Director of Public Prosecutions v Dixon
[2024] VCC 113
•29 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR‑23‑01671
Indictment No. P10342304
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON DIXON |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2024 | |
DATE OF SENTENCE: | 29 April 2024 | |
CASE MAY BE CITED AS: | DPP v Dixon | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 113 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Persistent contravention of family violence intervention order contrary to s125A of the Family Violence Protection Act 2008 – attempting to pervert the course of justice contrary to Common Law – pleas of guilty
Legislation Cited: Family Violence Protection Act 2008, s123; Sentencing Act 1991
Cases Cited:DPP v Dixon [2020] VCC 1278; Barbaro v The Queen [2012] VSCA 288; Phillips v The Queen [2012] VSCA 140; Mohtadi v The Queen [2018] VSCA 238; Kellen Craft (a pseudonym) v The Queen [2021] VSCA 66; Brown v The Queen (2020) 62 VR 491; R v Verdins & Ors (2007) 16 VR 269; DPP v Herrmann [2019] VSC 694; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169; Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] ALJR 91
Sentence: Twenty-two months’ imprisonment with a non-parole period of sixteen months.
Section 6AAA declaration: thirty months’ imprisonment with a non-parole period of twenty months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D Caruso | Office of Public Prosecutions |
| For the Accused | Mr T Battersby | Leanne Warren & Associates |
HIS HONOUR:
1 This plea was heard on 9 February 2024, a plea of guilty to two charges in Indictment Number P10342304.
2 Cameron Dixon was born in July 1991. He was 31 at the time of these offences. He is thirty-two now. He was a commercial cleaner at the time.
3 For the Director of Public Prosecutions, Ms Deanna Caruso, appeared, and Mr Tom Battersby appeared for Mr Dixon.
4 The victim in this matter was Kelly Garrett[1], born in October 1992. At the time Mr Dixon was in a four-month relationship with Ms Garrett, subsequent to being released from prison, pursuant to a sentence of mine of the 19th of August 2020.
[1]A pseudonym.
5 Charge 1 on the Indictment concerns persistent contravention of a Family Violence Prevention Order, dated the 4 January 2023. The contraventions are alleged to have occurred between 4 February 2023 and 15 February 2023. Such is an offence against s 123 of the Family Violence Protection Act 2008, s125A which provides that the penalty for such breach is five years’ jail and/or 600 penalty units.
6 Charge 2 on the Indictment is an attempt to pervert the course of justice. This occurred on 14 February 2023. It is a common law offence for which the maximum penalty is 25 years’ imprisonment.
7 As I said to the Prosecutor, I considered the plea to Charge 2 very valuable.
8 As to his prior offences, they were admitted by Mr Battersby. In particular, is my sentence[2] for similar offences in which I imposed a sentence of three years and three months’ imprisonment with a minimum period before being eligible for parole of two years.
[2]DPP v Dixon [2020] VCC 1278
9 In Geelong Magistrates’ Court on 7 October 2019, Mr Dixon was sentenced to seven days’ imprisonment, for theft from shop and tamper with motor vehicle.
10 Again, in Geelong Magistrates’ Court, on 29 March 2017, he received an aggregate sentence for burglary and theft.
11 By way of background, he has a lengthy criminal history involving assaults, drug matters and dishonesty, back to the age of 21, when he first received a gaol sentence in 2012.
12 There is no victim impact statement filed by the victim.
13 Mr Dixon has served 439 days to today’s date.
14 At the plea, the Prosecution tendered Exhibit A, Prosecution Opening, dated 18 December 2023. Defence counsel, Mr Battersby, admitted the facts set out in such Opening as the facts upon which I am to sentence his client.
15 Exhibit B is the Prosecution Submission as to Sentence dated 7 February 2024.
16 Exhibit C is the copy Intervention Order dated 4 January 2023.
17 Exhibit D are the photographs of the telephone messages making up the basis of both charges,
18 Exhibit E is the Community Correction report dated 12 February 2024 from Mr Poutapu, for which I thank him.
19 Exhibit F is the Mental Health Advice and Response Service Report dated 14 February 2024, received from Forensicare.
Criminality
Charge 1
20 This crime is detailed in the Indictment as encompassing eleven occasions of contravention from 4 February 2023 to 15 February 2023 where Mr Dixon telephoned Ms Garrett and/or on occasions, sent text messages. The telephone calls ranged from twice on one occasion to 201 times on another occasion. Such calls are detailed in Exhibit A at [8] to [21].
