Director of Public Prosecutions v Drew
[2022] VCC 929
•17 JUNE 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-01827
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM DREW |
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JUDGE: | Her Honour Judge Syme | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 MAY 2022 | |
DATE OF SENTENCE: | 17 JUNE 2022 | |
CASE MAY BE CITED AS: | DPP v Drew | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 929 | |
REASONS FOR SENTENCE
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Subject: Intimate partner violence
Catchwords: Persistent controlling and coercive behaviour - Aggravated burglary – Animals as victims of Intimate partner violence – ADHD – Biological father committed suicide – Offender discovered biological father’s body at age 13 – Serious offender designation
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic).
Sentence: 3 years and 9 months imprisonment with a non-parole period of 1 year and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. MacDougall | Ms R. Fitzpatrick |
| For the Accused | Mr C. Patel (on behalf of Mr M. Kozlowski) |
HER HONOUR:
1 Mr Drew, you have pleaded guilty to a number of matters. Firstly, a threat to destroy property at Wodonga on 9 January 2021. You made, without lawful excuse, a threat to damage property belonging to Maryse Tanu[1] for the purpose of making her fear that the threat would be carried out. The maximum penalty for this offence is five years’ imprisonment.
[1] A pseudonym.
2 You have also pleaded guilty intentionally damaging a door belonging to Maryse Tanu without lawful excuse; an offence occurring the same day and at the same place. The maximum penalty for this offence is 10 years’ imprisonment.
3 You have additionally pleaded guilty to a charge of assault on the same day, at the same place, against Maryse Tanu; a rolled-up charge. The penalty for this offence is five years’ imprisonment.
4 You have further pleaded guilty to a fourth charge, aggravated burglary, occurring on the same day at the same place. You entered a building at Pearce Street as a trespasser with an intention to commit an assault against Ms Tanu and, at the time of entering, Ms Tanu was in the building, and you knew or were reckless as to her being so present.
5 You have also pleaded guilty to a fifth charge, namely, a threat to kill Ms Tanu – without lawful excuse, intending she would fear that the threat would be carried out or that you were reckless as to whether or not she would fear that threat.
6 Further, you have pleaded guilty to an additional charge of making a threat, without lawful excuse, to damage property belonging to Ms Tanu, again, with purpose of causing her fear that that threat would be carried out.
7 Finally, sir, you have pleaded guilty to a seventh charge, namely, that at Wodonga, between 15 December 2020 and 14 January 2021, you stalked the same person, that is, Ms Tanu.
8 In relation to all of these matters, in circumstances that I will refer to later, you were remanded in custody following your arrest on 25 January 2021. You have been in custody since that time. The time you have spent in custody will be taken into account at the conclusion of my sentence.
9 I note the serious offender provisions are relevant to this sentence and to you. I am told that you were sentenced at the Wodonga Magistrates’ Court in relation to three charges, separate to these, of making a threat to kill and you were sentenced to an aggregate term of imprisonment of 72 days in 2019.
10 The offence of make threat to kill is a serious violence offence pursuant to the schedule 1 of the Sentencing Act. Therefore, upon your conviction on
Charge 5 of the Indictment, you will be declared a serious violent offender on that charge and that may have consequences later.
11 Pursuant to section 6E of the Act, any term of imprisonment imposed on Charge 5 must be served cumulatively on the other sentences imposed on the Indictment I have before me unless otherwise directed.
12 Now, I will say at this stage, that I do propose to otherwise direct as the offending contained in Charge 5 was part of a series of offences that culminated in the more serious offence of aggravated burglary.
13 The total sentence I impose will reflect the totality of the offending on that particular day and will take into account the serious nature of your violent offending. But I do propose to order that the sentence for that charge be served largely concurrently for the reasons that I have, and will set out.
14 With respect to your prior criminal history, I note you have admitted some significant prior convictions. Some of those significant prior convictions related to a time when you were still a juvenile and I will make some observations about that later.
15 However, the circumstances of the prior convictions as an adult will not allow in and of itself, a degree of leniency in the sentence that I impose today. In relation to the serious offender declaration, the court must regard the protection of the community as a principal sentencing purpose.
