Director of Public Prosecutions v Elliot (a pseudonym)
[2018] VCC 2120
•29 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ELLIOT (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 1 November 2018 | |
| DATE OF SENTENCE: | 29 November 2018 | |
| CASE MAY BE CITED AS: | DPP v Elliot (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2120 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Damaging property - threat to kill - aggravated burglary - intentionally cause injury - cultivate a narcotic plant - contravene family violence intervention order, contravene personal safety intervention order - use unregistered vehicle - drive whilst disqualified
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 5 years’ imprisonment, 3 years’ non-parole period and $600 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Tueno | Office of Public Prosecutions |
| For the Accused | Ms L. Dubroja | Slades & Parsons |
HIS HONOUR:
1 Michael Elliot[1], you have pleaded guilty to one charge of damaging property, one charge of threaten to kill, one charge of aggravated burglary, one charge of intentionally cause injury, one charge of cultivate a narcotic plant and six transferred summary charges of contravene family violence intervention order, contravene personal safety intervention order, use an unregistered vehicle (two charges) and drive whilst disqualified (two charges).
[1] Michael Elliot is a pseudonym
-Aggravated burglary carries a maximum penalty of 25 years’ imprisonment.
-Each of damaging property, make threat to kill and intentionally cause injury carries a maximum penalty of 10 years’ imprisonment.
-Cultivate narcotic plant (cannabis) carries a maximum penalty of 12 months’ imprisonment or 20 penalty units or both.
-Each of contravene family violence intervention order and contravene personal safety intervention order carries a maximum penalty of 24 months’ imprisonment or 240 penalty units or both.
-Drive whilst disqualified carries a maximum penalty of 24 months’ imprisonment or 240 penalty units or both (for a subsequent offence).
-Use unregistered vehicle carries a maximum penalty of 50 penalty units (for a second offence).
2 You were born on 26 December 1988 and are now 29 years old. You were also that age at the time of the offending in May this year.
3 You have a criminal record, about which I will go into more detail later.
4 The victims in this matter are your ex-partner, her sister (“the sister”) and her sister’s (male) friend.
5 By way of background, on 19 September 2017 a Magistrates' Court made two intervention orders against you, which expire on 19 September 2018.
- The first was a full family violence intervention order whereby your ex-partner was the protected person. The order prohibited you damaging her property, attempting to locate her or being within 10 metres of her and being within 200 metres of her home.
- The second order was a full personal safety intervention order whereby the sister was the protected person. The order prohibited you contacting her, being within 10 metres of her and being within 200 metres of her workplace or her home.
6 You were present in the Court when both orders were made.
7 The circumstances of the current offending are as follows.
8 On 22 May 2018 at approximately 5.30 pm your ex-partner and her sister were at their home outside at the back of the house when they heard a knock at the front door. The sister went into the house to answer the door. She looked through the glass panel and saw a person wearing a black jacket and a motorcycle helmet with the visor down. She recognised the jacket as clothing belonging to you.
9 You said "Hi" and asked if your ex-partner was at home. The sister told you to leave the property as the intervention orders were in place. You said, "Are you fuckin' serious." She told you she was serious and would call the police. She then called 000 and held the phone up to the glass panel to show you. You said, "Do you think I give a fuck about the police or IVO?" During this incident your ex-partner went to her bedroom to hide from you. Your conduct on this occasion gave rise to the transferred summary charges 5 and 6, contravene family violence intervention order and contravene personal safety intervention order.
10 You then threw your helmet through the lounge room window and began shouting abuse at the sister. This conduct forms part of charge 1, damaging property.
11 You then left the property on a motorbike. Now, on 14 March 2018 your motorcycle licence had been cancelled in the Magistrates' Court for a period of 16 months from 31 March 2017, and on 19 March 2018 your motorcycle's registration had been cancelled. Your conduct thus gave rise to summary charge 7, use unregistered vehicle and summary charge 11, drive whilst disqualified.
12 Approximately ten minutes after your first attendance you returned to the property on your motorbike with the bike lights off. The two sisters had been standing outside in their driveway when you returned. They ran back inside and called 000 again.
13 You then proceeded to smash windows around the house, starting with the glass panel next to the front door, then two bedroom windows and a large four-pane window along the side of the house. This conduct forms part of charge 1, damaging property.
14 You then returned to the front of the house and put your head through the broken window. You shouted at the sister, "When I kill myself I'm taking three people down with me. Uno, dos, tres." You threatened her that you were going to slit her throat with a piece of glass. You continued to shout abuse at her before leaving the property on your motorbike. This conduct gave rise to charge 2, threaten to kill.
