Director of Public Prosecutions v Dunford
[2021] VCC 748
•8 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-01419
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAI (JYE) ANDREW DUNFORD |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 10 May 2021, 19 May 2021, 31 May 2021 | |
DATE OF SENTENCE: | 8 June 2021 | |
CASE MAY BE CITED AS: | DPP v Dunford | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 748 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence - Causing Injury Intentionally, False Imprisonment, Make Threat to Kill, Cultivation of a Narcotic Plant, Attempt to Pervert the Course of Justice
Cases Cited:Verdins, Buckley and Vo (2006) 16 VR 269 [32]
Sentence: Total effective sentence 4 years and 9 months' imprisonment, non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Saville | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J. Barriero | Criminal Lawyers Geelong |
HER HONOUR:
Introduction
1Jai Andrew Dunford, you have pleaded guilty an indictment containing the following counts:
· Charge 1, intentionally causing injury to Rhiannon McCulloch[1], which carries a maximum penalty of 10 years’ imprisonment and/or a fine of 1,200 penalty units;
· Charge 2, false imprisonment where Rhiannon McCulloch is the victim, which carries a maximum penalty of 10 years’ imprisonment;
· Charge 3, false imprisonment where Adele McCulloch[2] is the victim which carries a maximum penalty of 10 years’ imprisonment;
· Charge 4, make threat to kill Rhiannon McCulloch, which carries a maximum penalty of 10 years’ imprisonment and/or a fine of 1,200 penalty units;
· Charge 5, cultivate a narcotic plant namely cannabis L, which in the circumstances of this case I am prepared to find carries a maximum penalty of 1 year’s imprisonment or a penalty of not more than 20 penalty units or both; and
· Charge 6, attempting to pervert the course of justice, which carries a maximum penalty of 25 years’ imprisonment, with the following particulars: (a) that you telephoned Gary Dunford on 7 January 2020 in an attempt to persuade him to contact Rhiannon McCulloch and request her to withdraw the charges or alter her allegations with a view to having some charges withdrawn; (b) that you telephoned Shannon Dunford on 7 February 2020 and attempted to persuade him to contact Rhiannon McCulloch and request her to withdraw charges or alter her allegations with a view to having some charges withdrawn; (c) that you telephoned Shannon Dunford on 12 February 2020 and attempted to persuade him to contact Rhiannon McCulloch and request her to withdraw charges or alter her allegations with a view to having some charges with drawn; and (d) that you telephoned Shannon Dunford on 15 February 2020 and attempted to persuade him to contact Rhiannon McCulloch and request her to withdraw charges or alter her allegations with a view to having some charges withdrawn.
[1] A pseudonym.
[2] A pseudonym.
2A related summary offence of commit an indictable offence whilst on bail, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment, was uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to this charge.
3The circumstances in which you came to commit those offences are set out in the summary of prosecution opening for plea dated 12 April 2021 (Exhibit A). Your counsel filed a defence outline of submissions for plea dated 7 May 2021 (Exhibit 1), a psychological report by Dr Amy Dluzniak dated 5 March 2021 (Exhibit 2), a psychological report by Carla Lechner dated 12 April 2021 (Exhibit 3), assay results and a Department of Justice letter (Exhibit 4), a bundle of certificates (Exhibit 5), and a letter from the Department of Justice dated 13 May 2021 (Exhibit 6). I have since received a letter from you which I will now receive and mark as Exhibit 7.
4I have had careful regard to those exhibited documents, as well as the matters addressed in the days of hearing of your oral plea in mitigation.
Circumstances of offence
5On 1 January 2020 at approximately 12:30pm, you were at your home asleep in the lounge room. The complainant, Rhiannon McCulloch, with whom you were then in an intimate relationship, and her nine year old daughter, Adele, attended your address and knocked on the door and it was answered by you.
6Upon their entering your premises, you became aggressive and asked Ms McCulloch why she was there. You then punched her to the right eye. She ran to the front door and attempted to flee the premises, however, you ran and pushed the front door shut and pushed her up against the wall, grabbed her head by the hair, and you started banging her head into the wall.
