Director of Public Prosecutions v Curtis

[2018] VCC 2017

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00071

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY CURTIS

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2018
DATE OF SENTENCE:	30 November 2018
CASE MAY BE CITED AS:	DPP v Curtis
MEDIUM NEUTRAL CITATION:	[2018] VCC 2017

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Damaging property; False imprisonment; Intentionally cause injury; Plea of guilty; 13 months imprisonment served on other matters; 4 months referrable to instant offending; Totality; Drug treatment in custody; Family support; Appropriate to facilitate supervised release.

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

Sentence:Total Effective Sentence: Four months imprisonment and 18 month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Stary Norton Halphen

HIS HONOUR: 

1Timothy Curtis, you have pleaded guilty to two charges of damaging property contrary to s.197 of the Crimes Act 1958 (Vic), Charges 1 and 3 on the indictment; one charge of false imprisonment, contrary to common law, Charge 2 on the indictment; and one charge of intentionally causing injury contrary s.18 of the Crimes Act, Charge 4 on the indictment.

2On your plea, Mr Hammill representing the Director of Public Prosecutions tendered a summary of prosecution opening which became Exhibit A.  That summary sets out your offending in detail.  In short, it involved the following. 

3In the six months prior to April 2016, you were involved in an "on again off again" relationship with the victim of this offending.  To protect her identity, I will refer to her for the purposes of these remarks as AB.  The victim had been trying to break off the relationship with you and in so doing, had been attempting, as she put it, to put some distance between you.  In response, you were said to have become somewhat obsessive and would often call or text the complainant, telling her that you loved her and one occasion, crying and threatening to kill yourself.

4On Sunday 3 April 2016, you spoke with AB over the phone and asked to see her.  She told you that she was busy and would call you back later.  Despite what you were told, you attended at her house shortly afterwards and an argument ensued.  You became angry, started yelling and kicking things around.  You were drinking from a beer bottle at this time and as you got angrier, you pushed that bottle into the plaster wall of the hallway of AB's home and that conduct constitutes Charge 1, criminal damage.  Photographs at pp.217 to 219 of the depositions show the damage you caused. 

5You continued to argue with the victim in the upstairs bedroom area of her home.  AB told you to calm down and not to hurt her. 

6However, you continued to scream at her, accused her of lying and being with other men.  As you did this, you grabbed her by the hair and struck her several times.  The victim went to ground and curled herself up into a ball, crying.  The sequence of events thereafter was somewhat unclear, however, whilst the complainant was walking towards the front door, she dropped to her knees as she was feeling dizzy from being hit.  You yelled at her to get up, grabbed her and pulled her towards the front door.  AB got up and walked outside where a taxi was parked. 

7You and the complainant got into the taxi and you continued to yell at her while she was crying and visibly upset.  The taxi drove towards your house, however, during the ride, AB tried to get out of the taxi but you prevented her from doing so.  Your conduct in preventing the complainant from getting out of the taxi constitutes the charge of false imprisonment, Charge 2.

8When you arrived at your house, you told AB to go into your bedroom and sit on your bed. You continued to yell at her.  The complainant got off the bed and ran towards the back of the house and as you came towards her, she tried to unlock her phone to call a friend.  You grabbed her phone and threw it against the wall, smashing the screen.  That conduct constitutes Charge 3, criminal damage.  A photo of that damage appears at p.253 of the depositions.

9As you continued to yell at the complainant, she went into your ill mother's bedroom.  At that time, you changed your attitude and when you entered your mother's room, you told the complainant you were sorry.  You offered to take her to hospital, however, she said she would wait and see how she felt.

10Soon afterwards, AB fell asleep with an ice pack on her head and did not wake until the following day.  She then returned to her home.  After she did so, you sent over 100 text messages to her, some of which were abusive and threatening. 

11In the early hours of 4 April 2016, AB reported your offending to the police and later that day, she attended a doctor and was treated for her injuries.  She was noted to have sustained bruising and swelling to the left side of her forehead and also her left hand.  The photographs at p.254 to 261 of the depositions depict those injuries.  It is the infliction of those injuries that constitutes Charge 4, intentionally cause injury.

12On 25 May 2016, you were interviewed by police in respect of this matter and denied the allegations. 

Impact of offending

13Although no victim impact statement was provided by AB, it is clear that she would been terrified by the violent and demeaning behaviour you subjected her to.  You are a strongly built man and it is obvious that the complainant would have been very fearful as she was assaulted and taken to your home.

14These courts and the community more generally now have a much greater appreciation of the destructive effects of family violence.  You and those who might be inclined to act in a similar way should understand that family violence, particularly family violence of this kind is completely unacceptable.  The sentence that I must impose in your case will take into account the damaging impact that I readily infer your offending would have had on AB.