15 Your ex-partner then called 000 again. The police arrived at the scene at approximately 5.45 pm. Upon entering the street they saw you ride the motorbike in the opposite direction at a fast speed. Police patrolled the area but were unable to locate the motorbike. They arrived at the property and took statements from both sisters.
16 Police located a piece of motorbike helmet outside the house directly under one of the broken windows, as well as a visor from a motorbike helmet which appeared to contain blood found on the lounge room floor near the same broken window. Police photographed the scene, including the broken windows and pieces of helmet in situ.
17 At approximately 6 pm the sister telephoned her friend and told him about you attending and damaging her house. He went round to her house to check on her, saw police there and then returned to his home, where he watched television in the lounge room.
18 While he was watching television he heard someone run into his house. The person was wearing a motorbike helmet, full motorbike leathers and was holding a large knife, which was silver and about 30 centimetres long. The friend recognised this person to be you. This conduct gave rise to charge 3, aggravated burglary.
19 You stood over him as he was lying on the couch, and said, "I'm going to kill you." You then slashed him on his right leg. You swung the knife from left to right in front of his face while repeating, "I'm going to kill you." The knife struck him on his nose, cutting deep. He was fearful that you were going to carry out your threats. This conduct gave rise to charge 4, intentionally cause injury.
20 He said to you, "Get out. What the fuck are you doing? I have a kid." You walked out of the house, got on your motorbike and drove away. He then called 000 for an ambulance. He also called the sister and sent her a photo of his facial injury and told her that you did it. She arrived at the house as he was being treated by ambulance officers. He was taken to hospital for treatment. He underwent plastic surgery on the cut to his nose and the wound to his right leg required stitching.
21 This victim continues to suffer residual effects from his injuries, including noticeable scarring and loss of sensitivity to his nose and an indented and very visible scar to his leg. Because of the scarring to his nose he is constantly reminded of the assault and continues to suffer panic attacks.
22 Police attended his house and observed blood spatter on the ground in the driveway. They also saw you sitting on your stationary motorbike at the street's intersection watching police at the house. You fled the scene when approached by police. This conduct gave rise to summary charge 2, drive whilst disqualified and summary charge 13, use an unregistered vehicle.
23 After leaving that victim’s house, at approximately 8.15 pm you attended the home of a female friend, wearing the same motorcycle clothing and on your motorbike. You knocked on the front door for a period of time before leaving without speaking to any of the occupants. Your friend had spoken to the two sisters that evening and was aware that you had damaged their house, threatened them and had attacked their friend with a knife. She was anxious about the situation and did not want to let you inside.
24 Police spoke to your father, who advised that he had spoken to you and that you had admitted to slashing the victim's nose, that you had disposed of the knife and that you were no longer armed. Police attended at premises where they believed you were house-sitting, but they did not find you.
25 At approximately 8.15 am on 23 May 2018 you were arrested at those premises. You were wearing a black motorcycle jacket and a fluorescent yellow neck scarf. Police located at the premises a motorcycle bearing New South Wales registration plates and a white, red and blue motorcycle helmet.
26 When searching the residence police also located a room attached to the rear of the garage where dried green vegetable matter was hanging and there was a white plastic bag which contained a dried green plant, and also a dried green plant on the wall in the spare room.
27 This vegetable matter was conveyed to the Victoria Police Forensic Services Centre and was examined by a forensic botanist who concluded that the vegetable matter was cannabis and that the total weight of the cannabis was 799.1 grams. This gave rise to charge 5 on the indictment, cultivate a narcotic plant.
28 You were conveyed to a Police Station and a recorded interview was conducted. You gave a partial “no comment” interview but did state that:
·you rode your bike to the sisters’ premises and that everything after this was blacked out;
·you were completely medicated at the time on Cymbalta, which you had begun taking for the past 10 days;
·you took your medication in the morning on 22 May 2018 before attending work at 7:30am;
·when you finished work, you had three or four Wild Turkeys and then another tablet;
·you denied saying anything to the two sisters;
·you admitted smashing windows;
·you admitted the broken piece of helmet was yours;
·you did not remember attending their friend’s house;
·you admitted that your licence was cancelled and that the motorbike was unregistered;
·you admitted that both sisters had full and active intervention orders against you; and
·you admitted to possessing the cannabis found at your house.
29 Inquiries with forensic physician Dr Morris Odell revealed that your claim that you suffered a blackout based on mixing Cymbalta with alcohol was very unlikely.
