Director of Public Prosecutions v Craige
[2023] VCC 2322
•5 December 2023
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-01834
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN CRAIGE |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 8 November 2023 & 5 December 2023 | |
DATE OF SENTENCE: | 5 December 2023 | |
CASE MAY BE CITED AS: | DPP v Craige | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2322 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Reckless conduct endangering serious injury – common law assault – destroying property – intentionally causing injury – intentionally damage property – careless driving
Legislation Cited: Criminal Procedure Act 2009; s145; s242
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v R (2013) 302 ALR 192
Sentence:Convicted and sentenced to four years and three months imprisonment with a non-parole period of three years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Miss S. MacDougall | The Office of Public Prosecutions |
| For the Accused | Mr D. Dewitt | Victoria Legal Aid |
HIS HONOUR:
1Nathan Craige, your case was initially listed to have the charges on indictment no. M1202423.1 dealt with in the Koori Court at the commencement of the Latrobe Valley County Court sittings on 8 November 2023. The elders who were here on that day were not satisfied of you indigeneity based on the documents provided to them. The plea hearing was adjourned to 5 December 2023 to give you a further opportunity to obtain what was described to me as a “Certificate of Indigeneity”. You have elected to pass up the opportunity to have your matters dealt with in the Koori Court.
2On this day, 5 December 2023 at the County Court of Victoria sitting at Latrobe Valley, you pleaded guilty to the following charges on indictment no.M1202423.1:
Charge 1, common law assault of Jessica Kerr. This charge has a maximum penalty of five years' imprisonment.
Charge 2, reckless conduct endangering Ms Kerr of serious injury. This is a rolled-up charge over a period of time at a couple of different events. This charge has a maximum penalty of five years' imprisonment.
Charge 3, common law assault of Jessica Kerr. Again this charge has a maximum penalty of five years' imprisonment.
Charge 4, criminal damage to property. This related to two Apple iPhones owned by Ms Kerr. This charge has a maximum penalty of 10 years' imprisonment.
Charge 5, intentionally causing injury to Jarrod Blake. This charge has a maximum penalty of 10 years' imprisonment.
Charge 6, reckless conduct endangering Jarrod Blake of serious injury. This charge has a maximum penalty of five years' imprisonment.
Charge 7, criminal damage to property which was a VicRoads sign. This charge has the maximum penalty of 10 years' imprisonment.
Charge 8, criminal damage to property belonging to the
Department of Family, Fairness and Housing. This charge has the maximum penalty of 10 years' imprisonment; and
Charge 9, the common law assault of Jessica Kerr. This charge has a maximum penalty of five years' imprisonment.
3You have consented to a related summary charge being transferred to this court and heard by this court, pursuant to ss145 and 242 of the Criminal Procedure Act. The only charge proceeding was Charge 29, which was a careless driving charge. The relevant maximum penalty for that charge is 12 penalty units. The other related summary charges of six, seven, eight, 11, 12, 13, 28, 30 and 31 are all to be withdrawn.
4You have admitted your criminal history. On 31 October 2014, you were placed on a Community Corrections Order (“CCO”) with unpaid community work for charges predominantly relating to driving offences. On 10 May 2017, at Latrobe Valley County Court, you were sentenced to three years and six months with a non-parole period of 27 months for violence offending, similar to the charges in this proceeding. Furthermore, on 28 July 2017 at Latrobe Valley Magistrates' Court, you were sentenced to 18 months with a 12-month non-parole period for violence and criminal damage charges. This sentence was to be served concurrently with the sentence which was imposed on 10 May 2017. You appealed that sentence and it was reduced to nine months' concurrent with an order made on 21 November 2017.
5You have now served 802 days of pre-sentence detention in respect of the charges before this court.
The circumstances of your offending
6The prosecutor tendered an Amended Summary of Prosecution Opening dated 6 November 2023, it was Exhibit “A”. The prosecutor read the relevant parts of that opening into the record of the court.