Personal circumstances

15You were born on 15 October 1986.  You are now 32 years of age.  At the time of your offending, you were 29 years of age.  On the day of your plea, your brother and your sister attended court to support you.  Your brother is a painter.  Your sister's husband also works in that trade. 

16Mr Kenny, who appeared on your behalf, indicated that when you are released you hope to live with your sister whilst you establish yourself and obtain work through your brother and brother-in-law as a painter.

17Your parents separated when you were an infant and you were raised by your mother to whom you were very close.  You have spent most of your life living with her.  Your father was an alcoholic and died of alcohol-related problems approximately seven years ago.  Significantly, about 20 or so years ago, your mother was diagnosed with cancer and throughout most of your life, she has been in and out of hospital, undertaking invasive treatment.  You played a significant role in her care.  She died on 12 May 2016 at the age of 50, just a month or so after these offences.

18You have only been educated to Year 7 level.  Having left Reservoir Secondary College, you returned one year later to undertake a four-week trial at the start of Year 9.  However, that was unsuccessful.  Since leaving school, you have worked with a neighbour installing aluminium roofing and from the age of 19 through to 25, you worked as a sheet plasterer.  That work came to an end because your addiction to methamphetamine became so entrenched that it interfered with your ability to work.  Since that time, you have had very little in the way of employment.

19You had a significant relationship with a woman who was not a drug user for about seven years.  That relationship ended approximately two and a half years ago.  There is one child of that relationship, a daughter now aged four.  You have been in regular phone contact with your daughter during the time that you have been in custody. 

20Alcohol has always been a problem for you.  You started drinking at about the age of 14 and by the time you were working as a sheet plasterer, you would typically drink between 15 and 20 cans of beers at the end of each working day.  You were assessed by a consulting clinical and forensic psychologist,
Mr Cummins, who formed the view that alcohol continued to be a problem for you and that you suffered from an alcohol use disorder of moderate severity. 

21You started smoking methamphetamine when you were about 19 years of age and your usage of that drug steadily increased until you would use daily whenever you could get access to that drug.  You were still using heavily in March 2016 and that drug use provides the setting within which you committed these offences. 

22Your prior convictions coincide with your descent into drug use.  Those convictions include matters of violence, dishonesty, damaging property and a significant number of serious driving offences.  It is reasonable to infer that a good deal of your offending has been associated with your drug abuse. 

23As to your current circumstances, you went into custody on 6 July 2017.  I was told you received sentences totalling 13 months' imprisonment for subsequent offending including dishonesty offences and family violence against your former partner.  You have now served those sentences and approximately four months of the 17 or so months you have served in custody since July 2017 is referable to these offences.  This is by far the longest time you have spent in custody and you have instructed your counsel that you have been abstinent from drugs during that period. 

24In support of those instructions, he relied on four negative urine screen drug test results and three certificates confirming completion of rehabilitative programs, dealing with stress management, managing cravings and the effects of ice.  You have also completed a TAFE course being Certificate II in Kitchen Operations.

25In Mr Cummins' assessment, you did not attract a diagnosis of anti-social personality disorder or as having an anti-social personality style or anti-authoritarian attitude in spite of your prior convictions.  According to
Mr Cummins, you have shown at least some insight into the impact your offending was likely to have had on the victim but further treatment directed to anger management and drug and alcohol abuse was needed. 

26Your prospects for rehabilitation appear therefore to be very much contingent on remaining drug free and continuing to develop strategies to managing your behaviour.  Mr Kenny who appeared on your behalf relied on your plea of guilty which, whilst not an early plea, nonetheless facilitated the course of justice.  Aside from the other matters I have mentioned, he particularly relied on the application of the principle of totality having regard to the terms of imprisonment you have already served since July of 2017. 

27He submitted that whilst a term of imprisonment might be appropriate for this offending, he put that it was now appropriate that you should be subject to supervised release in the very near future.

28Mr Hammill on behalf of the Director, as I understood his position, acknowledged that a disposition involving a Community Corrections Order was open in these particular circumstances.  As I indicated to you earlier, I take the view that the family violence you inflicted on the victim in this instance was completely unacceptable.  Were it not for the fact that you had already served a reasonably lengthy sentence, I would sentence you to another reasonably lengthy sentence.  However, Mr Kenny's point, that given the imprisonment that you have already served, it might be time to consider supervised released directed to ensuring the protection of the community in the longer term, seems to me to be well-made.  

29In the light of those matters, you were assessed by a representative of the Office of Corrections in custody and that report was provided to the parties.  In part, it states as follows:

"It is acknowledged that Mr Curtis reports to be clean from substances since being in custody for 17 months however as outlined above, Mr Curtis was under the influence of ‘ice’ and alcohol at the time of the offence.  Both the drug and alcohol treatment conditions are respectfully endorsed so that Mr Curtis may undergo an assessment for any required treatment in those areas.

Further, given the nature of the offences, it is anticipated that Mr Curtis would participate in the men's behaviour change program. 