21 The circumstances of the telephone calls are consistent with his mental makeup as detailed by Ms Maynard (Exhibit 5 of 17 May 2023), and myself in my sentencing remarks of 19 August 2020 (see [26] to [31]).[3]
[3]DPP v Dixon [2020] VCC 1278
22 The Prosecutor described such messages as being manipulative and abusive. This relates, in particular, to the items he sent to Ms Garrett’s mother on Valentine’s Day (see [20] of Exhibit 1). In such messages, he threatened self-harm and suicide, consistent with the diagnosis, referred to above. Such calls consistently refer to the ongoing “love” professed by Mr Dixon for Ms Garrett.
23 In this regard, it should be noted that they met in October 2022, hence they had been dating for a period of four months prior to these offences.
24 It was not disputed by the defence in their submission (Exhibit 1) that such offending is “inherently serious”.
25 However, it is noted that there was no physical violence perpetuated upon Ms Garrett, or physical intimidation by way of aggravation, as is maintained by Mr Dixon in the record of interview.
26 Mr Battersby notes the importance of general deterrence and, in this case, specific deterrence, when considering breaches of family violence intervention orders. I refer to the general principles applicable to such cases as detailed by the Court of Appeal in Pasinis v R [2014] VSCA 97 [53-57].
27 The Prosecutor submitted, given the number of calls and their type, this charge cannot be classified as low level objectively. I find that this must be accepted.
Charge 2
28 This is a charge of attempt to pervert the course of justice. As I said to the Prosecutor, I consider the plea here is very valuable.
29 Given the text of the calls, in particular pages 280 to 281 of the Depositions, Exhibit D, and the comments of Mr Dixon about same in the Record of Interview, in answer to Questions 310 through to 329, I should say that upon analysis I maintain such view.
30 Mr Dixon was clearly wanting the victim to withdraw her statement which, on analysis of the calls, she was prepared to do. As she stated, her interest was never that Mr Dixon go to jail. She said that she had only asked the police to talk to him. (See page 280 of Exhibit D).
31 Albeit the plea and the element of intent involved therein, I find such crime upon the totality of the circumstances, as I appreciate them to be, to be of very low order culpability.
32 Before I leave this topic, I should mention the Record of Interview given what must have been obvious to the police, in that they obtained an independent person to assist with the Record of Interview. That is, they were aware of the mental condition of Mr Dixon. In those circumstances, I am amazed at their persistence, given that Mr Dixon told them what his legal advice was. Further, their persistence given their obvious appreciation of Mr Dixon’s mental health and the failure of the independent person to protect Mr Dixon from such persistence and abuse of his rights. I would decry the circumstances of this Record of Interview.
The plea
33 There was no issue that this was a timely plea. It has facilitated the course of justice and was utilitarian, in the sense that the Prosecution witnesses did not have to give evidence or be cross- examined.
34 The submission of the Prosecutor (Exhibit B [4]) was that there was no basis for a finding of remorse based upon the plea only. I have considered the cases referred to by the Prosecutor and do not accept that such a bald statement represents the law.
35 I refer to:
· Barbaro v The Queen [2012] VSCA 288, [36] to [42]
· Phillips v The Queen [2012] VSCA 140, [36], and [69] to [72]
· Mohtadi v The Queen [2018] VSCA 238, [23] to [33]
· Kellen Craft (a pseudonym) v The Queen [2021] VSCA 66, [23] to [27].
36 As set out at [69] of Phillips,[4] the question is always a matter for the sentencing Judge whether the subjective criteria of remorse can be inferred from a plea of guilty. Further comments were made in this regard at [72].
[4]Supra
37 As to the circumstances in this case, I find:
(a) The Prosecutor was incorrect to submit that there had been no remorse expressed in the Record of Interview (albeit my reservations already expressed as to the Record of Interview). Clearly, in answers to Questions 329 to 330, Mr Dixon has expressed remorse;
(b) Remorse and contrition were demonstrated here by what I have described as a very valuable plea as to Charge 2;
(c) I accept the submissions of Mr Battersby in this regard;
(d) With great respect to the decision in Barbaro, the comments made as to s6AAA, in my view, are somewhat nebulous. In this instance, I doubt, when the plea was made, whether Mr Dixon was conscious of such provision, albeit no doubt he would have been advised of the benefit of a plea of guilty;
(e) Also, as indicated in Craft, at [28], it is necessary to take into account when considering this matter, the mental condition and impact of such on the capability of a person to indicate remorse, and the necessity to take such into account when assessing a person’s capacity and whether remorse has been expressed in the reports generally of the medical officers. The concentration of such reports has been upon trying to change his lifestyle, rehabilitation and their conclusions, insofar as they do not specifically refer to remorse, are understandable given his mental condition. See for example Exhibit 7, the report of the NDIS workers in December 2023;
(f) The submission of defence counsel is confirmed by the forensic report received by the Court since the date of the plea, dated 14 February 2024, in particular, at page 4, and I quote from Exhibit F:
“… Mr Dixon was self-reflective and insightful about the negative impact of his behaviours on his victims. He expressed remorse and regret for his offending behaviours and identified that he needs to focus on maintaining a stable mental state in order to achieve his pro social life goals and not re-offend.”