7You continued to assault her by punching and kicking her. You grabbed her by the throat and forced her into a wall, damaging the plaster. This was all in the presence of Adele, who was in the lounge room and witnessed the assault. She tried to comfort her mother.
8Each time Ms McCulloch attempted to go near the front door to leave your premises, you punched and grabbed her. At one point, you held her on the ground, strangled her and told her to shut up.
9You threatened to kill her if she “kept going”. This is the behaviour referable to your Charge 4, of make threat to kill. You stated, “Now that you are here you have to stay until I am ready to let you go.” On several occasions, you made threats towards Ms McCulloch if she tried to leave, and told them that if either of them left you would get in your mate’s car and run them over. Your assaults upon Ms McCulloch caused her to vomit, which contained blood.
10At about 3:00pm, by which time your criminal acts had been continuing for about 2 ½ hours, your friend, Robert Hawkins, attended your premises briefly and gave you some cigarettes. He observed Ms McCulloch in the kitchen in a distressed state with a red mark on the side of her face.
11A short time after Mr Hawkins’ arrival, you lay on the couch and told Ms McCulloch that she could leave if she wanted to. Ms McCulloch and Adele left the premises, thereby ending your unlawful imprisonment of them, the subject matter of Charges 2 and 3. They walked home and went to a neighbour’s house, and that neighbour, Melanie Kimble[3], observed Ms McCulloch’s injuries and took photos.
[3] A pseudonym.
12Ms McCulloch was then taken to the Geelong Hospital by Ms Kimble’s partner at about 5:30pm, where she was treated for her injuries.
13As a result of your assaults upon her, Ms McCulloch sustained the following injuries:
· a 30 millimetre red bruise on the right upper neck;
· two 1 millimetre x 15 millimetre linear superficial abrasions with scabs on the right upper neck;
· bilateral infraorbital bruising and swelling;
· a 40 millimetre x 2 millimetre red linear bruise on her lower neck;
· three 5 millimetre circular red bruises on the front of the neck;
· a 5 millimetre x 2 millimetre superficial abrasion on the lower lip;
· two 30 millimetre circular red/black bruises on the upper aspect of the left upper inner arm;
· two 30 millimetre circular red bruises on the middle aspect of the left upper inner arm;
· a 40 millimetre black circular bruise on the lower aspect of the left inner arm;
· a 40 millimetre circular red superficial abrasion on the upper aspect of the back of the right shoulder;
· a 40 millimetre red bruise on the lower aspect of the back of the right shoulder;
· an 80 millimetre area of red superficial abrasion on the left lower back/buttock area;
· a 40 millimetre oval black bruise on the left knee;
· a 40 millimetre circular superficial abrasion on the right knee covered in red scab;
· small 10 millimetre multiple circular black bruises on both lower legs.
14These injuries are referable to your Charge 1, of intentionally causing injury. This charge of intentionally causing injury was committed in breach of a bail undertaking in relation to another matter, which is the subject matter of your related summary offence, of commit indictable offence whilst on bail.
15The following day, on 2 January 2020, police executed a search warrant at your address, and seized certain items, including eight cannabis plants that were growing at the rear of the premises.
16You were arrested and conveyed to the Geelong Police Station and were interviewed. You admitted Ms McCulloch had been at your address the previous day and that she was screaming out the front, but you falsely denied assaulting her aside from trying to push her out of the door at one point.
17You were remanded into custody, and an intervention order was granted where you the respondent, including conditions where you were to have no contact with the complainant or to get another person to contact her on your behalf.
18On 7 January 2020 at 5:27pm, you made a phone call from the Metropolitan Remand Centre in Ravenhall to your father, Gary Dunford, on the prison ARUNTA phone system, which was recorded.
