Director of Public Prosecutions v Easson
[2020] VCC 1953
•4 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-01065
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE EASSON |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2020 |
DATE OF SENTENCE: | 4 December 2020 |
CASE MAY BE CITED AS: | DPP v Easson |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1953 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Tueno | Office of Public Prosecutions |
For the Accused | Mr J. Desmond |
HIS HONOUR:
1Shane Easson, you are to be sentenced for one charge of intentionally causing injury and one charge of false imprisonment. The maximum sentence for both offences is 10 years' imprisonment.
2You pleaded guilty before me on 27 November. When interviewed by police on 3 April 2017, very soon after the offending, you made significant admissions. However, you did not embrace the full extent and seriousness of what you did to your victim, Mary Wambi. She is your ex-wife.
3After that there has been a prolonged history of proceedings. On
15 November 2017, the matter was listed for contested committal hearing. The matter seemed to resolve then or soon after. There was an adjournment for defence consideration of the proposed Crown plea summary. At this time you had been granted bail in September 2017. There were proposed applications for summary jurisdiction. However, on 17 May 2018 committal went by hand-up brief, after which you pleaded guilty to the two charges now before me.4A plea hearing was listed in this court in September 2018. You withdrew your plea and the matter was listed for trial in October 2019. There was an adjournment of that. During this time there had been a reconciliation between you and Ms Wambi or attempt at that. In October 2019 there was the birth or impending birth of your child. The new date for trial became 31 August 2020. The COVID-19 pandemic and its restriction of the work of the County Court prevented this.
5On 14 September your bail was revoked. You indicated a plea of guilty soon after in late September; I was told, 25 September. You and Mary Wambi had become separated again. As stated you formally entered pleas of guilty before me on 27 November.
6You receive the benefit of your plea of guilty and the level of cooperation that somewhat unusual history of the investigation proceeding shows. Ultimately, your plea has facilitated the interests of justice and accepts responsibility. For example, Mary Wambi has not been required, at committal or in this court, to give evidence about the ordeal you inflicted upon her.
7At your plea hearing also on 27 November, Ms Tueno for the Crown tendered a written Crown opening and a number of colour photographs of the injuries you caused to Mary Wambi. The photographs in the depositions are black and white and of poor quality.
8Mr Desmond for you tendered the neuropsychological report of Simon Scalzo, dated 10 April 2018; the forensic psychiatric report of Dr Danny Sullivan, dated 16 November 2020; the Forensicare report of occupational therapist, Emma Robertson of the Magistrates' Court Mental Health Liaison Service, dated
4 April 2017; the report of orthopaedic surgeon, Kemble Wang, dated
9 September 2020; the CISP bail report of case manager, Louise Tartaggia, dated 30 January 2018; letters of character reference; certificates related to drug and alcohol programs undertaken by you; and a letter of Mary Wambi dated 24 April 2018. Mr Desmond also provided a written outline of plea submissions.9Ms Tueno referred me to the Court of Appeal case of Ivanov v The Queen [2019] VSCA 219.
10The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf not challenged by the Crown.
11At the time offending, April 2017, you were aged 32. You and Mary Wambi had married in March 2016. You had been together for about three years prior to that. You separated in December 2016 soon after an argument and confrontation in which you punched her to the face. That is not a charge and you are not to be sentenced for it.
12In March 2017, Mary Wambi initiated contact. You were homeless and using drugs. You stated that you were mentally unwell and suicidal. She invited you to stay at her Box Hill home. Although without prior convictions at a mature age, you have over time struggled with polysubstance abuse. The Crown opening states that this had become worse after Mary Wombey's miscarriage in August 2016. You used heavily and after a time lost your job. I accept that in the two or three weeks prior to this offending, in early April, you were more heavily using drugs including cocaine, ice, amphetamine and ecstasy.
13On 1 April you had been missing for a number of days. You phoned Mary Wambi stating that you were in danger and needed $500. On that evening you came to her home with an unknown male. She withdrew $700 from an ATM and paid him that. He left. Next morning there was an argument at her home. She did not want you to stay. You irrationally accused her of 'setting you up'. You stated to police in interview that you thought she was 'turning on you'. You seem to have said or thought that your wife had paid the $700 to have you shot.
14What then followed were brutal, repetitive assaults and then imprisonment of her. It began at 10.30 am and ended when you allowed her to phone 000 to request an ambulance at about 10 pm. This included that she was punched, struck to the head with a ceramic mug; you stood on her back and head, a
T-shirt was stuffed into her mouth; she was stopped from escape and dragged across the floor; you wrapped a lamp cord tight around her neck, you threatened her with a knife. At one point you started to take her to the basement of the building. She tried to run. You caught her and assaulted her further. You threatened to kill her. At another point you struck the back of her head with an iron. She lost consciousness for a time.15The charge of false imprisonment reflects your prevention of her escape and containment of her within her unit. She tried and failed to get away at least twice. The Crown opening gives more specific description of your treatment of her.