16 While not excluding other purposes, the court may sentence to a term that is longer than one appropriate to the gravity of the offending, that is, a disproportionate sentence. This is, I acknowledge, a rare consideration and taking into account some of the mitigating circumstances relevant to you and your background and your young age, I do not intend to impose a disproportionate sentence.
17 Considerations of totality of the offending are still relevant to the criminality of your offending, taking into account the relatively short time over which most of the offences were committed.
18 I also note that you were just over 21 years of age when the offences were committed.
19 You should understand though, Mr Drew, that in the future, you will not have the advantage of being such a youthful offender. You are expected to learn and take advantage of the opportunities that the Court offers you, has offered you in the past, and will, by this sentence, notwithstanding the length of it, continue to offer you.
Circumstances of offending
20 The facts relevant to the offences as set out in the prosecution opening are not in dispute. At the time of the offending, you were aged 21 and had already been the subject of a youth parole order.
21 Ms Tanu was only 18 years of age. You commenced a relationship in November 2020. That relationship lasted a very short three weeks.
22 On 13 December 2020, you attended at her home and asked to go through her telephone. You had no right to do so, and she did not let you. You took the phone off her and this led to an altercation between you and her. She called police. After police arrived, she indicated that she did not want to take the matter any further and they left. Shortly afterwards, however, you returned to her home and demanded to be let in. She refused. You had no right to demand to be let in.
23 You became abusive and aggressive. When approached by police, you denied that you had done anything wrong. However, as a result of this altercation, an intervention order was granted at the Wodonga Magistrates’ Court on
4 January 2021. Ms Tanu indicated that she wanted to end her relationship with you.
24 On 9 January 2021, at approximately 1:00 am, you telephoned Ms Tanu indicating that you were coming around to see her. Again, I observe, you had no such right. You sent a text message saying, ‘I know you’re in there’, a message I find, was intended to cause alarm. When you arrived, you yelled at her that you were going to smash her windows. This behaviour relates to Charge 1, making a threat to destroy property. The maximum penalty, as I have noted, is five years.
Objective gravity of the offending
25 I assess the objective seriousness of the offending to be below mid-range. The central point of aggravation is that you were proximate to her house, in the middle of the night.
26 CCTV footage captured you banging on the door and verbally abusing Ms Tanu. It also shows you unsuccessfully attempting to pull the CCTV camera down. You subsequently turned off the power in the home, leaving it in darkness. When the door was opened in an attempt to stop your behaviour, you kicked the front screen door causing damage to it.
27 Evidence on the CCTV shows that you threatened to put something through the window. You continued to abuse Ms Tanu. You warned her several times and you continued to threaten to smash the window. All of this behaviour was designed to make her very frightened. You forcibly entered Ms Tanu’s home while it was in darkness, using your mobile phone light in order to see.
28 Ms Tanu went to another part of the house and attempted to call for help. At this stage of the event, I would note that this aggravated burglary, as I am now describing, was a serious offence indeed. It culminated in you forcibly entering the home while the home was in darkness, in circumstances where you knew you were not wanted.
29 While Ms Tanu went to another part of the house and attempted to call for help, she heard her dog yelp and called out to ask what you did. She told you to leave the house and tried to physically move you from the kitchen area. You grabbed her by both of her arms near her shoulders and started pushing and shaking her. This event relates to the rolled-up assault charge and the facts continue later on.
30 What you did caused the Ms Tanu pain and she received a scratch on the inside left of her arm where you were holding her; a serious example of the charged offence. Ms Tanu retaliated by kicking you between the legs. She continued to defend herself. Eventually, you were pushed outside of the house.
31 You grabbed the door, opened it and re-entered the house so that you were standing in the doorway. This re-entering, in circumstances where you knew Ms Tanu was in the house, where you knew she would require you to leave, makes the entry more serious. This charge relates to the aggravated burglary, again, Charge 4.
