Director of Public Prosecutions v Corp
[2018] VCC 2289
•13 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 16-02155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CORP |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2018 | |
DATE OF SENTENCE: | 13 November 2018 | |
CASE MAY BE CITED AS: | DPP v Corp | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2289 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Causing injury recklessly (6 charges) |
| Cases Cited: | R v Short [2006] VSCA 120; DPP vMckay [2018] VSCA 292; Pasinis v The Queen [2014] VSCA 97. |
| Sentence: | Convicted and sentenced to 3 years’ imprisonment with a minimum term to be served before being eligible for parole of 3 years’ imprisonment. |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Lew | Office of Public Prosecutions |
| For the Accused | Mr J Lavery | Tony Hannebery Lawyers |
HIS HONOUR:
1 Mr Corp is aged 35, at the time of this offending he was aged 32, having been born on 11 July 1983. He pleaded guilty to six charges of causing injury recklessly to Candice Lee Kepping in indictment No.G10692789.1, all charges are offences against s.18 of the Crimes Act, for which the maximum penalty prescribed is five years imprisonment.
2 Exhibit A was accepted by Mr Lavery as the facts upon which I am to sentence you, Mr Corp. There were six different incidents in regard to that relationship with Ms Kepping between 8 January 2016 and 7 March 2016. The complainant at the time was aged 23. She had mental issues, in particular suffering from a bipolar syndrome and a personality disorder. You had known each other, and the relationship actually began in July of 2015.
3 From September/October of 2015 you lived together at your house at Greaves Street, North Werribee. As described in the summary, to say the least, the relationship was tumultuous. There were numerous separations, as part of that relationship assaults by you upon Ms Kepping began in September 2015. The police are involved from October of 2015, and they attended on six occasions between 20 October 2015 and 7 March 2016. During that period the victim never advised the police of the extent of your assaults upon her because of her fear of you. Just to complete this sombre picture, both you and your victim were daily partaking of the drug ice.
4 The plea before this Court involved the following behaviour which is set out at paragraphs 8 to 34 of Exhibit A. The first charge of recklessly cause injury involved you hitting Ms Kepping to the head with a spanner. Despite the bleeding that that caused, she did not go to hospital upon your advice.
5 The second charge involved you, following an argument in the garage, stabbing her to the right thigh with a knife. That required you to take her to the hospital when a false story was told. She maintained the false story for the reason which I have already said. Ultimately, at the local medical centre the next day the laceration was sutured, and the results of that injury are detailed at photographs 11 and 14.
6 The third charge again emanated out of an argument over activites that were being performed within the house. That led to her fleeing from the house. That led to you, in public, kicking her on the ground to the arms, legs and torso. She was screaming as a result of the assaults that you perpetrated upon her and fortunately good Samaritans in the street came to assist. You tried to indicate that you hadn't touched her and to use the words of one of those good Samaritans:
"Mate, I seen what you did, you were over the top of her with your hand on her."
Again, there was no attendance by the police, although ultimately the Samaritans drove her to the police station to report the incident. There was an intervention order granted.
7
You at the time were seen to be outside the police station while she was making her statement. Remarkably she was then released, as a refuge wasn't able to be found for her. She said she would go to the train station with a friend and, of course, when she left she was in a taxi and she was returned to live with you.
I make no criticism of the police, but obviously perhaps further steps should have been taken at that stage to get her into a refuge.
8 At that stage, after that incident, given your dominance of her, you took from her her mobile phone, learner's permit, bankcard and myki card, and you hid them.
9
The fourth charge involved you, somewhere between Monday
29 February 2016 and Sunday 6 March 2016, again while you were subject to ice being involved in an argument, to use the words of the summary, you “snapped” and physically assaulted her by pulling her hair, twisting her skin, which was on her legs, and her fingers.
10 The fifth charge again emanated out of an argument, but this time you chose to assault her with a plank of wood. While she was trying to protect herself as you were hitting her, you hit her left arm causing her elbow to fracture. She decided finally to leave you on 6 March. She packed her belongings and went to stay at a friend's house. However, you again contacted her and effected a further reconciliation. That didn't last long because the next day charge 6 occurred, again there were further arguments. She attempted to again leave. You began punching her arms and kicking her body. You were grabbing her hair and again this occurred out in the street where members of the public saw what you were doing. As was remarked by one of the witnesses you were "full swing kicking” the woman. One of the witnesses, as a result of seeing what you did, did a U-turn and stopped his car. Ultimately a formal report was made in regard to these matters to the police station.