30 The chronology of this matter proceeding to court is as follows:
22 May 2018 - date of offending
23 May 2018 – you were arrested, charged and remanded
23 May 2018 - filing hearing at the Melbourne Magistrates' Court,
15 August 2018 - committal case conference was held. At that stage the matter resolved and proceeded by way of straight hand-up brief. You entered a plea of guilty to the charges on the indictment.
1 November 2018 - plea hearing in the County Court.
31 I now turn to your personal circumstances.
32 As I noted earlier, you are presently 29 years of age, as you were when the offending occurred earlier this year and you do have a criminal record.
33 In April 2011 at the age of 22, without conviction you were put on what is effectively a good behaviour bond for 12 months and fined $400 on theft and burglary charges by a Magistrates Court.
34 There were no further court appearances until about a year ago when, in another Magistrates' Court, for unlawful assault, driving whilst authorisation suspended and cultivating a narcotic plant you were convicted and put on a 12-month community correction order. You were also fined $100 for using an unregistered motor vehicle on the highway.
35 I note that the current offending breaches the community correction order.
36 You are the youngest of four children. These days you have little to do with your siblings.
37 You attended one school until year 9 when you were "asked to leave", and then completed two years of year 10 at a High School. You struggled both academically and behaviourally at each school but excelled at sport, playing competitive football, basketball and cricket.
38 After leaving school you attended a Senior Secondary College for about one week and then discontinued.
39 You spent your time until age 18 using alcohol and cannabis. Subsequently you have worked intermittently as a forklift driver, storeman and casually as a stonework labourer. You have supplemented your income as a semi-professional poker player.
40 You also have a history of poly-substance use involving cannabis from the age of 13 and, later, methamphetamine, ecstasy, cocaine and regular alcohol in high quantity.
41 I note there is an early history of anxiety, migraine headaches and depression in your youth.
42 From the ages of 20 to 22 years you had your first serious relationship. That relationship ended after the death of a close friend. That partner was pregnant at the time of the break-up and terminated the expected child. You did not enter another relationship until you commenced a relationship with your ex-partner (the current victim) when you were 27.
43 The relationship was going well until you both were the victims of an attempted aggravated burglary in March 2017. Intruders in balaclavas with knives and machetes were attempting to get into your home. You confronted them and managed to keep them out.
44 The incident had a dramatic effect upon you. You thereafter felt unsafe in the home, moved out and your drinking escalated due to anxiety. Your relationship with your ex-partner ended in September that year after an incident of family violence where you assaulted her whilst intoxicated.
45 At the end of that relationship you returned to live at your parents’ home.
46 A report from Ms Carla Lechner, clinical psychologist, was tendered. Ms Lechner reported that:
· you present with symptoms of major depressive disorder and post-traumatic stress disorder;
· you also have a poly-substance abuse problem and were drinking heavily at the time of these offences;
· although not formally assessed, you impressed as having the capacity to reflect on the impact that your behaviour has on both yourself and others, but appear to be easily overwhelmed by social and emotional factors that undermine your judgement and decision-making in the context that you lack a range of adaptive coping skills and strategies;
· your mood disturbance is long-standing but has been aggravated by ongoing issues with anxiety and poly-substance abuse;
· you require intensive treatment for your mental health issues, both in custody and upon release into the community; and
· you are caught in a pattern of depressed thinking with an attendant feeling of hopelessness and see suicide as a viable future option.
47 Ms Lechner observes that in light of your mental health issues, specifically your extreme low mood and lack of access to intensive treatment, you are finding custody a particularly difficult experience.
48 Records also confirm that you had consulted a medical practitioner in January this year over feelings of isolation, depression and anxiety. You were diagnosed as having anxiety and depression and prescribed Cymbalta.
49 You had already been referred to and were attending a psychologist. I also note that these circumstances pre-date the offending by a period of only four months.
50 The violence charges to which you have pleaded guilty are serious and your particular behaviour is a serious example of them. Each of your victims endured a terrifying experience, and the emotional effects of such terror can be profound and felt for a very long time.
51 The victim impact statements received provide eloquent testimony of the effects of acts such as yours and are consistent with what the courts regularly observe from victims with these experiences. The two sisters were vulnerable young women, entitled to feel safe in the sanctity of their home. You abused their sense of security in their home by first smashing a window, contemptuous of the court-directed protection orders, leaving and then returning and smashing more windows around the house whilst shouting threats to kill including by slitting your ex-partner's sister’s throat. This was a serious example of a threat to kill.