32 You presented as being angry. You kicked the Ms Tanu’s left wrist with your leg, causing her pain. This is a continuation of the assault on her, Charge 3. Again, Ms Tanu kicked you in self-defence, pushed you out of the door, and locked the door. She called Triple 0. The police arrived shortly afterwards and took Ms Tanu to hospital. She was observed to have tenderness and swelling to her left wrist and an x-ray was arranged. Apparently, there was nothing broken.
33 Later in the day, still 9 January, you sent Ms Tanu text messages, indicating firstly, that you were coming to her place right away and further indicating a threat to her life and threatening to smash her windows to get inside. You also threatened to kidnap whoever was inside. Now, those threats in the circumstance of your prior behaviour were, indeed, very serious.
34 In relation to the stalking charge, generally, between 14 December 2020 and 14 January 2021, you stalked Ms Tanu by relentlessly contacting her on the phone, through social media and calling her from private numbers after she blocked your telephone number.
35 You called her between 20 and 30 times a day. You went through her Facebook account and contacted males in the Wodonga area who had liked her photos. You took screenshots of photos from her Facebook account and messaged her about them. You placed messages on her Facebook, indicating that she was going to get bashed on the weekend and that you were watching her and you were also finding people referred to in her Facebook account. You also threatened to burn her house down.
36 This excessive calling included 41 calls between about 3.00 am and 4.45 am on 24 December 2020, 67 calls between 1.00 am and 11.00 am on the same day, 67 calls between 6.10 pm on 6 January and 1.08 am on 7 January 2021, and a further 61 calls between 11.00 pm on 8 January and 1.15 am
on 9 January 2021.
37 This level of stalking, including the personal threats, is a serious form of the offence charged. Police investigated, ultimately located you and approached you on 25 January. You attempted to flee but were arrested approximately 10 to 15 minutes later.
38 You were charged with these offences. Ultimately, they were resolved by your plea to the above charges on 18 March this year. As far as I am aware, there are no factual matters in dispute which remain. The matters which make your offending more serious and must be proven to the standard of beyond reasonable doubt are the matters that I have referred to above.
39 Those matters which are mitigating or in your favour will be assessed on the balance of probabilities. Matters that make the offending more serious include the repetitive nature of the offending and the fact that you and Ms Tanu were previously in a personal relationship. As such, she allowed you some entry into her private life. You knew where she lived and other details of her private life. The entry into somebody else’s life entails a certain degree of trust. You significantly breached the trust that she had placed in you by behaving in a threatening manner, and in a frightening way, towards her.
40 You seemed to believe you had some form of entitlement to treat her as your own property and to behave in a violent and threatening manner towards her. You did not.
41 On the other hand, when looking at the offending as a whole, most of the violence, the actual violence was committed and contained in less than an hour in the early hours of the morning of 9 January. The following threats were later in the day. In all, the offending apart from the stalking occurred over several days. The stalking occurred over about a month. The extreme violence is concerning, but the length of the offending was limited.
42 However, you stopped the activity only when arrested, not because you thought it was the right thing to do. This indicated that over that month period, your actions were continuous and worrying for Ms Tanu and indeed, for the community as a whole. The 10 year maximum on this offence indicates the seriousness with which offences of this nature are righty treated. Each offence is serious but not the most serious example of the offences charged. There is a certain overlap in each piece of offending behaviour. This observation will result in less accumulation between the offences that might otherwise be the case if the offending was more discretely contained.
43 Ms Tanu has not made a victim impact statement and has indicated that she does not wish to. The court is, however, well aware of the serious personal consequences which are caused by domestic violence offences of this nature.
44 As I have observed, offences of this nature are, by their very definition, a breach of trust. The particular offences show a significant degree of threats and violence and they are serious.
45 In relation to your personal background, I note that you are still only 23 years of age. Your personal circumstances are set out in your psychologist’s report dated 18 April 2022. The prosecution did not require your psychologist to attend for cross-examination and the contents of the report are accepted.
46 Your family history shows that you are one of seven children and you presented that your childhood was subject to exposure to family violence – a matter not in dispute. It is reported that your parents were heavy drinkers and often engaged in yelling and arguing. Your parents separated when you were only one year of age and you remained living with your father. It is reported that this was not always a happy arrangement. When you were 13 years of age, sadly, your father committed suicide and unfortunately, it was you who found his body.