38 Hence, in the circumstances of this case, I do find genuine remorse demonstrated by the plea, which I take into account in mitigation.
Personal circumstances
39 Also detailed in Exhibit 1 are the personal circumstances of Mr Dixon, [25] to [42], which are confirmed by Exhibit 4, his father’s reference, and further by the NDIS reports, Exhibits 3 and 7 and the Nexus report (Exhibit 9).
Mental health
40 I have already referred in these remarks to the diagnosis of his mental health from Ms Maynard, clinical psychologist (Exhibit 5), and the neuropsychological report dated 22 June 2020 of Anna McLaren (Exhibit 6), which diagnosed a traumatic brain injury, [17]. I indicate that each of such reports were before me in 2020, when I sentenced Mr Dixon to three years and three months gaol, with a non-parole period of two years.
41 Since that sentence, the Court of Appeal have handed down Brown v The Queen (2020) 62 VR 491, [56] to [76], confirming that a rigorous investigation is required of Verdins’[5] submissions, and the need, as Professor James Ogloff said, in regard to an alleged clinical disorder or personality disorder, to be one that has some profound effect on an individual’s cognitive capacity and behaviour. [56].
[5]R v Verdins & Ors (2007) 16 VR 269
42 I should say that, as I expressed in my earlier sentence in 2020 dealing with Mr Dixon, given his personal background and his mental issues, this process is quite challenging. Essentially it involves the balancing process referred to in DPP v Herrmann [2019] VSC 694, [79], where there is need for an overlap in the sentencing process of the principles referred to in Bugmy,[6] Verdins,[7] and Brown[8] at [72].
[6]Bugmy v R (2013) 249 CLR 571
[7]Supra
[8]Supra
Verdins
43 There is no dispute as to Mr Dixon’s mental makeup which I have already detailed.
44 There is no doubt as to his incapacity, within his mental capabilities, to cope with crises, which can lead to the commission of crimes.
45 A reading of the text of the calls set out in Exhibit D is gut-wrenching indeed, and no doubt the basis of much distress to the victim. It is to be pointed out that on a number of occasions in such calls, Ms Garrett professes her ongoing love for Mr Dixon and her desire, when telling the police of the circumstances of the breaches, that he not be jailed, but that help be made available for him. I consider in those comments she was very genuine.
46 Despite taking into account the principles set out in Verdins[9] at [32], I upon rigorous assessment, make the same finding, as I made at [34] of the prior sentence, that the totality of his mental condition does not, despite the fact that such was present at the time of the offending, establish that at such time Mr Dixon was unable to appreciate the wrongfulness of his conduct, exercise appropriate judgment or make a rational decision. Nor did such symptomology obscure his intent in regard to Charge 1.
[9]Supra
47 As accepted by the Prosecutor in regard to principles three and four of Verdins, such must be taken into account in the sentence, albeit the Prosecutor submitted, at [22], modestly. I would reject the submission of the Prosecutor that there is no evidence in regard to principle five. Upon the evidence that I referred to in the earlier sentence, which relates to the reports of Ms Maynard and Ms McLaren, principle five I find must be taken into account.
Bugmy v R (2013) 249 CLR 571
48 As the Prosecutor accepts, Mr Dixon suffered from profound childhood deprivation, which not only explains his criminality, in particular, as far as Charge 1 is concerned. Unfortunately embedded into him is a defective way of relating to partners, handling traumas in relationships and impacting on his cognitive network while under emotional distress. I find as to Mr Dixon’s moral culpability, in particular, for Charge 1, on the principles set out in Bugmy, such is reduced.