16Ultimately, Mary Wambi was allowed to ring ‘000’ and an ambulance. This is noted in records as at 10.15 pm. She was taken to hospital at 10.55 pm. She was discharged on 4 April.
17A measure of the brutality of your treatment of Mary Wambi can be seen in the evidence of her injuries. Paragraph 25 of the Crown opening states as to that:
'On 7 April 2017, she was assessed by a forensic medical officer,
Dr Cathleen Jackson who noted that Wambi had a multitude of bruises which were caused by innumerable applications of blunt force along with multiple healing abrasions. Forensic physician, Dr Angela Williams prepared a report based on review of Wambi's statement, the photographs and hospital records. She noted that there were in excess of 20 wounds over several body planes which was highly suggestive of an assaultive mechanism and several of her wounds could be considered defensive wounds'.
18I have viewed the tendered photographs of Ms Wambi. There are a large number of them. Some photographs show injury, abrasion and bruising more clearly than others. However, there is multiple injury over many parts of her body, head, face, arms, legs, feet and, for example, buttocks. Some injuries perhaps appear slight. Others cannot be described as that. The overall picture is that of an extensive beating. The Crown has not tendered a victim impact statement. In the circumstances, substantial victim impact must be presumed.
19You are now 35 years of age and await my sentence in remand custody. You have no prior convictions. You give a history of some physical and sexual abuse as a child, that at the hands of your grandfather. You report a difficult but at times supportive relationship with your mother. Your parents separated in teenage. You have a younger sister who is intellectually disabled. After school to year 12 you completed an apprenticeship in plumbing. After working in that for a period you move into construction and particularly railway excavation work. You worked for the well-known construction company, John Holland, over an extended time, losing that job when using drugs heavily; as I have earlier described. Until then you were consistently employed. You have a seven-year old son to a former relationship. You have kept a relationship with him although do not see him in prison. You have a 12-month old child to Mary Wambi. You resumed your marriage with her in about July 2019; that is, over two years after this offending. I refer to my earlier history of the proceeding. The marriage failed again and you now have another partner.
20Your present situation came about in the context of deteriorating drug abuse. You used a number of drugs until your early 20s including cannabis, ecstasy, cocaine, ice, amphetamine and opiates. You had started to smoke cannabis at 14. You stopped using these drugs in your 20s, at least in part because of drug testing at your construction employment. You stayed free from such drugs until 30, in 2015. However, during this time you used steroids as a body builder and also because you felt it helped you abstain from the other illicit drugs. Cocaine use became daily up to 3 grams. You also intermittently took Valium. As I have earlier described, I am told that your substance abuse accelerated in late 2016 and early 2017. There was heavy binge drinking in teenage and early adulthood. There is some inconsistency in your reported histories of substances abuse; however, there is little doubt that drug use has badly affected your life.
21The neuropsychological assessment of Simon Scalzo states a mild acquired brain injury caused by substance abuse and concussions. There is reduced memory function and processing speed. Dr Sullivan states a history of polysubstance abuse and dependence. He further states symptoms consistent with anxiety disorder, mild in severity. It is not argued that those limbs of The Queen v Verdins which relate to reduced moral culpability and lesser importance of purposes such as deterrence and denunciation are relevant. This is consistent with Dr Sullivan's opinion. I accept the submission that your psychological conditions likely make, to some limited extent, imprisonment more difficult.
22As stated you have no prior convictions. There are subsequent matters, although without conviction. On 29 October 2018 you were fined an aggregate of $1,500 for offences including handling, possession of the drug of dependence cocaine and another drug, possibly steroids, bail offences and a minor driving offence.
23A document named 'Shane Easson Charge and Bail History' has also come to be before me. There was some reference to it at plea hearing. It appears to be an internal police document. On closer examination the difficulty I have is that a good deal of its contents seems allegation only. Beyond its report of proven matters, I do not see it as relevant. There have been family violence intervention orders in favour of Mary Wombey in and through 2018, a gap in that and then an order made in July and August 2020.
24I see what you did as a particularly serious example of this sort of offending. It was prolonged, brutal and cruel. With overwhelming physical advantage, you treated a person, whom you have professed to love and protect, abominably. It was no doubt terrifying. It was cowardly. Further, what you did carried many of the hallmarks of what is seen to be a damaging community problem. Victims such as Mary Wambi, as we see often women at the mercy of men to whom they are partnered, deserve and require better protection. The explanation here of drug use can have no real mitigation.
