Director of Public Prosecutions v Darmanin

[2014] VCC 489

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00614

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHNATHAN DARMANIN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 April 2014
CASE MAY BE CITED AS:	DPP v Darmanin
MEDIUM NEUTRAL CITATION:	[2014] VCC 489

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M Stylianou
For the Offender	Mr D Dann

HER HONOUR: 

1Johnathan Darmanin, a jury has found you guilty of one charge of common law assault and one charge of threat to cause serious injury.  You pleaded guilty before the jury to one charge of common law assault, which was Charge 2 on the indictment.  You were acquitted of one charge of rape and two charges of indecent assault. 

2The facts underlying your offending are as follows:  the victim was your former girlfriend who lived with you in the house you are in from June 2011.  The relationship deteriorated and at the time of this offending, on 24 May 2012, it had broken down but your partner kept living there as she was then in the middle of university exams and it was agreed she could stay until they were over. 

3That evening you began arguing over a bill you thought she should pay and you told her to get out of your house, pulled her up from the couch where she sat and dragged her to the front door.  The victim resisted as she had no belongings, keys or shoes on and fell in the process, bruising and cutting one knee.  These actions underlie Charge 2; common law assault.

4You then drove off returning with a new set of locks for the front door, which you began installing.  You began yelling at her again and the victim went around collecting her belongings.  You followed her, shouting at her to get out of your house, which scared her.  She was crouched down getting her passport and documents from a cabinet while you stood over her with clenched fists. 

5She dropped something and you told her that if she did that, "One more fucking time," you would, "Beat her head in."  The victim was scared and believed she would be beaten and when she said in evidence, "Into submission," keeping her eyes and head down trying not to provoke you further. 

6These actions comprise Charge 3; threat to inflict serious injury.  Eventually you stood up and the victim went collecting her belongings and you continued following her.  Ultimately, she went into the study where her textbooks and computer were and you followed her there. 

7You began removing items from the windowsill and closing the curtains.  You said to her, "I'm going to rape you.  There will be rapage.  I'm going to fucking rape you." 

8The victim, thinking she would be raped then ran from the room into the main section of the house where there were large windows that neighbours could see into and where she felt safe.  These actions underlie Charge 6; common law assault. 

9The victim said you followed her out, but did not chase her so she relaxed a little, picked up the rest of her belongings and left driving to a friend's home. 

10In a record of interview with police you said you lifted the victim from behind and dragged her towards a spot; this is in relation to Charge 2.  You made no admissions as to her falling and hurting her knee in the process.  A photograph of her injuries taken by police the next day was tendered on the trial. 

11Having heard and observed the evidence, I am satisfied beyond reasonable doubt that events occurred as outlined by the complainant. 

12You also said you might have said something along the lines of the words comprising a threat to inflict serious injury.  In relation to Charge 6, you denied threatening to rape the victim  then said you were pretty sure you had not. 

13The maximum penalty for both common law assault and threat to inflict serious injury is five years' imprisonment. 

14I now turn to your personal history.  You are now 34 and were born in Melbourne; your parents separating when you were 11 and your mother returning to live in Malta where she was born and where she still lives.  You lived with your father until you were 21, but you have kept in contact with your mother and visited her a number of times. 

15You completed Year 10 and then a four-year carpentry apprenticeship after which you were made redundant.  You have a very good work history, working consistently as a carpenter over the following years for several employers and buying your own house, where this offending occurred, when you were 21. 

16In August 2013 you left the employment you were in at the time of this offending, worked in another job for about three to four months and decided you needed time off.  You sold your house to fund your trial for these matters and now live in rental premises. 

17You are currently looking for work, but have been hampered by the uncertainty surrounding you due to the current proceedings. 

18You have a number of prior criminal convictions.  Between 2000 and 2003 you were dealt with for a series of driving offences including use of an unregistered motor vehicle, driving whilst authorisation suspended, driving whilst disqualified and driving with a blood alcohol limit exceeding .00 per cent for which you received fines, suspended sentences and an intensive corrections order. 

19Your counsel informed me you originally lost your licence on points, but needed your car for work and kept driving.  He conceded you came close to serving a term of imprisonment, but eventually got your licence sorted out and no further offending of that type then occurred. 

20In June 2008 you were placed on an undertaking for good behaviour for resisting police which occurred when you got drunk at a pub and resisted police efforts to place you in a divisional van. 

21In December 2011 you received a further adjournment on a charge of wilfully damaging property, which arose from a dispute with your grandmother's neighbour and you then damaging a fence.  I do not regard the offending that I have just outlined as relevant to the sentencing exercise before me. 

