Director of Public Prosecutions v Doherty

[2016] VCC 1749

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 16-01288

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN DOHERTY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:	18 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Doherty
MEDIUM NEUTRAL CITATION:	[2016] VCC 1749

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Hassan	Office of Public Prosecutions
For the Accused	Mr Farrelly	VLA

HIS HONOUR: 

1Sean James Patrick Doherty, you have pleaded guilty to one charge of burglary, one charge of making a threat to kill, one charge of common assault and one charge of criminal damage.  Those crimes carry maximum penalties of ten years, ten years, five years and ten years respectively.

2You are now 45 years of age.  You pleaded guilty at a reasonably early opportunity and made admissions to some of the offending, though not the threat to kill charge.  I accept that to a level there is a degree of remorse involved in all this, and you must get the utilitarian benefit of that plea of guilty. 

3You do have prior convictions but in my view they are of no significance in this sentencing process.

4Firstly, pursuant to s.464 of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you. 

5The circumstances of the offending are serious indeed.  You and Narelle Doherty had been married for a couple of decades.  Sometime late last year you separated, she left you.  You, I accept, have been suffering, and have suffered for some time, from depression and I accept also that you have some difficulties with, what is described as, autism.  You, as you said to the police, remunerated on all this and became, and continue to be, very jealous. 

6Shortly after 10 pm on 8 December last year, the complainant arrived home, unlocked the front door and went inside.  She went to her bedroom to get changed and go to bed, when she heard a male voice say "Oi".  She turned to see you standing behind her bedroom door.  You were dressed in black clothing with a dark covering on your head, and holding a 20 centimetre bread knife in your hand.  I can only assume that that bread knife came from inside the premises.  That gives rise to Charge 1 of burglary.

7You rushed at her yelling "I'm going to fucking kill you, you bitch" as you grabbed her, threw her face-down on the bed and held her down.  You put your hand over her mouth to stop her screaming and then pulled her hair, lifting her head up to show her the knife.  You held the knife near her throat and said "I fucking hate you, you slut.  I'm going to kill you".  That gives rise to Charge 2 of threat to kill.

8That was how it was contained within the Crown opening and, as I asked for and was given, her original statement.  That statement describes how she felt while this was occurring.  It says

"I was surprised when I saw him but I knew it was Sean.  I smiled at him and said to him 'What are you doing?'  He then rushed at me and yelled 'I'm going to fucking kill you, you bitch'.  He sounded so angry.  It was so horrible and scary.  He grabbed me, threw me on my bed and held me down and sat on my back.  He put his hand over my mouth to stop me from screaming.  He shoved his hands in my mouth and I thought I was going to pass out or die.  I thought he was going to rape me.  All I had on was a singlet top, a jacket and my knickers.  He pulled me by my hair and lifted my head up and showed me the knife.  He held it near my throat and said 'I fucking hate you, you slut.  I'm going to kill you'.  He was sitting on my back so I couldn't move.  I really thought I was going to die.  He pulled my mouth open and then pushed my face into the mattress and held me down.  Sean kept accusing me of having an affair".

9You got up and directed her to follow you to the kitchen.  She tried to escape, or run, but was thrown to the floor by you.  That gives rise to Charge 3 of common law assault.

10She managed to get back inside the bedroom and barricade herself in to prevent further assault, until taking the opportunity to flee the house and run across the road, hiding while you remained at the house.  You appeared as she walked back towards the house.  You smashed her mobile phone on the concrete and took her keys as you left the premises, obviously so she could not contact anybody or drive anywhere. 

11Inside the house she found two dressing gown ties, two arm slings and a gag hidden behind the couch in the lounge room, together with a cricket bat and a knife in a bedroom.  All had been left there by you. 

12The following day you went to the house and returned the keys you had taken the previous night.  As she drove to work you followed her, making gestures at her.  You walked into her workplace, in front of others, and yelled "So you went to the police, did you, you fucken dog".  Later that day, after discussing it with other work people, as I understand it, this was reported to the police. 

13It seems to me that there have been no proper understanding of just how serious this is, from your point of view.  You are not charged with aggravated burglary.  That would give rise to the maximum penalty of 25 years.  It seems to me that to go into a house equipped as you were, clearly to tie her up, to seriously assault her, and then hid and waited for her to return, is far more culpable than if you simply went in, believing of being reckless as to whether someone was there.  This, in my view, is a very serious example of burglary. 

14You are to be sentenced for the intent, and bearing in mind the items of bondage, if I can use that expression, that you have taken with you, that intent was evil indeed.  The threat to kill is, in my view, at the highest end of threats to kill.  To hold a defenceless woman down, put a knife near her throat and say "I'm going to fucking kill you, you slut", to the point where she believes that you are going to, and would clearly have believed you were going to, is, as I said, a very serious example.