25The circumstances of offending make relevant sentencing considerations of high moral culpability, deterrence, strong condemnation and proportionate punishment. General deterrence is an important sentencing purpose. There is no appropriate sentence but that of imprisonment with a minimum term.
26Mr Desmond raised, and I take into account moderating factors. They include the following.
1)Your plea of guilty. Although ultimately not early, it has had the utilitarian benefit I have described. In my view, that is enhanced when a victim such as here does not have to re-live what happened in evidence at trial.
2)You have no prior convictions and are entitled to be seen as a person of prior good character.
3)Related to that, you can be seen as having genuine prospects for rehabilitation.
4)To some extent the circumstances leading to offending. Your life was at a low ebb. I accept that you were distressed and your lack of criminal history, to an extent, supports the argument put that what you did, as appalling as it was, was isolated behaviour.
5)I also take into account your personal history and circumstances, which include the mental health conditions described.
6)The matter of delay has been raised. At least some of it is explained in the earlier history of the proceeding. However, there can be no disadvantage to exercise of a right to trial. The fact of now a three and a half year delay remains and you are entitled to an appropriate consideration of it. Very evident movement towards rehabilitation over that time is not clearly made out; but, as I have said, you should be sentenced bearing in mind genuine prospects and capacity for that.
27The letter of Mary Wambi, dated 24 April 2018, has been tendered on your behalf. Her support of you and forgiveness cannot be seen as enduring or still present. Under initial objection I allowed its admission. Ms Tueno referred me to the case of Ivanov v The Queen. Despite what has developed since, you are entitled to the benefit of still relevant aspects of what Mary Wombey wrote in April 2018. There had been a time of happy, functional relationship at that time; that is April 2018. Mary Wambi saw you as a hardworking, good father which is consistent with your personal history and lack of prior conviction. Perhaps most particularly, she described the damaging effect on both of you of the loss of your child in August 2016.
28Ultimately I find that the applicable sentencing purposes and the seriousness of offending mean that a combined sentence of imprisonment and a community corrections order, as argued by Mr Desmond, is not sufficient. As said, particularly important is the sentencing purposes of general deterrence but also consideration of the circumstances of your offending requires proportionate punishment.
29The moderating matters raised, particularly your lack of criminal history at your age and prospects for rehabilitation should be reflected in the length of head sentence, but also that of the minimum term. Mr Desmond properly raised the principle of parsimony. The maximum sentences are 10 years on each of the two offences. Totality requires a good deal of concurrency, however not complete. Charge 2, false imprisonment was an identifiable additional circumstance to the episode of offending against Mary Wambi, especially I would think in her mind and feelings about it.
30Having considered and weighed what I see to be the relevant matters, I sentence you as follows. On Charge 1, intentionally causing injury, you are sentenced to three and half years' imprisonment. On Charge 2, false imprisonment, to two and a half years' imprisonment.
31I direct that six months of the sentence for Charge 2 be served cumulatively on the sentence for Charge 1. That is a total effective sentence of four years' imprisonment. I set a minimum term before eligibility for parole of two years' imprisonment.
32What is the s.18 period, Ms Tueno?
33MS TUENO: I have 252 days.
34HIS HONOUR: I declare under s.18 a pre-sentence detention of 252 days.
35Under s.6AAA of the Sentencing Act, had you not pleaded guilty, I would have imposed a sentence of five and a half years with a minimum term of three and a half years. Are there any other orders I need to make, Ms Tueno?
36MS TUENO: The Crown was seeking a forensic sample order and a disposal order in relation to some of the items used in the offending, that includes a damaged iron, a handled - black-handled steel knife, a damaged blue lamp and a blood-splattered blue man's shirt. I am not sure if that has been filed with the court.
37HIS HONOUR: I do not know but I can deal with them. The disposal order is not objected to I take it, Mr Desmond?
38MR DESMOND: Sorry, I was on mute. The disposal order is a matter for the court. But I am concerned about the forensic sample order, Your Honour, as a bloke with ‑ ‑ ‑
39HIS HONOUR: Well, my initial comment is this, you are not often asked,
Ms Tueno to make such orders. Now, usually they are dealt with in another way, the precise details of which I am not sure about. Was there not an order - was there not a sample taken?40MS TUENO: I am not aware, Your Honour. If ‑ ‑ ‑
41HIS HONOUR: Often - yes, go on, yes.
42MS TUENO: If a sample has been taken, I understand that there is no need for an order to be made it is just simply that that is retained. But in circumstances where there has not been a sample taken ‑ ‑ ‑
43HIS HONOUR: I will hear from Mr Desmond ‑ ‑ ‑
44MS TUENO: Yes.