11 In your record of interview there were various excuses offered, however, fortunately you did say that at least now you knew that you didn't want her to come home, and finally at Question 845 that you regretted big time what you had done. That she had pushed you too far. That you did not mean it, but a hundred per cent it did happen. Consistent with that ultimately, a plea was entered to these charges on 15 May of this year. That was a negotiated plea, and I give you full value for that plea.
12 A new indictment was filed over in regard to these assaults. As I said the photos detailing all of the assaults are set out in Exhibit E. The medical information that was tendered firstly is the report of Dr Adrian Talia, Exhibit F. He is a medical practitioner at Western Health. He saw Ms Kepping on 6 March 2016 when she alleged assault by you, and presented with a left elbow injury which showed an undisplaced olecranon fracture. She was placed in plaster and treated post-operatively.
13 Dr Wai Ting Shau also reported on 10 March 2016, that is Exhibit G. He had seen her in the emergency review clinic on that day. He had noticed her right hand was twisted. Her left elbow was also injured. She was unable to extend her index finger fully at the distal interphalangeal joint and movement of the middle finger proximal interphalangeal joint was limited by pain. X-rays showed a minimal displaced fracture of the index finger distal phalanx base and an avulsion fracture of the middle finger middle phalanx base.
14 The final medical report is Exhibit D and that is a report from the Institute of Forensic Medicine prepared by Dr Mills, forensic medical officer. It has attached to it a number of photographs. It details the totality of the injuries and bruising inflicted by you to her body, the scar which has the suture marks from your stabbing of her, a series of abrasions on her thigh and numerous other general injuries. As I say those photographs are set out in that report.
15 As I said during the plea, fortunately, especially considering you were under the influence of ice, you did not kill her, and are not across the road on a murder charge. Fortuitously, despite the injuries you did inflict on her, there appears to be, but for psychological issues, limited ongoing physical issues suffered by your victim. However, her victim impact statement is of interest, Exhibit B.
16 She describes herself, the difficulties in her life during that time, the fact that she would drink every day and black out. As a result of the last assault you carried out upon her that:–
"My arms were in casts for months. I had a hand brace and finger braces. After that I had hand therapy and physiotherapy sessions. I still get pain now specifically in my fingers and elbow and I get pins and needles which are worse."
She has still difficulties with trusting people. Difficulties with feeling secure. Worrying about whether you are about. Needing to lock the house. Doing checks to see if you are around. She talks about the issues that happened when she was at the committal hearing. The over prescription on drugs as a result of that pressure. She says that as a result of the totality of the manner in which you treated her, she lost many friends:
"He didn't allow me to have any. As a result of him deactivating my social media accounts, breaking my phones I lost contact with a lot of people."
This is very indicative of a dominating relationship, which we unfortunately see far too often in these courts. She finally concludes:
"Because of him and what happened I feel like I've had to start, in many ways, my life all over again. I am constantly second and triple guessing myself."
17 The antecedents in regard to you, while not in any way to your credit are surprising. It seems that you have essentially reserved your crimes for your partners. You were, however, convicted of an assault which occurred in December 2007. I have read the remarks from Judge Allen in regard to that sentence. Your family spoke for you on that time, similar to your father lodging a letter today in regard to me. Despite the mercy shown to you by Judge Allen, you managed to disappoint both your family and him by being involved in further criminality. You also contravened a family violence order in October 2013.
18 In regard to these crimes, you were bailed in October 2016. While subsequent offending are not priors, it is of great concern that while you were on bail you then committed further, similar matters. Indeed, they were quite bizarre and they relate to a new partner, who apparently is still with you, remarkably. They occurred from January 2018 through to February 2018, for which you were sentenced to eight months jail with a community correction order. That sentence was subject to an appeal heard by me. Given the totality of the circumstances, I ordered the same period of imprisonment, albeit I didn't impose a community correction order. To a limited degree, I take into account that you have served that sentence.
19 The submission of the prosecutor was that the seriousness of this offending means that there was only one sentence that is appropriate, with which I totally agree. Mr Lavery realistically did not dispute that you must be sentenced to a period of immediate imprisonment, with a non-parole period.
20 Mr Lavery on your behalf tendered the report of Ms Cidoni which was Exhibit 1. That report gave me a full history, which had also been referred to by Judge Allen. It noted that from approximately July 2015, as I have already remarked, that you, and your victim were using ice heavily. Both became very paranoid. You subsequently, after these crimes, were bailed to live with your parents and undertake drug counselling, again unfortunately due to the impact of your addiction, bail was revoked because you'd relapsed at the start of 2018.