22In September 2012 you were placed on a community based order for 12 months on charges of stalking (contact person) and a charge of threat to cause serious injury.  Whilst technically this is subsequent offending, it in fact occurred before the offending before this court; that is, in January 2010. 

23You were then in a six-month relationship with another woman which was formed and ended before the relationship with the victim in this matter. 

24A dispute over money arose in relation to a holiday; you apparently wanting money back from this woman.  According to the victim's statement, which was produced by the prosecution during this hearing, you shouted outside her house, kicked her door and sent her 60 text messages and 14 voicemails; many of which were threatening and abusive.  That victim said she became frightened of staying home, that you talked of hurting her physically, which threats she believed. 

25In May 2013 you were sentenced to a two-month suspended sentence on two charges of contravening a violence intervention order.  This involved the victim in this matter on whose behalf police took out an intervention order, which you breached by sending her a text message in September 2012 expressing shame and sorrow over your ending of the relationship.  Then shortly afterwards, you delivered property left behind by the victim at her place of work compromising a mirror, a bed and a cast-iron bedhead. 

26I regard this offending as significant.  It was urged upon me by your counsel that I should take into account your demeanour in the record of interview where indeed you appeared softly spoken and remorseful over the ending of the relationship. 

27This contrasts with the fact that you were capable of bailing up the victim in this matter and threatening to rape her in the terms that the jury found that you did.  Here, on the one hand, insofar as this breaching is concerned you send a message of contrition and sorrow at the ending of the relationship and then a few days later, dump large items of furniture outside her work; an action which one would have to assume was done in order to someway express feelings of animosity and anger that you still harbour towards her. 

28It seems to me quite clear you are capable of presenting in one manner and behaving in quite another. 

29Finally, you were placed on a community corrections order in September 2013 for breaching the CBO on which you were placed in 2012 in the aftermath of your previous relationship due to you being placed on an intervention order in relation to this victim and then breaching it. 

30There has been no further offending. 

31In her evidence the victim spoke of you abusing alcohol and the drug, methamphetamine, on a regular basis, although neither appears to have played a role in the offending before this court. 

32You made admissions to this in your record of interview and I have had you assessed for community corrections order.  You told the community corrections officer that at the time of your offending you were using methylamphetamine or Ice once a month which you continued to use at this rate and that you consume alcohol and have consumed it ever since, about once every two days. 

33You said you did not believe either drug-use was overly problematic or affecting your behaviour and your counsel conceded the drug and alcohol treatment components of your previous community based order and current community corrections order did not appear to be "doing the trick."  He said it was clear drug and alcohol use had caused problems in your relationship. 

34I received a victim impact statement in this matter.  Your former girlfriend has had to seek professional help for anxiety; she has been diagnosed with a post-traumatic stress disorder and depression for which she has been medicated.  She has experienced suicidal thoughts, frequent migraines and developed a serious stress-induced condition.  She has discontinued her studies, close relationships have become strained and she suffers low self-esteem, a loss of confidence and self-respect; blaming herself for having put herself in a situation where she was able to be treated by you in the way the jury found that you have. 

35She suffers weariness, distrust and fear, particularly of men.  She fears you will seek reprisal of her.  This aftermath is sadly familiar to this court with female victims of domestic abuse and it is only to be expected the complainant will continue to suffer these after effects for some time to come. 

36Your counsel submitted that I should deal with you by way of a non-custodial disposition and you have been found suitable for placement on a community corrections order on the basis that you completed the unpaid community work component of your previous CCO and reported for the majority of it as required. 

37He also submitted that a suspended sentence would be appropriate.  He pointed to your lack of a prior sexual offending history relevant to the circumstances of Charge 6, the fact that you have not further offended since late 2012 and that you have an excellent work history. 

38Further, the maximum penalties for these charges is relatively low.  You pleaded guilty to Charge 2 and all but admitted the circumstances of Charge 3 in you record of interview. 

39You have expressed remorse, both in your record of interview and in the breaching text that you sent to the victim in September 2012 for some of your offending.  You have never been sentenced to an immediate term of imprisonment previously; he submitted you had good prospects of rehabilitation. 

40The prosecution submitted all sentencing options were open to me.  Notwithstanding that they are subsequent convictions, I am most concerned of your offending in 2010 with another former partner. 

41Chronologically, the victim in the case before this court is the second woman you have seriously threatened and frightened.  This causes me to have some reserve as to your prospects of rehabilitation in the way in which you conduct your relationships with women, notwithstanding other areas of your life such as employment, where you have demonstrated admirable qualities. 