Fifty-seven seconds into the call, you said:
"I was wondering if you can go and do something, do want to say too much but go and see her and see if she can drop the imprisonment shit she knows I didn't hold her there. That's what I'm getting done for false imprisonment that fucking 12 months, just ask her if she can just drop it, fucken tell her I will stay away from her and everything tell her to just go to court and drop it. Tell her she is just keeping me away from the kids, tell her that not tell em you's have asked because I will get in the shit for that, just send her a, actually don't send her a message go and see her ring her or something."
At 3 minutes and 13 seconds into the same conversation, you said:
"If you can somehow speak to her tell her drop it, I'll stay away from her I have got the IVO on me anyway yeah it's the only thing that is gonna make it.”
Your father said:
“She was talking to her yesterday and she was saying it happened in front of Adele or something.”
You then replied:
"Yeah what do you mean it didn't happen in front of Adele yeah, well can you just ask her not to do what Cara[4] done to me otherwise she is just taking me from the kids."
To which your father said:
“Yeah alright I can do that.”
At 4 minutes 38 seconds you said:
"worst thing happens I can stick it out but I will be going ten times harder at court she knows it didn't happen the way it did couldn't give a fuck, I'm just about sick of em all and there fucking lies wonder why I did it hard the last couple of months. No cunt gives a fuck."
At 5 minutes 34 seconds you said:
"The kids no they're the ones been copping the drilling because of their mouths and shit and she can't pull her stuff up like no one can they all expect to be their same old selves well it's fucking bullshit tried my best over the last couple of weeks it's why I don't fucken do shit with her no more you can't be in a relationship with someone that wants to argue and demand shit all the time. She knew that best I can do I can't really say too much cos every phone is recorded here."
[4] A pseudonym.
19On 3 February 2020 at 6:37pm, you made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford who call forwarded to your father Gary Dunford on the prison ARUNTA phone system the call was recorded.
At 5 minutes 35 seconds you said:
"You's spoken to her I don't know if she's going ahead with the charges go and drop it and that's why I, You's haven't spoken to her or nothing?”
Gary Dunford said:
"Nah."
You, said:
"Gonna say if you do speak to her just ask her if she is going to court to go ahead with the charges or if not so I know, otherwise if she is not going ahead with them just so I know otherwise I should get out in April with time served or some shit, I don't know if all these other charges are going on or not."
20On 7 February 2020 at 4:09pm, you made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford on the prison ARUNTA phone system the call was recorded.
At 2 minutes 38 seconds you said:
"I'm hoping dad goes and rings her.”
Shannon Dunford said:
“I've got the girls onto it I'm getting the girls onto it.”
You said:
"yeah well just ask her not to go ahead with it.”
Shannon Dunford said:
"Gonna ask to drop the false imprisonment?”
You said:
"Yep."
Shannon Dunford said:
"Or don't go to court and he can fight it."
You said:
"Yeah Yeah, that's all I want done. Yeah then at least I'll have a chance then in April to do time served or something, Yeah cool cos I did ask Dad to do that but I didn't want him to get too involved either.”
21On 12 February 2020 at 7:11pm, made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford on the prison ARUNTA phone system the call was recorded.
At 5 minutes 49 seconds you said:
"Umm do you wanna, see if you wanna I was gonna get Dad to try and ring her I wanna see if she is gonna drop that or what.”
Shannon Dunford said:
"yeah sweet I'll do what I can you know".
You said:
"Yeah even if you talk to Dad about it cos I don't Dad just talk to Dad and see if she can drop bits and pieces and not go ahead with it tell her I'll stay the fuck away from her."
22On 14 February 2020 at 6:26pm, you made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford on the prison ARUNTA phone system the call was recorded.
At 4 minutes 2 seconds you said:
"I just want Dad to ring her and see if she can go to court and drop that shit, otherwise Steph said that's the worse thing, I'll probably do a year if she goes ahead for it, I want Dad to tell her drop and tell her I will stay away from her and shit. I'm done with her anyway I couldn't be fucked with her bullshit. I'd rather sort me shit out and be single."
At 5 minutes 20 seconds you said:
“even if you speak to Dad tonight just try and tell him what I just said and get him to get in contact with her."
