Director of Public Prosecutions v Edwards

[2017] VCC 1267

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR -17-00614

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS CHRISTOPHER EDWARDS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	5 September 2017
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2017] VCC 1267

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Office of Public Prosecutions
For the Accused	Mr M. Turner

HER HONOUR:

1Marcus Christopher Edwards, you have pleaded guilty before me to one charge of aggravated burglary, one charge of destroying or damaging property, one charge of persistent contravention of a family violence intervention order which comprises three contraventions as well as a number of summary offences which have been uplifted for hearing in this court pursuant to s.145 of the Criminal Procedure Act.  They are two charges of assault with a weapon, two charges of unlawful assault and one charge of committing an indictable offence whilst on bail.

2The facts underlying your offending are as follows.  Three of the assaults relate to your then girlfriend, Belinda Smythe.[1]  On 30 October 2016 you and she had an argument where she slapped you, you pushed her against a wall and she screamed.  You stepped away then picked up a knife and waved it her then walked away.  Those actions underlie summary Charge 1 and resulted in

[1] Belinda Smythe is a pseudonym.

Ms Smythe attending the Portland Magistrates' Court on 8 November 2016 when she obtained a family violence intervention order.  The conditions of that order were that you were not to commit family violence against her, damage any property belonging to her or contact or communicate with her or go to any place where she lived.  This order was served on you on 10 November 2016 by police and conditions explained.

3On 27 December 2016 you went to Ms Smythe’s address and had an argument with her during which time you ripped off your shirt and tried to burn it. 
You made a comment to Ms Smythe about burning the house down with Ms Smythe inside.  Those actions comprise part of Charge 3 on the indictment, persistent contravention of family violence order being the first such contravention.  At that stage, because you were in breach of the intervention order, you were charged and bailed to the Portland Magistrates' Court on 7 February 2017 with conditions not to contact prosecution witnesses, in particular Ms Smythe. 

4You were on bail when you committed other offences and the committing of those offences whilst on bail underlie the summary charge of committing an indictable offence on bail. 

5On 5 January 2017 you stayed at Ms Smythe’s house for the night presumably with her permission.  At about 6.00 am on 6 January the two of you had an argument, a verbal argument, during which you were yelling and swearing at her and calling her a "crack slut".  Ms Smythe walked outside to get away from you but you followed her and threw a brick at her, landing near her foot and scaring her.  She walked away again and a short time later you met up with her and the two of you walked back to her house.

6She told you she did not want to be with you.  You became angry and grabbed her, grabbing at a pack of cigarettes that she had in her bra.  Ms Smythe walked inside and you walked away.  Those actions comprise the second incident underlying the charge of persistent contravention of family violence intervention order.  The throwing of the brick also underlies summary Charge 11, unlawful assault. 

7On 12 January 2017 in the morning you tried to contact Ms Smythe on her mobile phone having been told by another person that she had been with a man, Gerald Akers,[2] the previous night, apparently a friend of yours.  You became upset, grabbed a baseball bat from your home and went to Ms Smythe’s house, knocking on the door and calling out to her.

[2] Gerald Akers is a pseudonym.

8She was asleep in the lounge room with Akers but awoke when you knocked.  She refused to let you in so you walked around to the side middle gate leading into the back yard, went into the back yard and walked to the kitchen window.  You became angry and climbed through the unlocked kitchen window into the house.  These actions underlie Charge 1 on the indictment, aggravated burglary, that is entering as a trespasser with intent to assault and whilst armed with an offensive weapon namely the baseball bat.

9You went into the lounge room and started swinging the bat at Akers, striking him once to the left forearm.  Akers apparently received a slight red mark on his forearm as a result telling police later in his statement that it was not an injury that particularly worried him.  However those actions underlie summary offence Charge 3, assault with a weapon.

10You chased Mr Akers around the house for a short time before Ms Smythe let him out through a sliding door to the lounge room.  Akers ran out and you then had an argument with Ms Smythe in the yard.  You called her a "slut" and smashed the glass sliding door and window with the baseball bat.  These actions underlie Charge 2 on the indictment, destroying or damaging property. 

11You called Smythe more names and hit her with the baseball bat connecting with her right thigh causing her pain.  She later told police that she was stunned.  Those actions underlie summary Charge 2, unlawful assault with a weapon.