7One of your victims was Jessica Kerr. You were in a relationship with her from April 2021. In June 2021, the two of you moved into a converted garage which was next to your father's premises in Tyers. Your nine-year-old son Cooper and Ms Kerr's four-year-old son Chase lived with the two of you at the Tyers property on the occasions when custodies for both of them were allowed. In July 2021, Ms Kerr became pregnant to you.
8The other victim of your offending was Jarrod Blake. Mr Blake was a former romantic partner of Ms Kerr. You knew who Blake was, but you were not friends with him.
Charge 1
9On one day in the period between July and August 2021, you were driving your Nissan Four Wheel Drive from Morwell to Tyers. Ms Kerr who was then pregnant was in the front passenger seat. The two of you started arguing. You then reached over and punched Ms Kerr hard to the right side of her jaw. You struck her twice by punching her. That was the basis for Charge 1.
Charge 2
10On a different occasion and in the same period that is July to August 2021, Ms Kerr was in bed at the home at Tyers property. You became angry at Ms Kerr having added some further person on Facebook. You came into the bedroom and you were yelling at her. You then got on top of Ms Kerr, placed both your hands around her throat and squeezed with full force. You squeezed so tight that she could not breathe, saw stars and her ears began to ring. She grabbed your hands as this occurred but was unable to loosen your grip. That was conduct endangering persons as part of a rolled-up charge, Charge 2.
11You eventually let go of her and left the bedroom. Afterwards Ms Kerr noticed that she had red marks on her throat where your hands had been. The following day she noticed that the bruising on her neck and throat. She covered it up with makeup.
Charge 3
12
On a separate occasion again between July and August 2021, Ms Kerr was again at home in Tyers with you. By this stage the relationship between the two of you had deteriorated to the extent that Ms Kerr felt like she was walking on eggshells. You would fly off the handle at her at the smallest of things. Ms Kerr was in the bedroom and you began yelling at her. You took hold of her clothing, picked her up and threw her against the wall. This caused holes in the plaster where her head and back had collided with the wall. That was the basis of
Charge 3, common law assault.
13The impact of the assault suffered by Ms Kerr was a splitting headache and pain to her back. During the incident she was scared for her life. You repaired the damage to the wall.
14
The fourth incident which is part of Charge 2, but was a separate occasion between July and September where Ms Kerr was asleep in her bed. You had her phone in another room. You came into the bedroom screaming, got on top of
Ms Kerr and placed your hands around her neck. You squeezed her neck so tightly that she passed out. This episode is part of the rolled-up charge of Charge 2, conduct endangering Ms Kerr of serious injury.
15Ms Kerr woke up at some stage thereafter and realised that she had in fact passed out as a result of your assault on her. She was disoriented and seeing stars. She curled into a ball and cried herself to sleep. The following day again she noticed bruising to her throat.
16On two other occasions during the relationship while you were living at Tyers property, you destroyed two of her phones. The first was an iPhone 5 phone which you completely folded in half. The value of it was said to be $200. The second occasion in which you damaged Ms Kerr's iPhone 8 Plus phone, again to the value of $200. They are the subject of Charge 4, which was criminal damage to property.
17On another occasion between August 2021 and September 2021, you were driving your vehicle with Ms Kerr in the passenger seat. The pair of you were again arguing about whether or not Ms Kerr could visit her sister. You screamed at her and swerved the car that you were driving towards a parked car on the side of the road in Buna Street in Morwell. Ms Kerr thought that you were going to crash and yelled at you to stop. She was crying. You have then driven home to Tyers. That is one the basis for the rolled-up Summary Charge 29, careless driving.
18On 19 September 2021 you turned your criminal activity towards Jarrod Blake, who was an ex-boyfriend of Ms Kerr. On that day, you and Ms Kerr were driving in your vehicle. You had dropped your son Cooper off at the FoodWorks in Yallourn North. You drove to the KFC in Morwell and attempted to buy some food there, but Ms Kerr's bankcard did not work, which made you angry. You then started driving back your home in Tyers.