23On 15 February 2020 at 6:32pm, you made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford on the prison ARUNTA phone system the call was recorded.
At 50 seconds you said:
"Well when you see Dad do you want to tell him to try and get hold of her, just ask him if he'll speak to her and try and go to court and drop that shit."
Shannon Dunford said:
"I'll speak to her."
You said:
"yeah if you can tell her I'm gonna be screwed."
Shannon Dunford said:
"I'll tell her."
You said:
"Yeah tell".
Shannon Dunford said:
"I'll tell her not to come to court.”
You said:
"Yeah will just tell her even if she tells em to drop it cos I don't know if she doesn't come to court the police prosecutor will still go ahead with it or can they?"
Shannon Dunford said:
"They'll try."
You said:
"Yeah that's what I thought that's why I was gonna tell you to ask her tell to go in and say I wasn't having a good day cos I'll admit to a couple of things but some of it I won't. Like cos I did say in my interview I pushed her out the door so I will admit to that cos that's on tape and everything."
Shannon Dunford said:
"Correct?"
You said:
"Yeah that's on my interview tape that I pushed her out the door"
24On 15 February 2020 at 6.32 pm, you made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford on the prison ARUNTA phone system the call was recorded.
At 28 seconds you said:
"You haven't spoken to her or got through to her or nothing?"
Shannon Dunford said:
"nah not yet Lizzie and Cassie and gonna go for a drive around there."
You said:
"What couldn't hear ya."
Shannon Dunford said:
"Lizzie and Cassie are gonna go around there."
You said:
"Yeah ask her see if she'll go and drop it otherwise yeah"
25On 19 February 2020 at 12.59 pm you made a phone call from the Metropolitan Remand Centre in Ravenhall to your brother Shannon Dunford on the prison ARUNTA phone system the call was recorded.
20. At 14 seconds Shannon Dunford said:
"Be careful what you say on the phone about your ex, the Jacks come and seen me yesterday and told me not to contact your ex don't worry about it I will get it sorted. I thought I might of got taken off your phone for that."
At 3 minutes 50 seconds, Shannon Dunford said:
"Don't worry about talking about it alright."
26That is the offending referrable to Charge 6 on the indictment of attempting to pervert the course of justice.
Plea of guilty and timing
27This matter proceeded through contested committal hearing, involving the cross-examination of witnesses, including the complainant Ms McCulloch, then resolved after you were committed to trial after bail was refused. The matter had not been set down for trial owing to the impact on trial listings in this trial court caused by the COVID-19 virus, and I consider that it occurred at a midway stage in the proceedings, and there is utilitarian benefit for those pleas in that they have spared the complainant and other witnesses the inconvenience, and in some cases, trauma, of needing to appear before the Court to testify, and have also saved the Court time. I attach mitigatory weight to those matters.
28Your counsel submitted, and I accept and take into account also in mitigation of penalty, that your plea represents a degree of remorse, regret and shame, as expressed by you to psychologist, Carla Lechner, whose report I will address in more detail in due course, and to me in your letter.
Personal circumstances
29You are now 32 years old and were 31 at the time of offending.
30You were the second boy of two, born to caring parents, and are of Aboriginal heritage. You were hit by a car at the age of 11 years, which resulted in two broken legs, and then you were in a wheelchair for about 6 months. Your parents separated when you were 12, and re-partnered. I was told that your mother unfortunately passed away tragically in 2010 from a car accident, which has significantly impacted you, leading to your alcohol and drug abuse, which is also a topic to which I will return.
31You were diagnosed with Attention Deficit Hyperactivity Disorder and were initially medicated, though your mother discontinued your prescribed medication after about 10 days.
32You struggled at school, and initially attended mainstream schooling before attending alternative education until the age 17, when you commenced working.
33When you left school, you commenced working as a kitchenhand in Lorne Hotel, and supported your young family. You then worked at the Norlane Hotel for 2½ years, and then as a plasterer for around 6 months.