12You left the house and walked to another address in Portland with the baseball bat, leaving it on a bench inside.  At about 11.30 that morning you voluntarily attended the Portland police station where in a record of interview you admitted to the offences saying that you did enter Ms Smythe’s house with the baseball bat with an intent to assault Akers.  You also admitted to throwing a brick at
Ms Smythe.  You told police you had used ice twice that day.  You were remanded in custody because you had breached bail and have remained in gaol ever since despite two unsuccessful bail applications.

13The maximum penalty for aggravated burglary is 25 years' imprisonment.  
The maximum penalty for criminal damage or damaging property is ten years' imprisonment.  The maximum penalty for persistent breach of a family violence order is five years' imprisonment.  The maximum penalty for committing an indictable offence on bail is three months' imprisonment or 30 penalty units.  The maximum penalty for assault with a weapon is two years' imprisonment.  The maximum penalty for unlawful assault is three months' imprisonment or 15 penalty units.

14Ms Smythe was invited to make a victim impact statement but declined saying that she had moved on.

15I now turn to your personal circumstances.  You are now 27 years of age. 
You were 26 at the time of this offending.  You had some difficulties in your life.  Your parents separated when you were a baby.  Your mother effectively left the marriage and you were raised by your father in Portland.  Your mother now lives in Portland.  You have contact with her but it could only be described as distant.  Your father is a retired plant operation manager at Portland.  He remarried and you apparently have a very close relationship with him.

16You have two full siblings, a gainfully employed older brother and younger sister.  You also have half-brothers and half-sisters deriving from other relationships by both your mother and father.  You appear to have maintained a close relationship with your siblings. 

17At an early age you were diagnosed with suffering from attention deficit hyperactivity disorder and diagnosed dexamphetamine for the condition. 
You continued taking this until midway through Portland Secondary College when you took yourself off your medication.  Your behaviour deteriorated and you were ultimately expelled.

18Between ages 15 when you left school to the age of 20 you had a number of limited casual jobs.  Then between the ages of 20 and 23 you worked as a manager at Moama Pizza in Echuca then worked for another pizza parlour there and also worked for 12 months at a pizza establishment in Haywood.  However eventually you gave up your work because of a deepening dependency on methamphetamine which I will shortly outline and had not worked for about two years prior to committing this offending.

19At the time that you were working in Echuca you were also in a relationship with a woman, Catherine, by whom you had two children.  You have a son, Jarvis, now aged four and a half.  The second child of the relationship was a girl who died of cot death at three weeks of age.  It was shortly after that that you descended into heavy ice use.

20You told psychologist, Jeffrey Cummins, whose report dated 25 July was tendered on the plea, that you had some problems with binge drinking but shortly after your daughter's death, plunged into very heavy amphetamine use and ended up making two suicide attempts in a short period of time by way of overdosing on pills and were admitted to a psychiatric ward where you remained for about a week.

21At this point your relationship with Catherine broke down and this caused you to use ever more heavily.  You told me that in about the last two years you had been using ice daily and in large quantities, being half a gram to a gram per day, which is indeed a major habit and for which you received no assistance or rehabilitation.

22Also at about the age of 23, which is the age when you began using methamphetamine heavily you developed a gambling problem playing on the pokies on a daily basis.  You have also used cannabis on a daily basis for about the last ten years.  Your relationship with Smythe broke down, unsurprisingly, and in the aftermath of that you also in late 2016, early 2017, made a third suicide attempt, this time by hanging, attempted hanging.  You reported to Mr Cummins regular binging on alcohol which continued for some years although you frankly told the court that it was methamphetamine which was your main problem.

23Along the way, unsurprisingly, you have compiled a criminal history.  It appears in your youth (and these are offences that are well over ten years' old and therefore not included on your criminal record sheet), you had been involved in some assaults but thereafter you were dealt with for unlawful behaviour in public, being drunk in a public place, drink driving charges, you have a prior for criminal damage, you were given a community based order in 2010 but you breached this and you ultimately received, in 2011, a month imprisonment. 
The last matter on your criminal history sheet is dated 2011.  Whilst in no way admirable, your prior criminal history sheet is not particularly extensive.