45HIS HONOUR: ‑ ‑ ‑ but I think it is the sort of case in which you would be almost compelled to make the order. Over time I have developed some concern that this is an application made as a matter of course even when samples have been taken and you discover they have and perhaps not kept on the base or perhaps kept on the base. In any event, what is your - do you have an objection to it, Mr Desmond?
46MR DESMOND: Your Honour, well was it taken or it is retained the application?
47HIS HONOUR: I do not know, we just, we do not know whether it was taken or not. That is what I have raised ‑ ‑ ‑
48MR DESMOND: No, but ‑ ‑ ‑
49HIS HONOUR: These days, am I right, I am directing this to both of you, that it does not seem necessary to make this application at sentence. It has been taken or there has been some other method of achieving that.
50MR DESMOND: Yes, I have not had this for quite a while, I must say.
51HIS HONOUR: Yes. Look, can I say this, upon providing evidence if you like or an indication, I would accept what you say, Ms Tueno or your instructor, that it has not been taken, receiving that and also forwarding it to Mr Desmond or his instructor, I would turn my mind to the application in chambers. And I see no reason against making it, I think it is the sort of offending that would, if it was repeated in the future, be assisted by such samples. So, that is the best I can do I think. So ‑ ‑ ‑
52MS TUENO: Your Honour, I am just ‑ ‑ ‑
53HIS HONOUR: Go on, yes.
54MS TUENO: ‑ ‑ ‑ I am just checking the record of interview. Normally if - sometimes a sample is taken ‑ ‑ ‑
55HIS HONOUR: Yes, it is, that is right.
56MS TUENO: ‑ ‑ ‑ during that process. So, if you just give me one moment, I can just confirm ‑ ‑ ‑
57HIS HONOUR: Yes, and just before you do, I mean, do it by all means ‑ ‑ ‑
58MS TUENO: Yes.
59HIS HONOUR: ‑ ‑ ‑ but if - it is probably not the end of the matter because (1), in my experience that that is not conclusive of it and, secondly ‑ ‑ ‑
60MS TUENO: Yes.
61HIS HONOUR: ‑ ‑ ‑ Mr Desmond is right, it is not a common order in very recent years. And I have at the back of my mind that there is some other mechanism for achieving this. But look, if there is not, well particularly if it has not been done, I will do it. But if you can - and I will do it in chambers and the reasons why I would do it are these, that the seriousness of the offending and the fact that it is the sort of material, forensic material that is potentially relevant if there is any future offending. And I think the public interest is served by making the order. So, they would have been the reasons and I would say to Mr Easson now if I make the order you will be contacted in the prison environment and asked to supply a sample of saliva by cotton swab. If you do that cooperatively, that is the end of it. If you do not, a sample of blood may be taken by injection and reasonable forced used. Now, if I make the order, that will be conveyed to your lawyers and you will be contacted about it. That is what I will do I think.
62MS TUENO: Yes, Your Honour.
63HIS HONOUR: But I will sign the order for disposal, I am doing that now. All right, anything else I need to do?
64MS TUENO: No, Your Honour, I was just going to say, I have checked the record of interview. There is only reference to fingerprints being taken ‑ ‑ ‑
65HIS HONOUR: Yes.
66MS TUENO: ‑ ‑ ‑ but I will have my instructor contact the informant to confirm whether or not a sample has already been taken. If it has been taken, then the order will not be required from the court ‑ ‑ ‑
67HIS HONOUR: Yes.
68MS TUENO: ‑ ‑ ‑ but if it has not been taken, then we will advise the court and defence and if it has not already been provided ‑ ‑ ‑
69HIS HONOUR: If it has been taken - if it has been taken, you might want a retention order, although I have not come across them in recent times either.
70MS TUENO: No, Your Honour, I do not believe retention orders are required anymore, it is simply ‑ ‑ ‑
71HIS HONOUR: I see. I see.
72MS TUENO: ‑ ‑ ‑ there is no (indistinct words) ‑ ‑ ‑
73HIS HONOUR: Well, that, yes, yes, that puts me in the picture better. So, the issue will be whether or not it has been taken.
74MS TUENO: Yes.
75HIS HONOUR: All right, and I suppose in relation to a man with no prior convictions, unless it was taken when he was interviewed about other matters since, it may well be - or you could take the view that it is less likely that it has been taken than otherwise. But I will do that, I will do what I have said I will do upon receiving information also conveyed to the defence that it has not been taken.
76MS TUENO: As the court pleases.
77HIS HONOUR: All right, well that is - I now stand down, I turn people off, thank you for your assistance, both of you, in this matter.
78MR DESMOND: Thank you, Your Honour.
79MS TUENO: As the court pleases.
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