34You were in a 16-year relationship with your former partner, and this relationship ended in 2015, as a result of her use of methamphetamine and your excessive use of alcohol. You share four children, aged between 7 and 12 years of age. Department of Health and Human Services (“DHHS”) placed the children with various family members once they were removed from you, until they eventually settled with your father and stepmother. The two younger children have been diagnosed with, and are now treated for, Attention Deficit Hyperactivity Disorder. You are concerned for your father’s health, as he was diagnosed with bowel cancer in 2018.
35You were in a relationship with the complainant, Ms McCulloch for three to four years, and I have noted that she has a daughter, to whom I have referred, from a previous relationship.
36You have appeared before the Courts on approximately 15 occasions prior to the commission of these offences. Relevantly, in June of 2012, you were convicted of two charges of unlawful assault, and a charge of contravening a Family Violence Intervention Order, which led to a Community Correction Order, with conditions including that you undergo assessment and treatment for drug abuse or dependency, and also alcohol abuse or dependency, and that you attend a Men’s Behaviour Change Program, and any programs or supervisions as directed by Corrections in cooperation of DHHS. In January 2015, you were convicted of charges of theft, unlawful assault and recklessly cause injury, and were placed on another Community Correction Order, which also included assessment and treatment conditions, and obliged you to complete a Men’s Behaviour Change Program. In April 2015, charges of criminal damage and persistent contravention of a Family Violence Intervention Order, resulted in your first period of custody. In June 2015, the Community Correction Order imposed on your charges of theft, assault and recklessly cause injury was breached, and a further Community Correction Order was imposed.
37In July 2016, your Community Correction Order for these offences was again breached, and you were placed on another Community Correction Order. On the same date, charges of contravening a Family Violence Intervention Order and unlawful assault resulted in a Community Correction Order. Driving offences in October 2016 resulted in another Community Correction Order. In January 2017, the Community Correction Order you had received on your convictions for theft, unlawful assault and recklessly cause injury was again breached and you were placed on another Community Correction Order.
38In January 2018, you were sentenced to your second sentence of imprisonment upon your conviction for unlawful assault. Further jail sentences were imposed in April 2018 in the County Court, given that you had again breached the Community Correction Order for theft, unlawful assault and recklessly cause injury, and the Community Correction Order imposed in relation to the Family Violence Intervention Order breach and unlawful assault. In May 2018, you received a further sentence for making a bomb hoax and threat to inflict serious injury. That was your longest sentence at that time, of six months’ imprisonment.
39In September 2018, you were sentenced on your conviction to six charges of contravene a Family Violence Intervention Order, unlawful assault and burglary. On the four charges of Contravene a Family Violence Intervention Order, unlawful assault and burglary, a sentence of imprisonment was imposed, and there was a further bond imposed for two charges of contravene a Family Violence Intervention Order, with a requirement that you participate in an accredited Men’s Behaviour Change Program and file a letter of completion of same with this Court. One final Magistrates’ Court appearance occurred in May 2019, where on conviction for offences of threat to inflict serious injury and threat to destroy property, you were convicted and fined.
40I was told that once you were released from prison in January 2019 you were initially doing well after your release, and were supported by a VACRO worker for your mental health issues and alcohol use, but by the eighth or ninth month your VACRO worker noticed that you were struggling. You began drinking, and gradually increased to six to ten cans of Jim Beam or Jack Daniels every day or second day. On the day that you committed Charges 1 to 4, you were woken by your partner Ms McCulloch, and you apparently argued about cannabis and money. You were hungover after consuming a slab of Jim Beam or Jack Daniels the night before and were irritable in mood.
Psychological presentation
41In relation to your psychological presentation, I have read the report of Carla Lechner, clinical psychologist, who administered relevant empirical testing and has provided me with her expert opinion. She noted that your word knowledge and expressive skills are very poor, but you demonstrated the capacity for abstract verbal reasoning, although your skills in this regard were still in the low average range.