24You told Mr Cummins, which is very much to your credit, that in some ways you welcomed your ultimate placement in custody.  Your father gave evidence on the plea that in the months leading up to your arrest he became aware that you were using methamphetamine.  You told him you wanted to get off it and he, indeed, tried to organise rehabilitative treatment for you which, however, you failed to take up.  Nevertheless there was an indication by you that you were unhappy with your life and did want to change it, although you appear not to have had the personal strength to carry out the rehabilitative efforts that you needed.

25You said to Mr Cummins that you had not used ice prior to your daughter's death but then stated:

"Well for the first couple of years after Marissa's death I was on and off with the ice and then after that I was just full on for nearly four years.  I was getting through between one and two grams of ice daily and along with that I was living a life of crime.  Like, I'm a pretty honest guys but the drugs and grief and depression got on top of me".

26I am satisfied that whilst in prison you have managed to detoxify from drugs and have not used drugs.  You stated, "I am confident now I could stay off the drugs".  You said that you "lost the plot" after your daughter died and you were diagnosed by Mr Cummins as suffering from, at the time of offending, a cannabis use disorder which he described as being severe in magnitude and from a stimulant use disorder referring to the methylamphetamine use which
Mr Cummins described "of at least moderate severity".

27In talking about the offending it appears that you and Ms Smythe were both drug users and that mutual drug use was a feature of your relationship and it is certainly the experience of this court that where you have a relationship where both persons are engaged in amphetamine use, nasty arguments, more often than not ending in violence, can be the norm.  You told Mr Cummins that both you and she became aggressive on drugs.  You stated:

"The best thing is that this all came to a head and that I got charged and that I'm now in gaol.  Being in gaol has forced me to review my situation and I'm not an identified user in there.  I'm determined not to use drugs when I get released".

28The plan is that ultimately you plan, on your release, to live with your father.  Your father made it clear in evidence to this court that whilst he is happy to support you he will not tolerate drug use by you or association by you with persons who do use drugs. 

29Mr Cummins said that you did not present as being psychotic or schizophrenic or having an anti-social personality disorder, anti-social personality style or anti-authoritarian personal style.  You have been prescribed an anti-depressant whilst in gaol which you say has been helpful to you.  Mr Cummins said that you, "Spoke in an refreshingly insightful manner concerning his offending history and concerning the charges he currently faces".  He was of the view that you were remorseful for your offending.

30Mr Cummins' opinion was that you had unresolved attachment and trust issues probably due to the abandonment by your mother as a child.  He said these were then exaggerated by your daughter's death.  Mr Cummins quoted, "Significantly at interview on 15/06/2017 he stated he hoped he would eventually receive counselling in relation to ongoing feelings of grief concerning the death of his daughter". 

31Mr Cummins said his view of your long term rehabilitation was favourable, that you presented as being significantly motivated to pursue self-directed rehabilitation stating, significantly in my view, "Under these circumstance
I would anticipate his motivation for change would decrease if he remained incarcerated for an extended time".  He believed you had an addictive personality and he believed that your long term rehabilitation would be very much linked to whether you would be able to cease drug use when you are released from custody.

32He said that in his opinion your current prospects for long term rehabilitation were "guardedly favourable".  He believed you also needed mental health treatment for your unresolved feelings of abandonment and breach of trust concerning your mother and your ongoing feelings of grief concerning your daughter.

33It was the defence counsel submission that I should deal with you by way of a term of imprisonment combined with a community corrections order. 
His ultimate submission being that the time you have already served in gaol would be a sufficient term to be attached to such an order. 

34The prosecution's position was, and it was a position that was taken prior to hearing the plea material, that I should deal with you by a straight term of imprisonment.  It is entirely understandable that the prosecution took this attitude.  Aggravated burglary is a very serious offence.  Domestic violence is serious offending.  Your behaviour on that night and your behaviour overall to Ms Smythe, whether it was due to the effects of ice use or not, was appalling and in no way excusable. 

35Nevertheless it is my view that you do have rehabilitative prospects which this court should take advantage of.  As I have said you have taken a realistic view of gaol.  You have seen it as a circuit breaker and as something positive in your life.  At the same time you have found gaol difficult, you have not enjoyed it, you have had some work in the laundry, you work out at gym but you have not made an associations there.  You told me frankly in court that you have pretty much disliked your entire experience there and so your capacity to appreciate that it has been a positive experience for you is one that that I accept more readily given your dislike of gaol.