19At approximately 5.15 pm as you were driving down Vary Street in Morwell, you saw Kerr's ex-boyfriend Jarrod Blake walking along the side of the road. You then stopped the car, grabbed a knife from your driver's side door and ran after Blake. You then stabbed him in the middle of his back. Blake put up his hands to try and fight you off, but you sliced at his hands with the knife.
20Ms Kerr got out of the car and ran over to both of you. She tried to get in between the two of you and yelling at you to stop. You told her, “Get back in the car you slut”. So Ms Kerr returned to the vehicle.
21You then got back in the vehicle turned it on and drove directly at Mr Blake, who was trying to pick up his belongings from the ground. Your vehicle collided with a road sign on the nature strip before it hit Blake with the edge of front bulbar on the driver's side. Blake was able to jump out of the way before the vehicle then collided with a wooden fence which was at 132 Vary Street in Morwell.
22Mr Blake suffered lacerations to this left hand and back as a result of your stabbing. He required sutures and treatment. Those events form the basis of Charge 5, intentionally cause injury to Mr Blake, Charge 6, conduct endangering serious injury to Mr Blake, Charge 7, criminal damage which is the road sign of VicRoads, and Charge 8, criminal damage to the wooden fence. This offending was witnessed by Monika Hussey and others.
23You then reversed your car away from the fence. Blake has punched the driver's window of your car. He had smeared it with blood. You drove away on the wrong side of Junior Street which was another part of Summary Charge 29, careless driving. You accused Ms Kerr of being to blame because of her previous relationship with Mr Blake.
24On your drive home to Tyers, you pulled the car over to the side of the road and then punched Ms Kerr on a couple of occasions to the right side of her face and jaw. This is the basis of Charge 9, common law assault.
25Later that night you contacted your friend Scott Grey on Facebook Messenger. You told Grey that “you might be going back in” and said that you did not want to say what had happened and that, “I stabbed him first.” You further stated that a taxi driver and a passenger had witnessed the incident, but that they had only seen you “run the cunt over'”, because they had pulled into the street at the last minute. Later that evening when you had calmed down, you were apologetic to Ms Kerr and said that you knew you were going to be locked up. The following night you became suicidal and sent Ms Kerr a message to say that you were going to kill yourself. This included a video of yourself in the bush with a noose. Ms Kerr tried to calm you down and told you it was all going to be okay.
26After police made enquiries of witnesses on 21 September 2021, police attended at the Tyers property and observed you standing at the front of the house with your vehicle. You were arrested for the offending against Blake only. Ms Kerr who was also present at the property was spoken to by police and provided a statement. She was upset and anxious at the time. She initially gave the police a false account and was warned by Detective Quine, that if she signed a false statement that she would be liable to the penalties of perjury. Ms Kerr then gave a statement about the events of 19 September 2021, but stated that she did not want to tell the police about what happened between 4.30 pm and midnight on that day, that is the events involving Mr Blake.
27Your vehicle and mobile phone was seized by the police. Police located and seized a knife from the ground outside your front door and a pocket knife located in your vehicle. You were later transported to the Morwell police station and interviewed for offending against Mr Blake.
28During the interview you said the following:
·The pocket knife belonged to Kerr.
·When asked to describe what you knew about the incident with the stabbing and dangerous conduct, you stated that you only knew what police had told you. And you said it was an incident involving a car, an accident of some sort.
·As to your movements on the day, you said you and Kerr dropped Chase and Cooper off and had driven to Tyers or Yallourn North to get some milk, other than that you had not been anywhere else in Morwell itself and had gone straight home.
·
You were then advised that your vehicle has been involved in an incident in
Vary Street Morwell at the time, that is around 5.15 pm on 19 September 2021 and you said that someone else had your car. And it was not you in it at that time. You said that you wanted to tell the police about it, but that you could not.
·You then said that on that day of the incident, you did not have your car for approximately 25-40 minutes.