15The common law assault relates to her trying to escape from being assaulted.  The criminal damage, in a situation such as this, pales into insignificance. 

16I am told from the Bar table that there has been some sort of, at least, amicability returned to the circumstances between you and your wife.  The doctrine of law relating to forgiveness is that I simply take it into account insofar as the prospects of a future rehabilitation are concerned.  There is no evidence before me in respect of that and I simply take it at face value, what the learned told me that she had been told. 

17The difficulty with forgiveness in circumstances such as this, and the accused getting a benefit from that forgiveness, is that in my view it has a tendency to legitimise the conduct of the perpetrator.  In any event, I take it into account in the way that I have indicated.  This is serious offending indeed.  It calls for the application of general deterrence and, in my view, specific deterrence, as well as denunciation and appropriate punishment.  A submission was made that a Community Corrections Order would be appropriate, and I had you assessed, making it clear that that was not to be taken as an indication. 

18Being well aware of the provisions of s.5(4)(c) of the Sentencing Act, the decision in Boulton and authorities since, I have taken the view that a Community Corrections Order here would be wholly out of the range.  It would, in my view, not even approach the seriousness of what you did. 

19Domestic violence is to be abhorred at all times.  Domestic violence to this level is even worse.  In my view a custodial sentence of significant proportions is the only sentencing option available here, and in determining the length of that sentence I then look at matters personal to you. 

20I have a report from a Dr Ratnicka, a psychiatrist, a Dr Entwistle, a psychiatrist, and from psychologist, Pamela Matthews.  In short it could be said that you and your wife had been married for a long period of time.  I accept that you had major depressive disorder, that it would have been exacerbated around about this time on the separation.  That depression had been in existence for quite some time and in June of last year was said by Mr Entwistle to have been in partial remission. 

21You clearly have worked most of your life until suffering from a back injury and I accept that you had been a good provider over an extended period of time.  It is said that the behaviour on this occasion was out of character for you and your priors would indicate that that is so.  However, I am not privy as to whether she had ever left you before and what your reaction had been then.  You told the police this was all based on jealousy. 

22You have children and, as I understand it, contact has been maintained with them.  Originally there was an intervention order in place and I have been told, and I accept, that has been varied so that the contact could be greater.  Your real problems appear to have commenced around about 2010 with a work related injury. 

23Submissions were put on your behalf.  It was put, for example, that the conduct was not protracted.  What can be simply argued with that, is that was because, or may well have been because, she escaped.  The report of Dr Ratnicka I have taken into account and he described you as first developing depression, and I see elsewhere it seemed to have occurred earlier, following your mother's death in earlier 2010.  It is clear that over that period of time since then you have been on various anti-depressants and various medications. 

24Mr Entwistle, who saw you for the WorkCover claim in May of last year, made a number of observations.  He said that at that point in time you were describing your health problems.  You were otherwise well, other than for the psychological difficulties.  He then goes through your work history, and I am thinking there is no need to do that now. 

25He then talks about how having lost your previous occupation at that time, that you were "a prick at home", you taking it out on others, your wife and children, that you were irritable, snappy and had become withdrawn.  He said that your mood and spirits had declined, that you felt useless.  He said there were no suicidal symptoms and you were beginning to experience "the dark places again". 

26He said that with time your mood symptoms had improved.  I accept that what he is referring to there is the previous depression that you had had.  He then went on to describe you were having a major depressive illness in partial remission. 

27Ms Matthews, the psychologist who subsequently examined you, made a number of comments and, as indicated yesterday, there is a couple of them that I just simply do not accept.  When you spoke to her in relation to how this offending occurred, you told her that you felt "gutted", "jealousy".  "I thought over and over about her".  You tried to tell her that the - as I understand what you are trying to say, that the bondage was some sort of mutual activity.  That has never been taken any further certainly in front of me. 

28She reports that you had undertaken a men's behavioural change program.  That was not the case.  You told her that your relationship with your ex-wife is, as you claimed, "Closer than we've ever been.  We see each other daily, talk about the children and grandchildren".  That is laudable. 

29She then goes through the history.  She reports that your mother's death was in 2004, not 2010.  She accurately says you were on anti-depressant medication for a long time, that you are currently on Cymbalta.  You apparently reported to her that you had not been monitored by a psychiatrist over the last 12 months and she had referred to your medical records supporting the view that you have suffered depression and anxiety over many years.  She went through risk assessment tests.  I do not need to go those here.

30In the ultimate, she said that you presented overall with a mild to moderate generalised risk of reoffending in a similar context of acute psycho-social stress.  However, there are no current specific risks to past partners.  I then asked during the course of the plea, since it had occurred basically what form of treatment and what sort of assistance had been put in place.  It seems clear that other than medication, there is none. 