21 You had difficulties in regard to your education. You have however, worked fairly consistently in labouring type and truck driving jobs. Indeed, you have a particularly good reference from your employer. You've had difficulties, as I say, with drugs over many years and you've managed to use most of them. You've tried counselling, but that has not been successful. You, to use the words of Ms Cidoni, remain vulnerable to substance use, and have a medium risk of further criminality. Her opinion was that you are a reduced man. That your cognitive functioning is at a low average range. However, fortunately, given the amount of abuse, and drugs you put into your system, there doesn't appear to be at this stage, I might add, any cerebral dysfunction.
22 After you serve this sentence, if you come out Mr Corp and go out on drugs, it will not be long before you do have cerebral issues. Ms Cidoni’s conclusion was that you appear to have a substance intoxication and substance induced psychotic disorder, which seems to be an appropriate conclusion. The offending behaviour she describes is extreme, related to stimulant intoxication where your thinking was disturbed. There was no suggestion, by Mr Lavery, that there is any excuse proffered because of that, however it is an explanation given for this violent offending, that you were under the effect of drugs.
23
As Ms Cidoni says, continued drug use will exacerbate your symptoms. She noted you as a medium risk of further offending, that you are in need of
long-term treatment and support to achieve abstinence.
24 As I say, you had again, a strong supporting letter from your father which was tendered as Exhibit 2, and from Mr Skinner, from Faragalla Logistics, your employer.
25 There were some positives in regard to your attempt while in jail to take steps to get rid of the affliction that's been part of your life for far too long. There were tendered three urine samples taken randomly I'm told from over the period that which you have been in jail, April, July and August. Each of those showed a negative result.
26 There is also tendered as Exhibit 4 an achievement award insofar as an undertaking the, "Ice and me," program while in jail and there are also a number of prison references which speak positively of the steps you have taken, in particular at Ravenhall to try and turn about your life. I do not think I can stress how important it is for you. You might have dodged a bullet as I have already said, and not been involved in far more serious criminality than you were here.
27 Apparently, I am told that after you were originally sentenced by Judge Allen you did a course as a dental technician. You got a licence for heavy construction and earth moving work, however the problems with drug taking and its impact on you by way of relationships remained.
28 It was put on your behalf that there is, from those positive aspects in your life, hope that you can overcome your problems. You still have the support of your family. They have been here consistently during the plea and were here when I dealt with the appeal matter. Mr Lavery stressed the plea of guilty which I give full discount to. It was a negotiated plea for a new indictment and in those circumstances I accept that it was made at the earliest time possible. It was utilitarian in the sense that it saved your victim from being involved in the hearing.
29 It was put that, as set out in your record of interview, you do not dispute your criminality. It was submitted that by your plea, I should accept that you have shown remorse. The plea is clearly a matter than can be taken into account as a matter of remorse. Whether you have actually shown genuine remorse is a question to be seen. As Ms Cidoni says there are question marks as to the potential for you to rehabilitate. It all depends, of course, and I am not telling you anything you don’t know, on you getting rid of the affliction of drugs in your life.
30 One matter that was not put to me, and seems appropriate to take into account is that when a person who assaults women such as you have, there is a chance that prison life for you might be harder than it would otherwise be. As I say, remarkably not only have you got the support of your family, but also your current partner. She apparently has no drug issues and despite all of those matters she is still supporting you.
31
The sentencing of course, despite taking into account all those matters that
Mr Lavery has put to me, must, of course, take into account a number of concerning factors. One is your age at the time of your offending. Two, that despite being given a chance by this Court, you decided to continue with drugs in your life, and have continued issues with your partners. That, albeit they were not priors, while on bail for these charges, you then committed the subsequent crimes, for which I note you have already served the sentence and I take that matter into account.
32 But, of course, there are fundamental issues in regard to this case that must be balanced. Crimes such as this in our community, where vulnerable partners are assaulted, call for general deterrence. They call for appropriate punishment and protection of the vulnerable. While, of course, a much more serious charge, the Court of Appeal in giving a general principle comment insofar as a rape in marriage was concerned said in Short [2006] VSCA 120 [73] to [74], I make it clear, that case involved far more serious criminality than you've been involved in, however, the general principle I am about to read out applies to you. The Court of Appeal said this:
"Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons, must anticipate the imposition of substantial terms of imprisonment. The Courts, when dealing with such cases, must have regard to the vindication of the community's social values, pre-eminent amongst those which are the protection of the personal integrity and physical safety of its citizens."
33 As I referred to both counsel this morning, again in regard to crimes more serious than yours, that is, cases of causing, not injury recklessly, which you face, but causing serious injury recklessly, the Court of Appeal in McKay [2018] VSCA 292, endorsed those general principles. Again though, I make the point that I only put by way of analogy each of those cases for their general principle. Each of them involve far more serious crimes than you have committed.
