 29 August 2021, HUB 93 [73]. Exhibit 7, p 1728.
[108] Exhibit 7, pp 1728-1729.
68At 12.17 am on 8 August 2021 the complainant sent several photos and text messages to Ms Ryrie . The messages refer to the accused bringing a knife into the toilet, punching the complainant on the nose, calling her a slut and being rough with her. They also refer to the accused making the complainant hang up on a 000 call.[109]
[109] Text messages between Ryrie and Unger, Exhibit 2, HUB 171.
69In the morning Ms Ryrie ’s daughter called the police.
70At approximately 9:30AM, police attended the complainant’s address. The accused told the complainant to tell the police everything was okay.[110] Police attended and asked the complainant about what happened. The complainant denied anything had happened over night and stated she did not want police involvement in her relationship with the accused.[111]
[110] Unger, 29 August 2021, HUB 93 [76].
[111] Leading Senior Constable Jenny Laughton, 19 December 2021, p 2.
71Police left the address and both the accused and the complainant remained at the house.
Events of 9 August 2021
72On 9 August 2021 at approximately 3:30PM the complainant received a call from the accused, he told her that the police were looking for him at his mother’s address. The accused told the complainant to call the Warrnambool Police Station to find out why he was wanted.
73The complainant called the Warrnambool Police Station. The complainant spoke to Leading Senior Constable Laughton who informed the complainant that the accused needed to be spoken to about the incident from Saturday night, the 7th of August and that a neighbour had spoken to police.[112]
[112] Unger, 29 August 2021, HUB 94 [79]. Exhibit 7, pp 1733-1741.
74The complainant called the accused to tell him what the police had said. The accused told the complainant to go to the police station and make a statement that makes it sound better. He said it looks really bad for him. He told the complainant to tell the police that she tried to grab his phone and, when she did, she hit herself in the face with it.[113]
[113] Unger, 29 August 2021, HUB 94 [80].
75The accused and the complainant also exchanged text messages about the statement on 9 August 2021:
Time Accused Complainant 4.31 pm What they saying 4.43 pm Find out what Samantha gave
them
She hasn’t replied 4.44 pm I will go to station after u have sorted it
No point me going right now
Be better if you went before I
think
4.49 pm Ok I’ll get changed and come in x 4.53 pm Ok x
I love you sorry. Just I’m that rattled
Did she send messages?
4.58 pm No 4.59 pm So didn’t give them messages or show them? I can’t sound bad at all babe. They heard yelling doesn’t mean it was
me?
5.02 pm Sorry she hasn’t replied …
5.20 pm Just don’t go in.
You don’t understand what this has all done to me. I really don’t want to be here anymore
I’m going in ok
So much for a good night together [teary emoji]
…. 5.24 pm I told Emma house how we changing things to make it better
And she said good
Tel the police that …. 5.26 pm What are you going to say about messages to Samantha … 5.27 pm This is gunna be fucked Just say I over reacted and Mayo it And knife? What shld I say about that? 5.28 pm What time did you send that Because I was cutting up veggies and not like it held it
to you
5.30 pm I rolled her that’s about 12.20
But I said when I had went to toilet So wasn’t at that time
I don’t think they can use the text
messages[114]
[114] Exhibit 7, pp 1733-1737
Charge 8 – Attempting to pervert the course of justice
Related Summary Offence Charge 24 – Commit indictable offence while on bail
76At approximately 6.30PM the complainant attended the Warrnambool Police Station and spoke to Leading Senior Constable Laughton. The complainant provided a statement in which disclosed information in line with what the accused told her to say. The complainant stated that she hit herself in the face when attempting grab the accused’s phone and that she could not be sure if the accused was holding a knife because it was dark.[115]
[115] Rebecca Unger, 9 August 2021, Exhibit 45.
77The complainant confirms now that this is in fact false and that she only provided this statement to police because of the pressure she felt from the accused to protect him and that she had no choice but to do so.[116]
[116] Unger, 29 August 2021, HUB 95 [82].
Incident on 13 January 2022
78On 13 January 2022, the accused contacted the complainant via Snapchat. The text message exchange read:
Accused Complainant 'I’m not turning it back on you. You really need to understand its not you in trouble I need to
lessen what I am in
How’s this fcking [sic] Andy is on sick leave now and they don’t know when he will be back Well outline in an email exactly what you want babe and for them to get onto it ASAP
If that’s what you want
Not even the Sargent [sic] is there Wtf. Just tell them to get someone on to it ASAP.