·You admitted that you knew Blake as Blake was best mates with one of your ex-good friends. You said that you had known Blake for years but you were not friends with him.
·When given a description of the incident with Blake, you then admitted that based on the photographs that you had been shown by the police it was definitely your car involved. The photographs of Blake's injuries were shown to you.
·You said that they looked bad and you felt sorry for Blake. You said that you hoped Blake did not think that you had done it to him. You knew Blake knew who did it to him.
·You then said that you could not give police the name of the person who was driving your car at the time and said that you would give them an address where they could check for the offender on cameras.
·You said that you “did not want to go down for this shit”. You declined to make a statement because you had a family and referred to how badly Blake had been injured as to why you did not want to make a statement.
·You then provided the pin code to your phone to the police.
29On 24 September 2021, investigators obtained CCTV footage from the Tyers property. The footage indicated that you had returned to the residence at approximately 5.30 pm on that day, 19 September 2021.
30Following this, you were then again arrested on that day and conveyed to the Morwell police station, where you were re-interviewed. During the second interview you stated:
·The person who had your car at the time of the incident with Blake was in Morwell, but would not provide any specific address.
·When you got the car back from the person it was in perfect condition and it did not look like it had been in any collision.
·You were in the car with Ms Kerr when it returned to the property at 5.30 pm, as it was shown on the footage of you.
·You had parked your car at your father's address because it had shopping in it and you also said that you always parked the car at your father's address because your father doesn't have a licence and that you get the groceries for him.
·You denied being the driver of the car when Mr Blake was hit by it.
·The Facebook Messenger's exchanged between yourself and Mr Grey were put to you, and you said that you could not explain them and that you had been “fucking stitched up”. You said that the police already believed that you had done it. You also suggested someone else may have logged into your Facebook account and sent the messages themselves.
31You conducted a contested committal in respect of the offences relating to Ms Kerr and Mr Blake. You ultimately admitted to the offending against them. Each of them had been given the opportunity to make a victim impact statement but had declined to do so.
Your personal circumstances
32At the time of your offending you were 26 years old. You are now 29. You have spent the last 802 days in pre-sentence detention.
33You were born in Tasmania. You have an older brother. You have reported to Dr Mathew Barth (Exhibit 3 is his report) that you endured a turbulent and abusive childhood. You reported that your mother was the person responsible for the abuse. Your mother suffered from mental health issues. In your early years, Child Protective Services were involved in your welfare.
34Your mother was a Palawa woman and that is the line of your Aboriginal heritage.
35Your parents separated when you were seven years old and you and your older brother Ashley resided with your father. You were brought up by your father and your grandparents. Your father moved your family to Traralgon to get away from the influence of your mother.
36You have enjoyed a positive relationship with your father. You were living next door to him at the time of this offending. Since the offending your father has moved to Ballarat to live near your brother Ashley and his wife and children. Your father has a number of health issues. Your older brother is the main support for your father.
37In your early teenage years you received little discipline and control from your father. You have reported that to Dr Barth. Your education was disrupted due to your family circumstances and you gave a history of being bullied at school. You fought back against your tormentors. Ultimately, you were expelled at the Year 10 level. You then did complete Year 10 equivalent at the Education Centre of Gippsland.
38After school you initially had employment as a fencer, concreting, forklift driver and worked in a meat factory. You also worked at Big W. Your employment was interrupted by your drug use and the consequent court appearances, and obviously absences from the community due to incarceration.
39Your drug and alcohol use has been longstanding. Your drinking of alcohol and cannabis use started when you were 11 years of age. At the age of 15 you had moved onto methylamphetamines, amphetamines and MDMA. This drug use and the violence following it has led to your criminal history and periods of imprisonment. You have made some efforts to tackle your drug problems whilst in the protective environment of the prison. You told Dr Barth you were in a period of heavy drug use when you committed this cluster of offending here before the court.