47 It is reported that you blame yourself for his death. This, of course, cannot be true. I accept, however, that you finding your father at that age and in the circumstances in which you found him was traumatic. I do not know if this has ever been discussed at length with you but it is one of the areas of therapy that is suggested and should be addressed as a matter of urgency.
48 After your father’s death, you returned to the care of your mother. But again, that was not satisfactory and is reported to have been traumatic and violent. You were eventually forced to leave and ended up in residential care between the ages of 14 and 19 years of age. You completed school at Year 8. You have worked on a casual basis in various unskilled positions.
49 The psychologist report prepared by Ms Bovenkerk is instructive and informative. It was available to the pre-sentence report writers and they have taken this into account. In addition to containing observations and your history, the psychologist has undertaken testing and screening relevant to your presentation.
50 She has assessed these tests in a thorough and objective manner. She observes that your childhood diagnosis of ADHD may still be relevant to your presentation. She observes that in adulthood the ADHD contributes to impairment with academic, occupational and inter-personal domains. She further observes that you have in all likelihood developed
post-traumatic stress disorder, as well as depressive and anxiety symptoms.
51 She observes that this is significant and significant life events appear to be a trigger for the deterioration of your mental state and have contributed to increased anti-social behaviour as evidenced by your aggression and earlier by your truancy at school and on the whole, relevant to the commencement and continuation of your substance abuse, which has continued for many years. She observes that this is considered representative of a maladaptive form of coping with your emotional distress.
52 What this means, Mr Drew, is that for a whole range of very understandable reasons, your presentation today and as represented by your offending behaviour, is in all likelihood, a series of inappropriate criminal, but in some ways, understandable, responses to the trauma of things that happened to you in your young life.
53 Page 11 of the psychologist report contains what I consider to be a series of sensible and well thought out recommendations for your future care and treatment. She observed that a prison environment is perhaps more difficult for a person with your current presentation. But conversely, it might well be that the isolation brought about during COVID, while I am sure has been difficult for you, has probably kept you away from some of the potentially more unpleasant features of a custodial situation.
54 Ms Bovenkerk suggests that referral to a psychiatrist to assist initially with your ADHD treatment and possible psycho stimulant medication may assist in managing your emotional issues and risk taking behaviour, while other issues in your life are addressed. I will recommend this report and I have done so to those who are assisting you in the future.
55 I also refer to your prior offending as a juvenile. You do have a significant criminal record as a juvenile. The offending while you were young, in effect, supports the observation that you were often unsupported while you were young and your disruptive and unsupported upbringing is closely related to your offending now because it is closely related apparently, to your substance abuse and other things that have gone wrong in your life.
56 Therefore, a further consideration arising from the psychologist report in the sentencing process are what is called the Verdins principles. In that case the Court of Appeal identified several ways that mental impairment or psychological impairment, in general, may be relevant to sentencing.
57 In the context of this case there is no dispute from the prosecution that your moral culpability is reduced due to your mental health diagnoses. As such, your moral culpability is somewhat reduced and therefore, the need for denunciation is reduced and you are in many ways a less appropriate vehicle for general deterrence as a sentencing consideration.
58 On the other hand, deterring you personally and specifically from committing offences such as this is still important. In my view, you must personally understand that behaviour like this must and will always result in a custodial sentence. I acknowledge, however, that at your young age with your mental health presentation, there is a real risk that imprisonment for much longer will have an adverse effect on your mental health and your future development. Therefore, further imprisonment will have a detrimental effect on your prospects of rehabilitation.
59 As in many sentence considerations, the purposes and requirements of sentencing pull in opposite directions. This series of offences is serious. Your moral culpability is reduced to some extent but it is still important to address at your age those issues which may assist you in your rehabilitation and that is what I propose to do.
60 You must understand that at this stage, and at your age, you will be given an opportunity, which I suggest you ought to try to take full advantage of. Any further offending of this nature, now that you fall into the classification of a serious offender, can only result in lengthier prison terms in the future.
