Director of Public Prosecutions v Corbitt (a pseudonym)

[2023] VCC 2416

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELTON CORBITT (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2023
DATE OF SENTENCE:	8 December 2023
CASE MAY BE CITED AS:	DPP v Corbitt (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2416

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea

Catchwords:              Sentencing – contravene an intervention order intending to cause harm or fear for safety – causing injury recklessly – common assault – causing injury intentionally – make a threat to kill – contravene a family violence intervention order – home invasion – theft of a motor vehicle – persistent and repeated abuse against victim in family violence matter – moderate to high moral culpability in home invasion matter – relevant criminal history involving violence – substance abuse disorder – post traumatic stress disorder resulting from prison assault – need for ongoing drug treatment – reasonable prospects of rehabilitation – plea has utilitarian value

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:Total effective sentence 5 years 11 months imprisonment with a non-parole period of 3 years 5 months; 270 days reckoned as already served; 6AAA: 7 years 9 months imprisonment with a non-parole period of 4 years 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Davison	Office of Public Prosecutions
For Accused	Mr C. Mylonas	Robyn Greensill & Associates

HIS HONOUR:

1Elton Corbitt,[1] you have pleaded guilty to charges on two indictments.

[1] A pseudonym.

2On the first indictment, N11430788, the charges are of contravening an intervention order intending to cause harm or fear for safety (4 charges), causing injury recklessly (2 charges), common assault (2 charges), causing injury intentionally and making a threat to kill. There is also a summary charge of contravening a family violence intervention order, all occurring between May and July 2022.

3On the second indictment, C2215510.1, the charges are of home invasion, causing injury intentionally and theft of a motor vehicle (two charges) all committed with Todd Mitchell on 4 July 2022.

First indictment

4On the first indictment, the agreed basis of your plea is set out in the prosecution opening dated 16 October 2023.

5In summary, at the time of the offending, you had been in a relationship with the complainant, Paige Minnick,[2] for about 8 months. You had no children together; however, she had two young children from a previous relationship. There was a Family Violence Intervention Order in place protecting her and the children from you.

[2] A pseudonym.

6In November 2021, you were released from custody after serving a term of imprisonment for assaulting her. Despite the Intervention Order, you contacted her and the two of you rekindled your relationship. At around Christmas 2021, you were living with her and the children at her Mildura address.

7In early May 2022, you and Ms Minnick were walking home from a pokies venue when you got into a heated argument. You became enraged and punched her in the face. Ms Minnick suffered a fractured jaw and extreme pain over the following weeks and months. She was terrified of what you would do to her, so she avoided medical treatment (Charge 1 – contravention of order intending to cause harm or fear for safety; Charge 2 – causing injury recklessly).

8On 5 June 2022, you got into another argument at home. Ms Minnck feared that you would assault her, so she ran outside. You followed her, picked up a metal chair and threw it at her. It hit her, causing pain to her back and ribs. She retreated but you followed her and punched her in the ribs. She suffered three broken ribs as a result (Charge 3 – contravention of order intending to cause harm or fear for safety; Charge 5 – causing injury intentionally).

9You also picked up a large wheelie bin and threatened to throw it at her. You grabbed her by her hair, at the back of her head, and dragged her inside (Charge 4 – common law assault).

10One evening between 20 June 2022 and 5 July 2022 you were at home when you became aggravated and cornered the complainant in the kitchen. You punched her in the face, causing bruising, swelling and soreness (Charge 6 – contravention of order intending to cause harm or fear for safety; Charge 7 – causing injury recklessly).

11On 29 June 2022 you got into an argument with visitors at the front of the home and after punching a panel on the vehicle, you walked back towards the house. As you passed Ms Minnick you lunged at her, drawing back your fist causing her to cower in fear (Charge 8 – contravention of order intending to cause harm or fear, Charge 9 – common law assault).

12On 5 July 2022 Ms Minnick’s sister contacted police for her. Ms Minnick presented to police with bruising, swelling and soreness, and the next day they took her to the Mildura Hospital. There, she was treated for a fractured jaw, misaligned teeth and three fractured ribs, all of which you caused.