Covid I bet
Related Summary Offence Charge 16 - Contravention of family violence intervention order
Related Summary Offence Charge 17 - Contravene conduct condition of bail
Record of Interview
79The accused was arrested and interviewed on 9 August 2021[117] in relation to the allegations from 7-8 August 2021. He gave the following responses:
[117] Exhibit 47
(a) A17-20 – She invited me over to come and stay the night. Obviously we’ve been having a few troubles and I was staying at a friend’s house and she invited me, yeah to come over.
(b) A21 – The long and short of it, we were sort of watching some TV. And I’ve probably had a few gambling issues and a few-yeah, that might be the start of it.
(c) A24 – She went to grab the phone off me. I didn’t realise that…as I let go of the phone she’s just – I’ve made contact with her head.
(d) Q&A 26 – have you spoken to Bec before this interview started? Yeah, I have.
(e) Q&A 28 – did you discuss what you were going to say in the interview? Yeah
(f) A29 – Well we just sort of said what we were – what was going forward…what we were going to do with our lives and moving forward
(g) Q58 – So after the incident with the knife what’s happened? A 60 – It got – I was more crying, I guess, upset
(h) Q94 did you take a knife down the hallway? Nuh, na
(i) A95 – I might’ve had a T remote or something in my hand
(j) Q100 – did you threaten to kill yourself? No. I said ‘well its – this is killing me’
(k) A103 – did you take a knife down towards the toilet where she was--? No
(l) How much he drank on Saturday night – A123 over the whole night I was – yeah, had a glass and probably not even a half, like of wine, white wine
(m) A180 – like I love Bec…A181 like I want be with her and I’ve gotta clean my life up
(n) Q200 [asked about delay between speaking to police and attending police station] Did you call up Rebecca on the phone and concoct a story? A No I didn’t concoct a story
(o) Q&A 247 – ‘Do you call her names’ – ‘not on Saturday night’
80The accused was interviewed again on 17 September 2021 and made ‘no comment’.
81The accused was interviewed again on 21 November 2022 and made ‘no comment’.
Criminal history
82The accused has relevant criminal history.
Victim impact
83A Victim impact statement will be prepared by the complainant Rebecca Unger.
Maximum penalties
84Maximum penalties for the offences are:
Attempt to pervert the course of justice – Level 2 Imprisonment (25 years maximum): s 320 Crimes Act 1958
Threat to Kill – Level 5 Imprisonment (10 years maximum): section 20 Crimes Act 1958 Common law assault – Level 6 Imprisonment (5 years maximum): s 320 Crimes Act 1958
Contravene family violence intervention order intending to cause harm or fear for safety – Level 6 imprisonment (5 years maximum) or a Level 6 fine (600 penalty units maximum) or both: s 123A Family Violence Protection Act 2008.
Persistent contravention of family violence intervention order – Level 6 imprisonment (5 years maximum) or a Level 6 fine (600 penalty units maximum) or both: s 125A Family Violence Protection Act 2008
Unlawful assault – 15 penalty units or imprisonment for 3 months: s 23 Summary Offences Act 1966.
Contravene family violence intervention order – Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both: s 123(2) Family Violence Protection Act 2008.
Commit indictable offence while on bail – 30 penalty units or 3 months imprisonment: s 30B Bail Act 1977.
Contravene conduct conditions of bail - 30 penalty units or 3 months imprisonment: s 30A Bail Act 1977.
Pre-sentence detention
85To be confirmed upon the listing of the Plea Hearing.
Co-accused status
86There are no co-accused.
Timing of the guilty plea
87The accused entered pleas of guilty on 28 March 2023 prior to witnesses being called to give evidence at the contested committal hearing.
Section 6AAA declaration
88Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), where the Court imposes a term of imprisonment or a fine exceeding 10 penalty units ($1,817.40), that Court must also state the sentence and non-parole period (if any) that it would have imposed but for the plea of guilty.
Sentencing Act 1991 (‘the Act’) regimes
89The serious offender regime pursuant to Part 2A of the Act does not apply. Charge 1 – Make threat to kill is a ‘serious violent offence’ however the accused is not a ‘serious violent offender’ for the purposes of this regime.
90The standard sentencing regime does not apply to any offences to which the accused is pleading guilty.
91The accused does not fall to be sentenced for any Category 1 or 2 offences for the purposes of ss5(2G) and 5(2H) of the Act.
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