36It seems to me that the best way I can deal with community concerns about your behaviour and send out a message to the community that behaviour such as this will not be tolerated as well as seeking to capitalise on the rehabilitative prospects that you have and the changes, the positive changes, that this time in gaol have brought to you, are best achieved by the imposition of a term of imprisonment combined with a community corrections order.

37I do not find that the time you have spent in gaol, which is about seven months, seven or eight or nine months, I am sorry, is sufficient to mark the seriousness of your offending.  It is expected that the courts will react with severity to home invasions and to domestic violence, both of which you are guilty.

38A community corrections order has been held by the authorities to be a punitive response as well as a rehabilitative one and I propose to fashion an order, a community corrections order, which will contain punitive aspects and which will be long and quite difficult for you.  I certainly intend, throughout the course of your community corrections order, to order you to attend judicial monitoring on a regular basis and to start with it will be basically on a six week basis so that
I can receive progress reports from the Corrections office.  So that if there is any falling off the wagon by you, it can be dealt with promptly.

39Having said all that, I do take into account that you have pleaded guilty at a very early stage.  You have saved the community the time and expense of a trial and Ms Smythe the trauma of giving evidence and being cross-examined.  I accept that you are truly remorseful for your offending as indicated by you voluntarily turning yourself to police, by the confessional record of interview that you conducted and in what you had to say to Mr Cummins. 

40I bear in mind Mr Cummins' view, and he is one of the State's most experienced psychologist, that you have taken advantage of the opportunity afforded you by gaol and that the good prospects for rehabilitation, notwithstanding that he regards them as somewhat guarded in the long term, may deteriorate if I give you a term of imprisonment which does not allow you to go on to a supportive order such as a community corrections order and exposed, in the long term, to the undesirable aspects of any gaol sentence.  I therefore sentence you as follows.  Could you stand up please.

41On each of the summary charges you are sentenced to two months' imprisonment.

42On the charge of persistent contravention of a family violence order I sentence you to six months' imprisonment. 

43On Charge 2 on the indictment I sentence you to three months' imprisonment.

44On the charge of aggravated burglary I sentence you to eight month's imprisonment.

45I order that one month of the sentence - the base sentence will be the sentence imposed on Charge 1.  I order that you serve - I order that two months of the sentence imposed on Charge 3 and one week of each of the sentences in summary offences of unlawful assault imposed in relation to Belinda Smythe, that is three of those charges, and one week of the charge imposed for committing an indictable offence on bail be served cumulatively to the sentence imposed on Charge 1 and all other sentences.  That should give a total effective sentence of 11 months.

46I order that you are then released on a community corrections order for a period of three years.  Now I need to explain to you the core conditions of any community corrections order.  They are, firstly, that when you are released from gaol within two working days of being released from gaol you are to report to the community corrections office. 

47Whilst you are on the community corrections order you must not commit any offence punishable by imprisonment and that does not mean that you commit an offence and are not gaoled, therefore you have not breached it.  It is if you could theoretically gaoled.  So if you knock off a box of matches from Woolworths whilst you are on the community corrections order, theoretically you could be gaoled for that and that will be a breach.

48Three, you may not leave Victoria without the permission of the community corrections office.  You must inform the community corrections office, this is NO.4, of any change of address or employment within 48 hours of that change.  You must not attend upon the community corrections office under the influence of drugs or alcohol.  You must report to and receive visits from the community corrections office and you must obey all lawful directions of the community corrections office.

49So that means if you do not abide by the conditions of the community corrections office that will be a breach as well.  If there are any breaches I will re-sentence you on this offending and as I told you during the plea hearing, if that is the case, if that is what you do I will gaol you and I will gaol you heavily for this.  This is a big chance, all right?  Serious offending and this is a one off.

50I am going to order special conditions.  The first are that whilst you are on this order you must perform 250 hours of unpaid community work.  You must attend for assessment and treatment for mental health difficulties.  You must attend for assessment and treatment including random urine testing for drug use. 
You must attend for any programs designed to prevent re-offending, in particular an anger management program.  You will be placed under supervision which means there will be fairly heavy supervision also and you will be placed on judicial monitoring.  Do you agree to those conditions?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  All right.  I declare that - I am sorry, how many days was it again?