42She notes that you found it very hard to express yourself, often starting but not completing sentences and complaining of memory and word finding problems. She observes in you symptoms of depression and anxiety, and diagnoses you with alcohol and cannabis use disorder pursuant to DSM-5 criteria, in early remission in a controlled environment. You are also evidencing symptoms of Major Depressive Disorder in her view, that is partly reactive to this hearing, but also emanating from experiences of loss, as a result of the death of your mother, and the cessation of your long term intimate relationship.
43As I have observed earlier, you expressed to Ms Lechner regret and shame for offending behaviour.
44I have separately received and considered the report of Amy Dluzniak, clinical neuropsychologist, who also administered relevant testing. Dr Dluzniak assessed your intellectual functioning as falling overall in the borderline range relative to your similar aged peers. Your verbal comprehension skills also fell in the borderline range, and your expressive vocabulary was in the low average range, whilst your verbal abstract reasoning skills and general fund of knowledge were in the borderline range. Your overall performance on measures of perceptual reasoning abilities fell in the low average range. Your “hands on” visuo-constructional skills, visual reasoning and problem solving, and ability to mentally manipulate special information, fell in the low average range. Your overall performance on measures of attention and working memory also fell in the low average range.
45Overall, she opined that you were a man of estimated borderline to low average premorbid intellectual function. Owing to your borderline level of mental functioning, you would likely experience marked day to day functional difficulties across life domains relative to many other individuals your age. Formal assessment revealed that your intellectual function is worse than 97 per cent of other individuals your age in the wider community. You experience a marked degree of concreteness in your thought processes, and you are likely to have difficulties processing information quickly, adapting to new situations, problem solving, and resolving conflict. Your level of intellectual functioning also means that you have trouble organising yourself and planning for future events.
46In her opinion, you additionally have a history of depression and anxiety.
47Dr Dluzniak expresses the view that “at the time of [your] charges, [you] reported low mood, and [you] were not receiving mental health support. [You reportedly] relapsed to alcohol use following engagement in a Men’s Behaviour Change group that brought up difficult memories for you.”
48Given that you have borderline intellectual functioning and mental health conditions, in Dr Dluzniak’s view these render you vulnerable in a custodial setting. You may be at increased risk of being manipulated and misled by others within the custodial system. Dr Dluzniak recommended that your support and mental health care needs should be closely monitored while you are incarcerated, and it is likely that you will require a high level of support and supervision when in the community in order to adhere to any conditions to which you are subject, and remain engaged with mental health and AOD supports.
49Your counsel submitted that, as a result of these matters, a number of limbs of Verdins[5] attracted weight in the sentencing exercise.
[5]Verdins, Buckley and Vo (2006) 16 VR 269 [32]
50I accept that submission in relation to the impact of your impaired mental functioning upon the circumstances of your sentence of imprisonment. To this extent, I accept and take into account the fifth limb of Verdins as attracting weight – that is, the existence of your condition will mean that a given sentence will weigh more heavily upon you than it would on a person in normal health, and I attach mitigatory weight to this factor in the operation of Verdins.
51I have reflected carefully on any significance of your mental functioning upon other Verdins factors. I do not consider that the evidence supports a conclusion that your moral culpability for these offences is impacted. I am prepared to infer that there is modest, though sufficient connection between your intellectual functioning such as to reduce in a modest way the weight given to deterrence as a purpose of sentencing, and I attach weight to this also in mitigation of sentence.
52I interpolate that your time in custody has been productive, and that you have been drug and alcohol free during this period and have achieved certificates of completion in relation to a number of courses, for which I commend you. In particular, I note that you are a well respected prisoner within Corrections Victoria, according to the vocational programs facilitators at Marngoneet, and you were in the first group to complete the Group Triple P Program, which is a broad based parenting intervention program for parents up to 12 years, involving six two-hour group sessions.