61 I note that you do not appear to have a long association with many members of your family but I am told they are supportive. In order to investigate their ability to support you further and to investigate their understanding of your very complex needs, I requested that a further pre-sentence report be prepared in order to address your current circumstances, your family’s circumstances and to address whether a placement with members of your family might be able to be supported.
62 That report is now available. It is far from positive but some enquiries have been made on your behalf. I detect that some concern still exists about members of your family being able to offer suitable support. However, no doubt you will receive directions on how and with whom you are able to associate and live with as a condition of your ultimate supervision.
63 For the reasons set out in the report currently, your assessed risk of re-offending is still considered to be high. It is observed that you have engaged with some in-custody programs and that is a positive, as far as I am concerned. It shows a real effort to resolve or at least address and understand some of your issues.
64 It is reported that currently, you still fail to understand the apparent teachings of those programs. For example, in recording your attitude to the current offending, it is reported that you said that you were using alcohol and cannabis at the time and I accept that you were. You reported that you had been misinformed about Ms Tanu’s movements and behaviour and that you were reacting to feelings of jealousy. That again appears to be obvious. It is noted that you had argued throughout the course of your relationship with Ms Tanu and the things that you were saying were not necessarily isolated to this offending.
65 You stated to the report writer that you were over behaving like this and that you wanted to address the underlying causes of your behaviour and to reduce the likelihood of it happening again. That is a very good first, I might observe, sir. I observe, however, that report writers also report that there was a short discussion about past education you had received from such programs, such as the Men’s Behaviour Change and whether you felt you were able to apply this education. It was noted that when provided with the opportunity to do so, you did not express remorse for your actions and their impact upon Ms Tanu.
66 Now, it might well be, sir, that it is too early for all of those lessons to sink in at the one time. More help is needed. Your enrolment in those programs shows to me at least, a desire to change. Your reasons for this desire seem to be a desire not to be in custody, which makes sense.
67 You are yet to understand the consequences of your offending on Ms Tanu and therefore, on the community as a whole and on other people you might in later time have a relationship with. Your willingness to alter your responses and reduce your substance abuse is a very good start. I perceive that significant support will be required and it seems that Corrective Services anticipate that.
68 It is also noted that employment is considered to be a key factor in any future rehabilitation and that you should be supported to obtain suitable employment and/or to return to study to increase your future employment prospects. When available I note that you have worked in custody
69 So that all of these matters could be properly and thoroughly addressed, probation services have prepared a full report and they indicated that if you were placed on a Community Corrections Order they would involve themselves in supervision, assessment and treatment, including testing for drug abuse and dependency, assessment and treatment for mental health issues, assessment and treatment for a potential residential facility for withdrawal and/or for rehabilitation for dependency for alcohol and drugs or other issues.
70 They also acknowledge that mental health assessment and treatment to include psychological, neuro-psychological or psychiatric treatment in a hospital or residential facility ought to be considered. And otherwise, any programs or courses to address offending behaviour are on their wish list of matters that should be addressed.
71 That report and its recommendations ought properly form the basis to inform Corrective Services of the direction of supervision required. I observe that in the past you have been prohibited from associating with certain people. It will be in the future, up to Corrective Services which, if any, prohibition orders need to be reinforced or others required.
72 Ultimately, you must modify your own behaviour yourself. It may be a good idea if on your release you may be well served by entering into a residential rehabilitation service that can cater for your mental health and substance abuse issues. I accept that with your criminal record some eligibility criteria may limit your options. However, considering the difficulties with your intended domestic circumstances outside of custody, this may well be a viable option and something that I will recommend to Corrective Services or Parole Services.
73 Mental health assessment and treatment is essential in my view. The psychologist report and the programs you have undertaken and the recommendations in the psychologist report are a useful starting point.
74 Finally, I note, sir, that you were remanded in custody as from 25 January 2021. As at today’s date you have spent nearly 17 months in custody. To a large extent, this time in custody must be reflected in both further custody to be served and the manner to which it is to be served.