40Dr Barth has assessed you for the purpose of this plea hearing, as I say his report was dated 25 October 2023 and is Exhibit 3. You have been assessed by him as:
(1) a high risk of violent reoffending;
(2) Borderline Personality Disorder with anti-social features;
(3) Stimulant Use Disorder; and
(4) Severe Cannabis Use Disorder.
41In Dr Barth's opinion you require extensive supervision and structure and treatment if you are to have a realistic prospect of controlling your drug and significant behavioural problems.
42You are currently prescribed methadone in custody. You have provided a number of drug screen analysis results showing negative results except for of course methadone, they were Exhibit 4.
43You had the support of Jason McDonald from Balanced Choice Programme, which was Exhibit 5. Your brother's wife Kiera Leishman and your father who had given references are Exhibit 6. Whilst on remand you have engaged in a number of courses to increase your skill base for future employment and that was Exhibit 7.
44You have a son Cooper who is now 13 years of age on my calculations. He has not seen you for some time.
Sentencing considerations
45The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
46I am required to balance the interest of the community in denouncing your criminal conduct, with the interest of the community and in seeking to ensure that as far as possible, you as an offender are rehabilitated and reintegrated into society.
47I am also required to take into account current sentencing practices in fixing your sentence. That enquiry's directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Nevertheless, current sentencing practices is only one of the considerations I must take into account.
48Your counsel submitted that the appropriate sentence was a combination sentence of a CCO with therapeutic conditions to follow the significant period that you have already spent on remand and possibly into the future, which could be no more than one year. Your prior criminal history and Dr Barth's assessment of high risk of violent reoffending, makes such a disposition an inappropriate sentencing option in my view.
49Your plea was indicated at committal stage for the offences where Mr Blake was your victim. You conducted a contested committal hearing in respect of the charges where Ms Kerr was your victim.
50Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of police resources to deal with other matters and your plea vindicates the public confident in the legal process set up to protect the community.
51Your plea is also a clear acknowledgement by you, that you accept your responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept your plea to these charges indicates and demonstrates some remorse on your part.
52
Your plea of guilty is entered at a time when the trial delays due to the COVID pandemic are still acutely obvious in the Latrobe Valley division of the
County Court. Your amount of time on remand is proof of the delay for trials. You are entitled to some consideration sentence consistent with the principles set out in Worboyes case.
53You have a relevant criminal history, I have outlined it earlier in these reasons and will not repeat it here.
54You have a long term drug abuse history and told Dr Barth, you were using drugs at the time of these offences. I do not accept your moral culpability is reduced due to your early childhood deprivation as reported by you to Dr Barth. Your father has been your long term provider of domestic stability. Your offending is driven by your drug use and borderline personality disorder. I generally accept that the principles set out in Bugmy's case have application to your sentencing process.
55Your offending is serious and persists over a period of some three months. The indicators of the level of seriousness are;
(1) Your victim Ms Kerr was your domestic partner and pregnant with your child.
(2) You struck her on three separate occasions when she had no chance of escaping from you.
(3) You have choked her to the extent on one occasion of her passing out.
(4) Your two attacks on Mr Blake were unprovoked and vicious with features of cowardice on your part. Your offending against your partner by definition was cowardly.
56I assess your prospects of rehabilitation as poor. You have made some progress on remand in respect of your drug addiction, but I note that you are prescribed methadone and are in a protected environment of imprisonment in respect of other drugs. You have the support of your father and your brother and his wife when you return to the community.
57On Dr Barth's assessment of you, there is a high risk of violent reoffending which is a primary concern for your rehabilitation. Of course, you can turn all of these indicators around if you choose a law-abiding path with no drug use. It is as simple as that.
58I have taken your personal circumstances into account when finalising your sentence. Your offending has occurred over a period of time with two separate victims. I cumulated such parts of the individual sentences to reflect the additional criminality and aggravating features of additional offending which occurred at the same time. I have had regard to the sentencing principle of totality in sentencing you to ensure the overall sentence is not a crushing sentence, whilst at the same time imposing a just punishment for your offending.