42I am satisfied that specific deterrence has a role to play in my sentencing of you.  Your behaviour on 24 May 2012 was appalling, menacing and intimidating, involving actual physical abuse and designed, I am satisfied, to cause considerable fear in your victim. 

43In particular, I regard the scenario underlying Charge 6 as particularly serious and brutal.  You expressed an intention to rape your victim in the most explicit and sinister terms accompanying your words with actions bound to reinforce the threat, fully intending, I am satisfied, to terrify her. 

44I regard that assault as a serious one within the range.  The words and actions by you bore no relation to any escalation arising from the subject of your argument; that is a bill for a car service which you felt she should pay.  Somehow you allowed yourself to reach a stage of violent rage, such that you behaved in this criminal manner which is in my view, deserving of a stern criminal response. 

45It has long been held the principles of general deterrence, just punishment and denunciation have particular application in cases involving domestic violence such as this. 

46I am prepared to place you on a community corrections order in relation to Charges 2 and 3, but on Charge 6, it is my view the only appropriate disposition is an immediate term of imprisonment which will, however, because of the mitigatory circumstances advanced by your counsel in his helpful and most able plea, be combined with a community corrections order. 

47I therefore, sentence you as follows:  on Charge 2 you are to be placed on a community corrections order for nine months which will begin on 1 July 2014. 

48On Charge 4 you will be placed on a community corrections order for 12 months to begin on 1 July 2014. 

49On Charge 6 you will be sentenced to three months' imprisonment and then released on a community corrections order for 12 months. 

50I cannot place you on a community corrections order without your consent, Mr Darmanin, therefore I must outline to you the fundamental conditions of a community corrections order and the special conditions that in my view are warranted in your case. 

51Whilst you are under a community corrections order you must not commit any offence punishable by imprisonment whether inside or outside Victoria.  You must receive visits from and attend upon the community corrections office.  When the order begins, you must report to the community corrections office within two clear working days of being placed on the order. 

52You may not leave Victoria without permission of the community corrections officer. 

53You must report any change of address or employment to the community corrections office within a period of 48 hours.  

54You must obey all lawful instructions of the community corrections officer. 

55In addition, I am going to order the following special conditions:  (1) I am going to order that you undergo assessment and treatment for drug and alcohol use; (2) I order that you undertake an anger management program; (3) I am going to order that you be assessed and receive treatment for mental health issues.  I am going to order judicial monitoring at a six-month period and if you present in front of me, Mr Darmanin, still using drugs and alcohol in the way you are now, I will not hesitate to breach you.  Do you understand?

56So you need to turn your mind to the use of these incredibly damaging drugs including methylamphetamine.  You have had plenty of orders and plenty of conditions and plenty of work put into you on that basis and I expect you to obey and to undertake and to deal with those problems on this order.  Are you prepared to enter this order?

57OFFENDER:  Yes.

58HER HONOUR:  Thank you, you can have a seat.  We will prepare the appropriate documentation. 

59Pursuant to s.6AAA declare that had you not pleaded guilty to Charge 2 I would have placed you on a 12‑month community based order.  All orders will be a conviction. 

60MS STYLIANOU:  As Your Honour pleases. 

61HER HONOUR:  Thank you. 

62Oh yes, I forgot, community work: you can do 200 hours of unpaid community work.

63MS STYLIANOU:  Is that in respect to both of the orders, Your Honour?

64HER HONOUR:  Of all the orders, but they run concurrently obviously. 

65MS STYLIANOU:  Yes they do. 

66HER HONOUR:  It is not going to amount to 600 hours, that would be ridiculous.  He has got to earn a living as well, so it will be 200 hours. 

67I should add that for the purposes of the sentence imposed on Charge 6 I am cognisant of the requirements of s.5 of the Sentencing Act, that is that gaol should only be imposed, that is an immediate term of imprisonment, as a last resort.

68I regard the actions and words I have outlined underlying Charge 6 as being of such a serious nature that in all the circumstances an immediate term of imprisonment is the only appropriate term in the circumstances both in terms of expressing the seriousness of this offending and attending to the important principles of denunciation, general deterrence and protection for the community that, in my view, dominate the sentencing exercise before me. 

69As I have also said, I regard specific deterrence as having a part to play in the sentencing exercise before me.  Thank you. 

70MS STYLIANOU:  Your Honour pleases. 

71HER HONOUR:  Yes, thank you.  Were there any other orders sought by the prosecution in this matter?

72MS STYLIANOU:  No, Your Honour. 

73HER HONOUR:  Yes thank you, take the prisoner down.  Yes thank you.  We will stand down. 

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