13During your relationship, I find your conduct was controlling and caused the complainant to be isolated and afraid.

14During the period of 1 June – 5 July 2022, you threatened to kill her while holding a knife (Charge 10 – threat to kill). You also choked her causing her eyes to roll back and her vision to go dark (Charge 11 – contravention of order intending to cause harm or fear). You tormented, manipulated, and controlled her, resulting in her being isolated and afraid (Summary Charge 27 – contravention of family violence intervention order).

Second indictment

15On the second indictment, the agreed basis for your plea is set out in the prosecution opening dated 12 October 2023.

16The offending arose in the context of a dispute between an associate of yours, Paul Smith and one Aaron Hunt. They had purchased a vehicle to 'fix up' and had a falling-out over it and the money spent on it. Smith had begun badmouthing and threatening Hunt.

17On 4 July 2022 at about 9:20 pm, you, Mitchell, Smith, and one Adam Taylor and two unknown men gathered at your then partner's house in Mildura. You, Smith and Mitchell discussed how you would go to Hunt's home to recover the debt of $5,000 over the car that Smith said Hunt owed him. You and Mitchell changed clothes to conceal your identity and you gave Taylor a mask to wear.

18At about 10:10 pm that night, you and Smith and Mitchell arrived at Hunt's address on Wilga Avenue. Taylor arrived a little later separately.

19Smith kicked open the front door. You and Mitchell entered and ran toward Hunt (Charge 1 – Home Invasion). Smith was unmasked, but you and Mitchell were wearing face coverings. Taylor entered later wearing the clown mask you had given him.

20You, Smith and Mitchell pushed Hunt into a hallway and began punching him in the head and face while demanding he give you his keys, money and phone (Charge 2 – causing injury intentionally).

21One of you grabbed a baseball bat and hit him over the head several times. You grabbed a 'cap gun' and Mitchell grabbed a fishing knife. Smith grabbed a claw hammer, threatened to smash and kill Hunt, whilst searching for items to steal.

22Mitchell held the fishing knife at Hunt and demanded money. During the assault, Hunt's phone and wallet containing his bank key card and driver licence were taken from him.

23You moved from room to room, filling up a suitcase with various household items including electronics, money, and a hunting kit. At 10:25 pm, Smith loaded this suitcase into a blue Holden vehicle belonging to Hunt, which was in the driveway.

24Mitchell held a knife to Hunt and threatened him, requiring him to assist you to take other cars. You and Mitchell then got into a black Holden parked in the yard. You got a battery from the shed and managed to get the vehicle started.

25Smith drove off in the blue Holden and you and Mitchell drove off in the black car (Charge 5: theft; Charge 6: theft).

26As a result of the incident, Hunt suffered numerous injuries including a bloody nose, cuts to his eyes, significant bruising to both eyes and substantial pain.

27He has not provided a victim impact statement. However, it is obvious that on the prosecution case he would have been terrified by what happened and that the impact of this day is likely to stay with him for a long term.

Procedural history

28Police arrested you on 9 July 2022 and interviewed you about both sets of offences.

29In relation to the first indictment, you gave an accurate account in some answers and a mixture of half-truths and lies in others. Notably that your ex-partner's black eye was a result of a fight with another girl and that her sore ribs were from being kicked by a sheep while she was shearing.

30On the second indictment, you told police that the whole incident was Smith's doing. You minimised if not denied having any role in the home invasion and assault. You admitted starting and driving away a car effectively under Smith's direction.

31You were remanded in custody, where you have remained since.

32You were committed on both matters on 21 December 2022. Your counsel did not cross-examine any witnesses in relation to the home invasion. He did, however, cross-examine an expert witness about the nature and extent of your ex-partner's injuries relating to the first indictment, which I find to have been warranted and involved no involvement of the complainant.

33Following a case conference before me on 15 June 2023, you settled the charges on the second indictment. You then settled the matters on the first indictment on 13 October 2023.