53MR TURNER:  237 including ‑ ‑ ‑ 

54HER HONOUR:  Pardon?

55MR TURNER:  237 including ‑ ‑ ‑ 

56HER HONOUR:  237 days of the sentence to be served have been served by way of pre-sentence detention, all right?  The first judicial monitoring will take place six weeks after your release from gaol by which stage I expect to get a report from Corrections showing you that you are well under way. 

57All right so what is today?  Have a seat, we have got to do some maths here.  
I think it is two months, two weeks and one day.  Yes, that is right.  So that means 5 December.  So I think you are looking at it again on 20 November.  Which means you will be getting out when the court is still closed.  All right so you will be get out - that six weeks would normally be 31 December, the court will be closed.  So I will get you to see me on Friday, 26 January.  The court does not open again until 22 January. 

58I will start the new year with seeing you, Mr Edwards, so that will be 22 January at 9.30, will be first judicial monitoring.  Now you can make arrangements for that judicial monitoring to take place because I will be in Melbourne then, by way of video link.  I am not expecting you to troop up to Warrnambool but I am warning you it better be a good report, all right?  I will have my sentencing remarks, I will remember exactly what I said to you, Mr Edwards, so you better make it worth my while if I can put it that way.  All right?  Are you prepared to enter that order?

59OFFENDER:  Yes.

60HER HONOUR:  Thank you. 

61OFFENDER:  When's my release date, Your Honour?

62HER HONOUR:  I am not sure, you will have to work that one out.  November something.  All right.

63MR BATTEN:  Your Honour, there's also the request for a forensic sample and disposal order.

64HER HONOUR:  Yes, I will grant that request.  So I am granting  a request to police - I am surprised they have not got him on the books already.  Although that are driving offences, they do not necessarily take it.  I am going to order that police take a forensic sample which will involve them taking a swab from your mouth.  I have to warn you that should you resist in any way the police taking that swab, that police may use reasonable force in order to obtain that sample.  Thank you, have a seat.

65Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of two years and six months and order that you serve a minimum term of 18 months.

66Now you will be coming home to live with your father and the first thing you are going to do, you are going to get every old mate that ever used with you will appear on the horizon.  That can make life very hard.  It is certainly the experience of this court that if you are trying to give away drugs, all your mates go with it.  All your drug using mates go with it, all right?

67OFFENDER:  Yeah, I'll get my feet back over the (indistinct), Your Honour.

68HER HONOUR:  Pardon?

69OFFENDER:  I'll get my feet back over the horizon, Your Honour.

70HER HONOUR:  So you should.  It is a bit of a shame you did not do that before.  You might not have been here, all right?

71OFFENDER:  Yeah.

72HER HONOUR:  But you have really got to stick to this.

73OFFENDER:  Yep.

74HER HONOUR:  You know, this is not an easy order.  It is going to last for a long time.  You have got a lot of community work and you and I will be seeing a lot of each other until I am satisfied - at short periods, until I am satisfied you are well and truly on the road.  I have got the community to think about, not just you, all right?

75OFFENDER:  Yes, Your Honour.

76HER HONOUR:  Thank you very much.  Yes, let us just have a look.  Thank you, we'll get you to sign that, sir, thank you.  All right well good luck,
Mr Edwards, we will see you in January.

77OFFENDER:  Yep.

78HER HONOUR:  Hopefully pink cheeks, going well, doing the right thing with Corrections, getting your unpaid community work done, getting drug treatment.  I'll be forwarding my sentencing remarks to Corrections.

79OFFENDER:  Yep.

80HER HONOUR:  I'm pretty - and I am also very concerned that they do do random urine screening as well, all right?

81OFFENDER:  Yes, Your Honour.

82HER HONOUR:  So if you use the chances of being picked up are pretty high.

83OFFENDER:  Yep.

84HER HONOUR:  All right.  Yes, thank you is there anything else that I need to attend to?

85MR TURNER:  No, Your Honour.

86MR BATTEN:  No, Your Honour.

87HER HONOUR:  Thank you.  I thank counsel for their assistance and we will adjourn to 10.30 - is it tomorrow?  Thursday that's the big day.  Thursday, all right, thank you very much.

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