34 As discussed during the plea, statements have been issued over time and, in particular, I referred to Pasinis [2014] VSCA 97, significantly the then Appeal Justice Neave made the following comment, she was the Royal Commissioner in the Family Violence Commission:
"General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are actually so enveloped by reporting to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to those who would be involved that they will be sentenced to lengthy periods of imprisonment so that they are no longer in a position to inflict such harm."
There are numerous similar sentiments calling upon courts to appropriately sentence in cases such as this. Courts have also acknowledged the need for sentences to denounce offences occurring in the context of family violence.
35 In sentencing you I have taken into account the matters put to me by Mr Lavery. I have also tried to control the revulsion that one feels naturally for your actions. The abuse you have carried out on an innocent person is revolting and one is tempted to react in an inappropriate way. To the extent that a Judge must balance all matters, I have been at pains to not allow that feeling of revulsion, for you as a man and your assaults upon this vulnerable person, to overwhelm me in regard to this sentence.
36 Yes, Mr Corp if you stand up please.
37
In regard to Charge 1 you will be sentenced to a period of imprisonment of six months. In regard to Charge 2 a period of imprisonment of 18 months. In regard to Charge 3 a period of imprisonment of 12 months. In regard to
Charge 4 a period of imprisonment of three months. In regard to Charge 5 a period of imprisonment of 14 months and in regard to Charge 6 a period of imprisonment of 12 months. Using the 18 months on Charge 2 as the base sentence, I order that six months of the sentences imposed on Charges 3, 5 and 6 be served cumulatively on the base sentence and with each other. That leads to a situation of – added to the base sentence is further 18 months, making a total aggregate sentence for you of 36 months or three years.
38
In regard to that sentence of imprisonment of three years, you will be ordered to serve a minimum period of two years before you are eligible for parole. Pursuant to s.18 I declare that the 134 days you have served by way of
pre-sentence detention in regards of this matter be taken into account and deemed as service of this sentence. The end result of that Mr Corp, is that the maximum period of imprisonment imposed on you is a period of three years, with a minimum period to serve of two years.
39
Parliament requires me to indicate to you that had you not pleaded guilty the sentence I would have imposed upon you is a period of four years with a minimum of three years. So that the value to you of your plea is the difference
between – that is the sentence you got, three years with a minimum of two and the sentence you would otherwise have got of four years with a minimum of three. I have signed the disposal order and I think that is all I need to do,
Mr Prosecutor is not it?
MR LEW: That's correct, Your Honour.
HIS HONOUR: Yes, Mr Lavery, any other matters?
MR LAVERY: No, Your Honour.
HIS HONOUR: Yes, well, Mr Corp, I can only wish you luck. You've got to get rid of your drug affliction because you'll kill someone, if you don't. Yes, you can take the prisoner away. Yes, I'll stand down.
HIS HONOUR: Mr Lavery, I brought your client back up, and you and the prosecutor back because I am told by a number of the court staff that as your client left he said these words, "I should have fucking killed her and I would do so again." I thought I should put that on the record. I don't intend to take any further action against your client. However, I thought, given the matters put to me by you and his family about him effecting reform, that even allowing for people being upset about being sent to jail, it seemed to me such matter should be formally recorded.
MR LAVERY: Yes, Your Honour.
HIS HONOUR: Mr Prosecutor, you want to say anything?
MR LEW: No, Your Honour.
HIS HONOUR: Yes, I'll order that the transcript of these proceedings be added to the transcript of the sentence.
MR LAVERY: Yes, Your Honour.
MR LEW: As Your Honour pleases.
HIS HONOUR: Yes, you can take Mr Corp back. Thank you gentlemen. Nothing more to say, I noticed your client, Mr Lavery happened to say, "It was bullshit." So perhaps we'll record that too.
MR LAVERY: Yes, Your Honour.
HIS HONOUR: Yes. Thank you. I'm sorry to disturb both counsel, but seemed to me that given the type of matter – the matters that were put to me, it's a disturbing comment from your client, Mr Lavery.
MR LAVERY: Yes, Your Honour. Obviously, I haven't taken instructions so I can't say one way or another about anything.
HIS HONOUR: I'm not blaming you in any way.
MR LAVERY: No, no.
HIS HONOUR: Or suggesting there's any – I just wanted to get the matter on the record.
MR LAVERY: Yes, certainly, Your Honour, I fully understand.
HIS HONOUR: Yes. I'll excuse counsel.
MR LAVERY: If Your Honour pleases.
MR LEW: As Your Honour pleases.
HIS HONOUR: Thank you. I'll excuse you Mr Lavery.
MR LAVERY: All right.
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