31She said “the circumstances of this matter are bizarre and unusual in the context of the relative stability of Mr Doherty's adult lifetime, and deeply concerning, given the lack of insight he displayed at the time, and continues to partially/somewhat display in regard to the impact upon his former wife.”  I indicated before, I think there has been a failure to understand just how serious all this is. 

32She was of the view that you exhibited mild features of autism spectrum disorder, and I take that into account.  So far as a custodial sentence is concerned, I accept that that would make custody more difficult for you for both of those conditions.  She then said

"In the writers' opinion, Mr Doherty's difficulties with verbal expression and interpersonal deficits, including difficulties reading or understanding the emotional states of others, are features that are highly likely to have been a significant contributor to his behaviour before the court".

33That is a very, very difficult concept to accept.  These were premeditated, terrifying, intended to be terrifying, acts that you carried out on this woman and in my view has very little to do with your difficulties in expressing yourself. 

34She went on to say:

"The writer is flabbergasted that, given the" - she says 'bizarre', I do not accept that necessarily - "nature of Mr Doherty's offending, in the context of a mental health history, and behavioural stability over an adult lifetime.  He was not sent for psychiatric review at an early date post offending and still has not been sent for psychiatric review". 

35I share her view as to being flabbergasted by that.  The end goes on to say that you completed a men's program, which in fact, you have not. 

36The prospects of your rehabilitation, I think, in the end are going to have to be up to you.  Very little has been done about it since all this offending occurred, and as I have said, I, in a situation such as this, have a real concern that the acquiescence at least, or forgiveness, if that is what it would be fairly called, of the victim of such offending has a tendency to legitimise it and reduce in the mind of people the seriousness of this sort of conduct.  The community will not tolerate this sort of violence towards women or any family members, and most certainly not at this level. 

37The risk of you reoffending has been determined by her as being moderate, in circumstances where there has been no protective matters put in place.  Her view is that under psychologist-stress it could happen again.  They are all matters that I have to take into account.

38I have to endeavour in this situation to take the view that ultimately there is no reason why you could not be effectively rehabilitated but the fact of the matter is that here you fall to be sentenced for what, in my view, are very serious examples of burglary and threat to kill.  The assault is not in the same order, and as I have said, the criminal damage pales into insignificance.  But in any event, you must receive a very significant sentence and you will. 

39On Charge 1, the burglary, three years imprisonment;

40On Charge 2, threat to kill, two years' imprisonment;

41On Charge 3, common assault, one year imprisonment;

42On Charge 4, criminal damage, one month imprisonment.

43I direct that 12 months of the sentence imposed on Charge 2, and three months of the sentence imposed on Charge 3, be served cumulatively upon each other and upon the sentencing imposed on Charge 1. 

44That gives an effective head sentence of four years and three months' imprisonment.

45I direct that you serve a minimum term of two years and nine months' imprisonment before becoming eligible for parole.  As I understand it, there is no pre-sentence detention?

46MS HASSAN:  No, Your Honour.

47HIS HONOUR:  Insofar as s.6AAA is concerned, I say that in these circumstances, had this been fought out as a trial, and you had been convicted of these matters, you would have been sentenced to imprisonment for six and a half years with a minimum term of four and a half years.  Are there any other orders I have to make? 

48MS HASSAN:  No, Your Honour.

49HIS HONOUR:  You can remove him, thank you. 

50MR FARRELLY:  Sorry, Your Honour.  I don't have it to hand but perhaps if I could email your Associate a short ‑ ‑ ‑

51HIS HONOUR:  I can't hear you.

52MR FARRELLY:  I don't have it to hand but I believe there might have been one or two days PSD, as he was remanded in the Magistrates' Court.  I just don't have that to hand this very second.

53MS HASSAN:  No.  I don't have any information to that effect on any file that I've seen, Your Honour, so I don't know.

54MR FARRELLY:  I'll check.  Certainly Mr Doherty made a bail application himself but maybe he was arrested that very day.

55HIS HONOUR:  That's what it smacks of to me.  It's a situation where I've got seven days to correct it if the PSD is wrong.

56MR FARRELLY:  Yes. 

57HIS HONOUR:  I'm not aware of any so I'm not proposing to disclose any.  If you can establish that there is and sent to me, then I can just simply do that administratively. 

58COUNSEL:  Thank you, Your Honour. 

59HIS HONOUR:  There's no other orders I have to make?

60MS HASSAN:  No, Your Honour.

61HIS HONOUR:  Could I simply at the conclusion of the circuit thank Ms Hassan and instructors for, if I may say so, extremely well conducted and good nature to the conducted circuits.

62MS HASSAN:  Thank you, Your Honour. 

63HIS HONOUR:  It's very much appreciated.

64MS HASSAN:  Thank you, Your Honour. 

65HIS HONOUR:   It assists greatly for everybody when that occurs and I'll certainly making that known to others.  Thank you. 

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