34I accept your pleas represent an acceptance of responsibility for your offending, a willingness to cooperate with the course of justice and that it is to some extent an expression of remorse.

Personal circumstances

35You grew up in Dubbo, New South Wales with your mother and father and siblings. Your parents separated when you were 5. Your father abused alcohol and your mother was addicted to drugs. They were violent at home, including around you.

36From about age 7, you lived with your father and stepmother. There was further violence in that home. At 18 you returned to live with your mother and began smoking methylamphetamine.

37You displayed notable talent as a rugby player and a career path opened up for you with a major New South Wales team. Sadly, however, this fell away due to your drug use. By age 25 your ice use had escalated, and you had begun injecting it regularly.

38Your formative years were challenging for you, and they undoubtedly affected your development, contributing to your addictive behaviours that started in your teens.

39In this context, you have a relevant criminal history involving causing injury and thefts since your mid-20s. Your history is relevant, but only moderately serious and is not reflective of a high degree of criminality. It emphasises though your need for in-depth and ongoing drug treatment.

40Since being remanded in July 2022, you have spent your time at the Metropolitan Remand Centre and Port Phillip Prison.

41On 24 April 2023 while at Port Phillip you were victim of a stabbing and subsequently admitted to the prison Emergency Ward for two days. Upon discharge you were moved to the MRC where you have served remand since.

42During your time in custody, you have completed a 6-hour program about the effects of 'ice' and started and completed other counselling on that topic (Exhibit 2). I was told that you have also engaged in courses and have now received certificates in relation to courses on relationships, parenting, respect towards others and employment programs, including Certificate II in horticulture, occupational health and safety and traffic management. I accept that you have made concerted efforts towards your rehabilitation (Exhibit 4).

43Psychologist Bernard Healey assessed you in 2022 and provided a report dated 5 November 2022 (Exhibit 1). He stated that in light of your chronic intravenous use of ice from 25 your drug abuse around the time of your offending was at a disordered level. He observed that, prior to your remand, your drug use probably caused psychotic symptoms and acute feelings of worthlessness and apathy, each of which lingered over your initial period in custody. He tested your intellect, which he found to be in the high average range.

44More recently, the psychologist assessed you again and made an updated report dated 1 November 2023 (Exhibit 3). He reported that the prison assault on you has left you with symptoms of Post Traumatic Stress Disorder and an appreciation of how vulnerable life can be.

45He also stated that while, given your history, you still have a drug abuse disorder, your abstinence from drugs, for which you get credit, has resulted in a significant reduction in your depressive and psychotic symptoms.

46As to your risk of future offending, the psychologist stated that you have a high level of protective factors, which favour your rehabilitation. They include your intellect, empathy, motivation for treatment, and contact with a former partner and two children, aged 8 and 9, whom you see during weekly zoom sessions. Your former partner is prepared to re-establish a relationship with you upon release and live with you I am told in Dubbo, or perhaps in Victoria where you have been offered work shearing.

Sentencing

47The maximum penalty for home invasion is 25 years' imprisonment; for intentionally causing injury 10 years; for theft 10 years; for a threat to kill 10 years; for causing injury recklessly 5 years; for common law assault 5 years; for contravening an intervention order intending to cause harm or fear for safety 5 years; and for a summary breach of an intervention order 2 years.

48Your attacks on your ex-partner were cowardly acts and they were repeated. They were all the more serious because they occurred during a relationship in which you belittled and controlled her through fear. Your persistent abuse of her only ended when police intervened.

49The home invasion is a category 2 offence under the Sentencing Act 1991 and requires me to impose an imprisonment term unless certain exceptions apply, and it is not suggested that they do.

50Home invasion attracts a high maximum penalty, consistent with its seriousness. Violently breaking into a person's home, in company with others, late at night, knowing he would be there, intending to confront him and intent on taking valuable items from him under threat is just terrifying. Doing so breaches a fundamental value in our community, that we are all entitled to be and feel safe in our homes.

51As to your role, you have admitted that you took part in the discussion when the plan was hatched to attack and steal from Mr Hunt. During the incident you wielded a cap gun to threaten him. I regard your moral culpability to be moderate to high in all the circumstances.