59The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and protection of the community combined with your rehabilitation dictate that the only proper sentence is a term of imprisonment with a fixed non-parole period. The Parole Board can closely and effectively manage your release from prison into the community.
60Would you stand please?
61In respect of Charge 1, you are convicted and sentenced to nine months' imprisonment.
62In respect of Charge 2, you are convicted and sentenced to 12 months' imprisonment.
63In respect of Charge 3, you are convicted and sentenced to nine months' imprisonment.
64In respect of Charge 4, you are convicted and sentenced to three months' imprisonment.
65In respect of Charge 5, you are convicted and sentenced to two years' imprisonment, that is the base sentence.
66In respect of Charge 6, you are convicted and sentenced to one year imprisonment.
67In respect of Charge 7, you are convicted and sentenced to three months' imprisonment.
68In respect of Charge 8, you are convicted and sentenced to three months' imprisonment.
69In respect of Charge 9, you are convicted and sentenced to nine months' imprisonment.
70On the charge of careless driving which is a related summary charge of careless driving, you are convicted and fined $1,000.
71Accumulation in respect of the terms of imprisonment are as follows. As I say, the base sentence is Charge 5, which is two years' imprisonment. To that served cumulatively on it and on one another are the following in respect of Charge 1, three months of that sentence. In respect of Charge 2, six months of that sentence. In respect of Charge 3, three months of that sentence. In respect of Charge 4, one month of that sentence. As I say Charge 5 is the base sentence. In respect of Charge 6, six months of that sentence. In respect of Charge 7, one months of that sentence. In respect of Charge 8, one months of that sentence. And in respect of Charge 9, six months of that sentence.
72That is a total effective sentence on my calculation of four years and three months' imprisonment. I fix a non-parole period of three years' imprisonment. But for your plea of guilty I would have sentenced you to six years with a four year non-parole period.
73I declare that you have served 802 days of pre-sentence detention. I make a disposal order sought by the prosecution and I also make the forfeiture order in respect of the motor vehicle Nissan Navara, registered number 1SO 1IJ. The reason for that is as follows. The vehicle was used in the commissions of the offence, the subject of Charge 6 on the indictment. I have considered the submissions put on your behalf concerning the prosecution's application for the forfeiture order. The vehicle was seized some two years ago.
74It was purchased by you for some $4,000 with the $2,000 loan attached to it. It was the weapon in Charge 6 and the captive vehicle for Charges 1 and 9. When I say that, your victim was caught in the car. I have been advised that the vehicle is stored in the open at some police facility. Its value will be deteriorating day-by-day. By the time you are eligible for parole it will be worse than it is today. I grant the application for forfeiture.
75Can I ask counsel just to check first of all my arithmetic in respect of the sentences? And if there's anything else please let me know now.
76MR DEWITT: Your Honour the amounts seem to all add up. Apologies. Sorry, if I could have a moment, I'll just - - -
77HIS HONOUR: You're right, certainly.
78MISS MacDOUGALL: I apology for my maths but I agree with Your Honour.
79HIS HONOUR: Yes. Don't apologise if you're agreeing with me.
80MR DEWITT: Yes, thank you, Your Honour.
81HIS HONOUR: Is it - is this correct?
82MR DEWITT: It does, yes.
83HIS HONOUR: Thank you. And there's nothing further from either of you?
84MR DEWITT: No, nothing further, thank you.
85MISS MacDOUGALL: No, thank you, Your Honour.
86HIS HONOUR: Yes, thank you. All right. Mr Craige, as I said during the course of the sentencing remarks it is up to you, otherwise you will be back.
87OFFENDER: Yes (indistinct words) Your Honour.
88HIS HONOUR: And there is only one rule about when you come back, the periods of time get a lot longer. All right. Good luck when you get out.
89OFFENDER: Thank you, Your Honour.
90HIS HONOUR: Remove the prisoner thank you. Thank you counsel for your assistance.
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