75 While a sentence which comprises a non-parole period slightly in excess of
17 months is appropriate, your need for extensive supervision on your release, both because of your youth and your need for significant support, convinces me that an imprisonment term with a very significant finding of special circumstances is the correct way of dealing with all of these offences.
76 I will recommend that Parole Services be able to utilise the pre-sentence report and the psychologist report as a guide to the sort of supervision that will be required on parole.
77 I further recommend to Parole Services that consideration be given to assessing you for appropriate residential rehabilitation placement on your release from custody when you are eligible for parole. Your eligibility for parole will reflect the time you have already served. This time will be acknowledged when considering the totality of the sentence to be imposed.
78 I have already noted very much in your favour that you have taken some opportunity to undertake courses to address your rehabilitation while you have been in custody.
79 For this reason, I propose to sentence you to a term of imprisonment but I have structured the sentence to reflect the totality of your offending first of all and secondly, the need for supervision on your release.
80 What I am going to do now, sir, is I am going to deal with the counts individually in the order that I propose the accumulation to take place.
81 Firstly, Count 4, the aggravated burglary, I propose to sentence you to an imprisonment term of two years and nine months and this will be referred to as the base sentence.
82 Count 5, threat to kill, six months term and for the reasons that I have already given, that sentence will be served concurrently.
83 Count 1, threat to destroy property, a six months’ imprisonment term. Again, this is a concurrent sentence.
84 Count 2, criminal damage, a six month imprisonment term. Again, concurrently.
85 Count 3, the rolled up assault charge and 18 month imprisonment term, which will be a period of three months’ accumulation on top of the base sentence.
86 Count 6, threat to damage, which is again, a rolled up account, a six month concurrent term on the base sentence and Count 7, stalking, an 18 month imprisonment term, to be served with a period of a nine months’ accumulation on the current sentence.
87 In total, sir, that total sentence is a three year and nine months sentence.
88 However, I will order that you complete a non-parole period of one year and
10 months before being eligible for parole and therefore, a parole period or additional term of one year and 11 months.
89 Taking into account pre-sentence detention as at today of over 500 days, it is my calculation, sir, which will have to be confirmed, that you will be eligible for parole consideration after 24 October 2022.
90 I have structured the sentence in this way, so that the parole authorities have time to take into account my recommendations as to significant support that you will need on your release. I will recommend to the Corrective Services authorities that they start work on arranging your supervision on parole as soon as possible, so that as soon as you are eligible for parole you can make that application.
91 Finally, I note that were it not for your plea of guilty an imprisonment sentence would have been imposed but a total term would have been a four and half year term with a non-parole period of three years.
92 And finally, I make the declaration of a serious offender in relation to sequence five.
93 Anything else, Madam Prosecutor?
94 MS MacDOUGALL: Your Honour, for avoidance of doubt, by my reckoning the pre-sentence detention already served from 25 January 2021 up to and including yesterday, 16 June, is 508 days.
95 HER HONOUR: Is that what we got?
96 MR PATEL: I had 509, including today.
97 HER HONOUR: Five hundred and nine, including today, yes, we agree.
98 MS MacDOUGALL: Thank you, Your Honour.
99 HER HONOUR: That ought to be calculated by the registry. As I said, my guess is that he will be eligible to be considered on parole after 24 October. That is just my guess. Registry will confirm that but it will be in that vicinity.
100 MS MacDOUGALL: Thank you, Your Honour.
101 HER HONOUR: All right. Anything else from you, Mr Patel?
102 MR PATEL: No. Thank you. I concur with my learned friend about the dates, the calculation.
103 HER HONOUR: Yes. What I am going to do, what my practice is, is we’ll vacate the courtroom, so you can have a private conversation online with your client to explain anything that needs to be explained. Mr Drew, do you have any questions, sir, about the sentence that has been imposed?
104 OFFENDER: No, thank you.
105 HER HONOUR: All right. Mr Patel will be discussing it with you. He will be available to speak to you in just a couple of minutes. All right. We’ll adjourn now. Thank you. We will vacate so you can speak to him privately, Mr Patel. Thank you.
106 MR PATEL: Thank you, Your Honour.
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