49 I then, of course, come to the great difficulty in this case which is a matter of balance. As indicated, in Herrmann,[10] in particular, at [64], the ongoing effect of a mental condition leading to an inability to control a violent response to frustration in a relationship, while decreasing moral culpability, calls for a weighting of the importance of protecting the community in any sentencing exercise. The important difference to note, from the determination which I made in July of 2020, is that there is no actual physical violence involved here. In that regard, I do not disregard the impact upon Ms Garrett of the threats made.
Worboyes v R [2021] VSCA 169
[10]Supra
50 The plea in this matter was effected in September of 2023 and Mr Dixon has been on remand since 15 February 2023 for a period up to the date of the plea of 359 days. It seems to me that the principles of Worboyes [2021] VSCA 169 [39] given the early plea made in this matter and the impact upon him of the restrictions while in prison, and the fact that a plea was made given the difficulties that the legal system was and to a lesser degree is still under, is such that an appropriate discount is required in the sentence for Mr Dixon in this regard.
51 I have noted the further defence submissions (Exhibit 8) as to the matter mentioned under “correction”, I note in the sentence the reference to the Prosecution opening being accepted as the facts upon which I sentenced. I do not consider any facts as detailed by me were misidentified, see [2] to [14]. The further letter from Leigh Booth as to the Nexus programme will be marked as Exhibit 9. The letter from Mr Dixon to the Court will be marked Exhibit 10.
52 The sentence in this case, as I have already said, is very complex. I note, in particular, the application of Mr Battersby for a combined sentence. Essentially this is based on the progress made in prison since his arrest, as detailed in Exhibit 2. In comparison to an earlier program upon prison admission in December 2017, Mr Dixon, during the Moroka Program, undertaken from June 2023 to September 2023, is said to have been an active participant in such a manner as to indicate decrease in acts of aggression, demonstrating notable shifts in emotion regulation and distress tolerance and an understanding of his own behaviours and responses to situations of high risk. I have further taken Mr Dixon’s letter (Ex 10) into account in this regard.
53 It is noted in the final report signed by Dr Simsion, senior clinical psychologist, on 30 November 2023 that Mr Dixon’s engagement in the Moroka Program was positive, but that he was still needing treatment. He needed to participate in an ongoing program of dialectical behaviour therapy in order to address his difficulties in coping in a community setting, achieve behavioural stabilisation and help him to observe and respond to periods of relative superficiality.
Sentence
54 As I have indicated twice in this sentence, in particular, reference to my earlier sentence of 2020 and an understanding of the seriousness, in particular, of Charge 1 in this Indictment, the sentencing of Mr Dixon is complex.
55 Pursuant to the principles set out by the High Court in Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] ALJR 91 at 1075, [64] to [68], Mr Dixon is entitled to a just sentence according to the law upon the facts as I have found them to be. He is entitled to individualised justice. I have attempted to do so.
56 I confirm that, after close consideration, I maintained the view, expressed to Mr Battersby, that a combined sentence is not appropriate here. In this regard I refer to the words of Priest JA in Hutchison v R [2015] VSCA 115, [17]:
“Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances.[7] There will be cases – indeed, many cases – where, having regard to the seriousness of offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. [8] At the risk of again transversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.”
57 Would you please stand, Mr Dixon?
58 In regard to Charge 1 on the Indictment, you will be sentenced to imprisonment for eighteen (18) months.
59 In regard to Charge 2 on the Indictment, you will be sentenced to imprisonment for six (6) months.
60 I order those four (4) months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1, Charge 1 being the base sentence. Hence the total aggregate sentence of imprisonment imposed on you is twenty-two (22) months.
61 I order that the period that you must serve, prior to being eligible for parole is sixteen (16) months.
62 The actual determination of the time when you are released from prison is not a matter that is in the hands of Judges. Indeed, as I understand the position, such recommendation is not necessarily always complied with. However, what should be conveyed to the Post Sentencing Authority is your excellent progress with the Moroka Unit and given such circumstances, my view that I see no reason why you should not be released in the very near future, given the amount of time that you have already served, when balanced against the actual sentence.
63 I declare pursuant to s18 of the Sentencing Act, that the 439 days you have served on remand be deemed service of this sentence.
64 Pursuant to the provisions of s6AAA of the Sentencing Act, I am required by Parliament to indicate to you the benefit to you of having pleaded guilty. This is obviously a very difficult task considering the multiplicity of factors that have been taken into account in your regard. However, doing as best I can to satisfy the requirements of Parliament, had you not pleaded guilty, the sentence I would have imposed upon you is imprisonment of thirty months with a minimum of twenty months to serve, as against the sentence that I have just pronounced.
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