52Both of these sets of offences deserve clear denunciation and punishment. I must also impose a sentence on you that deters others from engaging in this kind of conduct. Given your history and other circumstances, I have attached some weight to deterring you specifically and to protecting the community from you, however I do not find that these factors have come to the fore.

53I find your prospects for rehabilitation to be somewhat guarded due to your significant history of ice use, but I am heartened by your efforts in custody in the courses you have done and by the protective factors the psychologist has found you to have. You have worked hard in custody despite the assault on you and this shows me that you should not lose hope. Your drug problem will require significant efforts on your part both now and when you are released. On this, I accept that you are developing insight into your history and how to change. That is a credit to you.  In all those circumstances I find the prospects for your rehabilitation to be reasonable.

54You have written a letter to the court expressing your shame at what you did (Exhibit 5). This is an entirely appropriate attitude to have about it, if I might say. The intentions you have expressed are positive and if you are able to follow through with them, then this will further bolster your prospects.

55As to the structure of your sentence, I will order a degree of concurrency in sentencing you for the assaults on your ex-partner due to the common features of those incidents, but that commonality does tend to make each of your acts more serious.

56Similarly, I will order a degree of concurrency on your conduct against Mr Hunt, your actions all forming different aspects of a single episode.

57Your counsel conceded on your behalf that a term of imprisonment was warranted but that in the near future a release on a community corrections order would be appropriate. The prosecutor submitted that a term of imprisonment attracting a parole period was necessary in light of the seriousness of the combined case, which submission I accept.

58In considering your situation compared to Mr Mitchell, I find your actions in your joint offending with him, your culpability for it and your criminal histories to be similar. So, I will impose on you the same sentence I did on him for that incident.

59I have had regard to the fact that during your time on remand, you have served a sentence of 9 months and that I can no longer order any concurrency with respect to that sentence. So, I have adjusted my orders for cumulation in this matter in accordance with the principle of totality.

60On the first indictment, I sentence you as follows, if you would not mind standing:

(a)   On Charges 1 and 2, relating to the broken jaw - 12 months (aggregate);

(b)   On Charges 3, 4 and 5, the incident about the broken ribs - 18 months (aggregate);

(c)   On Charges 6 and 7 - 10 months (aggregate);

(d)   On Charges 8 and 9 - 2 months (aggregate);

(e)   On Charge 10, threat to kill - 3 months;

(f)    On Charge 11, 8 months;

(g)   On the related summary Charge 27 - 2 months.

61Four months of the aggregate sentence on Charges 1 and 2 and three months of the aggregate sentence on 6 and 7 are to be served cumulatively upon each other and upon the aggregate sentence on Charges 3, 4 and 5, making a total sentence on the first indictment of 2 years 1 month.

62On the second indictment, I sentence you as follows:

(a)   On Charge 1, home invasion – 4 years 3 months;

(b)   On Charge 2, intentionally causing injury – 1 year 10 months;

(c)   On Charge 5, theft of a motor vehicle – 6 months; and

(d)   On Charge 6, theft of a motor vehicle – 8 months.

63Seven months of the sentence on Charge 2 and 3 months of the sentence on Charge 6 are to be served cumulatively upon each other and the sentence on Charge 1, making a total sentence on the second indictment of 5 years 1 month.

64Ten months only of the sentence on the first indictment is to be served cumulatively upon the sentence on the second indictment.

65The total effective sentence of all matters before me is 5 years 11 months.

66I fix a non-parole period of 3 years 5 months.

67I declare that you have served 270 days on these matters, and direct that this be reckoned as a period already served under this sentence.

68In accordance with section 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed 7 years 9 months and fixed a non-parole period of 4 years 9 months.

Ancillary orders

69I make the unopposed disposal order.

70In accordance with section 89(4) of the Sentencing Act 1991, on Charges 5 and 6 on the second indictment, your licence to drive is cancelled, and you are disqualified from driving for 3 months. That period will end well before your release so you will be able to get your licence back when you get out. You can take a seat.

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