Objective seriousness of the offending; moral culpability
53Mr Dunford, your offending in relation to Charges 1 to 4 is a complete disgrace. It was a cruel and protracted period of abuse on your then partner in circumstances in which she was unable to leave. You caused her injury during this time, and the assaults caused her to vomit which contained blood. Your false imprisonment of her nine year old daughter for those two and a half hours, whilst exposing that child to the images and sounds of your abuse of her mother shocks the conscience. You caused injury to your partner over a protracted period of approximately 2 ½ hours therefore in the presence of her nine year old daughter. The fact that you were on bail at the time of your charge of intentionally cause injury was no impediment that that criminal act. You are no stranger to acts of violence, though I accept this offending represents a significant escalation on your past behaviour. Likewise, you have faced the court on many occasions for your earlier breaches of family violence intervention orders. These are offences of a slightly different nature, although your charges 1-4 are also of family violence. You have been given many, many opportunities to engage in supervision and rehabilitation imposed by the court aimed at prompting behavioural change – ie in attitude, and in habit. Those attempts have been unsuccessful so far.
54Only five days after you were remanded into custody on these charges, and an intervention order had issued, you were on the phone to your father and your brother asking them to ask the complainant to drop the false imprisonment charge, with a view to minimising the amount of time you would spend in custody for these matters. Though neither proceeded to contact the complainant, I understand another family member did speak to her.
55Your offences the subject of Charges 1 to 4 were a protracted ordeal of violence, of threats and control, and your attempt to control the complainant did not cease upon you being remanded into custody.
Purposes of sentence, sentencing submissions
56I take into account the purposes for which sentence must be imposed, and the need for deterrence both general though modestly moderated, and in your case specific, which in my view in this case requires careful emphasis. The sentences that I will impose will punish you and denounce your behaviour, whilst allowing and emphasising your continued efforts at rehabilitation. I share the view of Ms Lechner that it is desirable that you take advantage of rehabilitative opportunities that may present when are eventually released from custody. I am cautious about your prospects for rehabilitation given your long history of offences of family violence and long history of problems with alcohol abuse.
57Your counsel’s submission conceded that a lengthy prison term was inevitable, to be sensibly moderated to reflect the mitigatory features that I have summarised throughout. I take into account and apply consistently with counsel’s submission the necessity for some degree of concurrency between the charges in proper reflection of the totality principle of sentencing.
Sentence
58On Charge 1 of intentionally causing injury, I will impose 2 years and 6 months' imprisonment and I will come back to my order for cumulation.
59On Charge 2 of false imprisonment, 2 years and I will come back to that order, as with the others.
60On Charge 3 of false imprisonment, 2 years and 9 months' imprisonment. This will be the base.
61On Charge 4 of make threat to kill, 1 year and 6 months' imprisonment.
62On Charge 5 of cultivation of a narcotic plant, 14 days, that sentence will be served wholly concurrently with other sentences.
63On Charge 6 of attempt to pervert the course of justice, 2 years' imprisonment.
64And on the summary charge of breach of bail, 14 days, to be served wholly concurrently.
65So just recap and now I will add the orders for cumulation. So, we note, on Charge 3, 2 years, 9 months, that is the base. On Charge 1, of the 2 years and 6 months', one year will be imposed cumulatively. On Charge 2, of the 2 years, 3 months will be imposed cumulatively on the base and on other sentences. On Charge 4 of the 1 year 6 months, 3 months will be served cumulatively on the base and on other sentences. On Charge 6, of attempt to pervert, 2 years of which 6 months will be served cumulatively upon the base and on other sentences.
66The total effective sentence is therefore 4 years and 9 months' imprisonment, and I will impose a minimum of 3 years to serve before parole eligibility.
67HER HONOUR: Ms Saville, what's the calculated pre-sentence detention?
68MS SAVILLE: Your Honour, we calculated that as 523 days.
69HER HONOUR: Yes, thank you very much.
70MS SAVILLE: Yes.
71HER HONOUR: And that's agreed by defence?
72MR BARRIERO: It is, Your Honour.
73HER HONOUR: Thank you. Were it not for your pleas of guilty I would have imposed a sentence of 5 years and 6 months' with 3 years and 9 months' to serve before parole eligibility. We'll now stand down until 10.30 am.
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