It is also respectfully recommended that Mr Curtis undergoes an assessment for programs or courses aimed at reducing reoffending and addressing factors relating to the offending, and participate in such programs or courses as directed." 

30The report indicates that you are suitable for a Community Corrections Order.  Accordingly, I intend in this instance, Mr Curtis, to impose a community corrections order in combination with a term of imprisonment. 

31Mr Curtis, on Charge 1 - criminal damage, you will convicted and sentenced to one month's imprisonment. 

32On Charge 2 - false imprisonment, you will be convicted and sentenced to four months' imprisonment.

33On Charge 3 - criminal damage, you will be convicted and sentenced to one month's imprisonment.

34On Charge 4 - intentionally cause injury, you will be convicted and sentenced to four months' imprisonment.

35Pursuant to s.44 of the Sentencing Act 1991 (Vic), I will further order that in respect of all four offences, with your consent, you be placed on a community corrections order for period of 18 months.  The conditions of that community corrections order will be that you undergo supervision; that you undergo treatment and rehabilitation in respect of drug, alcohol and programs to reduce offending. 

36I will make no order for cumulation with respect to the terms of imprisonment imposed.  That makes a total effective sentence of four months' imprisonment. 

37I will declare under s.18 of the Sentencing Act that you have served 117 days as pre-sentence detention and I will cause that declaration to be noted in the records of the court. I will further declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, you would have been sentenced on these matters to a term of imprisonment of three years with a non-parole period of 21 months. 

38I need to explain to you, Mr Curtis, that it is important that you understand that in being placed on this community corrections order you understand what you are getting yourself into. 

39In essence, what this order means is that you must not commit an offence punishable by imprisonment during the 18-month period.  It means that you must comply with the directions provided to you by the representatives of the community corrections centre.  It means that you must report to the Office of Corrections and receive visits from them.  You must let the community corrections people know if you change address or if you change your job.  You cannot leave the State without first getting permission and you must obey all of their lawful directions. 

40In addition to that, you must agree to undertake supervision, assessment and treatment in respect of drug use, assessment and treatment in relation to alcohol abuse and you must participate in programs or courses as directed by the Office of Corrections relating to the offending for which you have been sentenced.

41Now, if you were not to comply with those conditions, Mr Curtis, the position would be that you would be charged with contravening that order, that you be brought back before me and you would need to be dealt with in respect of the contravention or breach of the order.  But you would also come up and be resentenced in respect of these matters. 

42Now, in some respects undertaking this order requires an enormous amount of effort and if it - if you do not comply with it, then you might end up in effectively more strife than where you started.  You understand all of that?

43OFFENDER:  Yes.

44HIS HONOUR:  Given all of that, are you willing to consent to undertake a community corrections order?

45OFFENDER:  Yes, I will.

46HIS HONOUR:  All right.  Mr Kenny, a document will be - the order itself will be provided to you if you would not mind showing it to your client, explaining it to him and asking him to sign it.

47MR KENNY:  I will do that, Your Honour.

48HIS HONOUR:   The effect of it as you would appreciate is that on the expiration of his sentence of four months which I would expect to be in two or three days, he will be required to undertake the order.

49MR KENNY:  Yes.

50HIS HONOUR:  Mr Hammill, are you still with us?

51MR HAMMILL:  Yes, Your Honour.  I am. 

52HIS HONOUR:  I am advised that there is a summary charge of unlawful assault on the court file.  I take it that you would be withdrawing that, would you?

53MR HAMMILL:  Yes, Your Honour.

54HIS HONOUR:  I will have it marked "withdrawn", Mr Hammill.  Thank you.

55MR HAMMILL:  As Your Honour pleases.

56HIS HONOUR:  Is there any issue arising out of the sentencing remarks,
Mr Hammill?

57MR HAMMILL:  No, Your Honour.  Not from my chair.

58HIS HONOUR:  And you are able to see into the courtroom, are you?

59MR HAMMILL:  Yes, I have you and a small screen, the Bar table in a big one and then for whatever reason, myself on a full screen.

60HIS HONOUR:  Right, well, Mr Kenny is just explaining the community corrections order to Mr Curtis.  So just bear with us a moment.

61MR HAMMILL:  Indeed.

62MS KENNEDY:  Mr Curtis has signed that order, Your Honour.

63HIS HONOUR:  Yes, thank you.  Mr Curtis, the effect of this order is that as I intended, in the next two or three days, your sentence will have expired, at least that part of it that involves you serving out actual time in prison.  You will then be require to be released on that community corrections order.  I hope, Mr Curtis, that I never see you again.

64OFFENDER:  Yes.  Thank you, Your Honour.

65HIS HONOUR:  All right.  We will stand down until 10.30.

66MR KENNY:  May it please Your Honour.

67MR HAMMILL:  As Your Honour pleases.

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