52 Your offending was aggravated by comprising a repeated episode within the context of domestic violence. Your violent behaviour was then compounded by extending your aggression to invading the home of the sisters’ friend, twice threatening to kill him and slashing his leg and face. They are separate events involving an extended period of serious violence.
53 In mitigation I accept the matters submitted by your counsel, including:
·your early plea of guilty, for its practical effect as well as expression of remorse;
·your actual expressions of remorse, as evidenced by Ms Lechner and your letter of apology to the court;
·you have the support of your family, as evidenced by the letter from your father;
·the testimonials to your good character in other circumstances;
·when clear of the mind-altering effects of illicit drugs you have the capacity for rational insight and empathy;
·you have used your time in remand custody to good effect, engaging in positive activities including rehabilitation and work;
·your underlying mental health condition of depression and post-traumatic stress disorder; and
·the long-term nature of your addiction to illicit drugs, in the context that I accept that there is evidence of an underlying personality disturbance from an early age which is likely to have contributed to your use of cannabis at a time of immaturity - this is a matter that can be addressed in considering your prospects of rehabilitation.
54 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific to you and general to deter others that might be like-minded to offend, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and re-integrated into society.
55 The circumstances here are such that I consider the principles of deterrence both specific to you and general, punishment, denunciation and the protection of the community as being the prominent sentencing matters. I accept that the matters in mitigation do moderate what sentence I would otherwise have imposed.
56 I accept that your prospects of rehabilitation are reasonable but will in very large part be dependent on your ability to commit yourself to addressing your drug dependence issues and in particular the underlying mental health condition.
57 In formulating the sentence that I impose I am conscious of the need to avoid double punishment for discrete offences committed within the one incident - this is particularly relevant in consideration of charges 3 and 4. In the circumstances I consider some degree of cumulation is necessary to reflect the totality of the conduct.
58 Mr Elliot, could you now please stand.
59 On Charge 1 on the indictment of damaging property you are convicted and sentenced to 6 months’ imprisonment.
60 On Charge 2 on the indictment of threaten to kill you are convicted and sentenced to 18 months’ imprisonment.
61 On Charge 3 on the indictment of aggravated burglary you are convicted and sentenced to 3 years’ imprisonment.
62 On Charge 4 on the indictment of intentionally cause injury you are convicted and sentenced to 2 years’ imprisonment.
63 On Charge 5 on the indictment of cultivate a narcotic plant you are convicted and sentenced to 1 month's imprisonment.
64 On summary charge 5 of contravene a family violence intervention order, you are convicted and sentenced to 6 months’ imprisonment.
65 On summary charge 6 of contravene a personal safety intervention order, you are convicted and sentenced to 6 months’ imprisonment.
66 On each of summary charges 7 and 13 of use unregistered vehicle, you are convicted and fined $300.
67 On each of summary charges 11 and 12 of drive whilst disqualified, you are convicted and sentenced to 3 months’ imprisonment.
68 Charge 3 is the base sentence.
69 I direct that one year of the sentence imposed on charge 4, six months of the sentence imposed on charge 2, three months of the sentence imposed on charge 1 and one month of each of the sentences imposed on summary charges 5, 6 and 11 be served cumulatively on the sentence imposed on charge 3 and upon each other. The sentences are otherwise concurrent.
70 The total effective sentence is five years imprisonment.
71 I direct you serve a minimum period of three years before being eligible for parole. The sentence starts today.
72 You may be seated for the moment, Mr Elliot.
73 Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 190 days not including today be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
74 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed over all charges is seven years’ imprisonment with a minimum period of five years to be served before eligibility for parole.
75 At the plea hearing the Crown sought disposal and forfeiture orders in relation to the items seized by police and a compensation order for the payment of $400 to the two sisters, to all of which you consented and I have made those orders today.
76 Are there any other matters from either counsel?
77 MS TUENO: There is the discretionary licence cancellation in relation - - -
78 HIS HONOUR: Yes, I have considered that and I think in the circumstances I won't make that order.
79 MS TUENO: Yes. No other matters, Your Honour.
80 HIS HONOUR: Thank you. Ms Dubroja?
81 MS DUBROJA: No, Your Honour.
82 HIS HONOUR: Thank you. On the formal court order the same custody management notes will be made as I made at the plea hearing.
83 MS DUBROJA: I appreciate that, Your Honour.
84 HIS HONOUR: Let's adjourn to quarter to 12, please, Robert.
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