Director of Public Prosecutions v Elliott (a pseudonym)
[2021] VCC 540
•4 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAKE ELLIOTT (A PSEUDONYM) |
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JUDGE: | O'Connell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2021 | |
DATE OF SENTENCE: | 4 May 2021 | |
CASE MAY BE CITED AS: | DPP v Elliott (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 540 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly cause injury to three year old child under offenders care and supervision; Make a threat to kill to paternal grandmother; Driving while disqualified; No relevant prior convictions; Lack of remorse; Serious example of offence
Sentence: 7 months’ imprisonment; 12 month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Cameron | The Director of Public Prosecutions |
| For the Accused | Ms D. Caruso | Geelong Lawyers |
HIS HONOUR:
Introduction
Blake Elliot,[1] you have pleaded guilty to two charges arising from two separate incidents.
[1]A pseudonym.
On indictment J11281905.2 you have pleaded guilty to one charge that at Newtown on 13 January 2018 you recklessly caused injury to Edward Meyer[2] – incident one.
[2]A pseudonym.
On Indictment No. J12535597.3 you have pleaded guilty to one charge that at Grovedale on 30 August 2018 you made a threat to Ivy Horton[3] to kill her son Theodore Horton,[4] intending that Ms Horton would fear that threat would be carried out, or being reckless as to whether or not Ms Horton would fear that the threat would be carried out – incident two.
[3]A pseudonym.
[4]A pseudonym.
At your plea hearing, Mr Cameron on behalf of the Victorian Director of Public Prosecutions tendered and read to the court a summary of your offending. Ms Caruso, who appeared on your behalf, accepted that summary as accurate and capable of forming the factual basis for sentence. What follows is largely drawn from that summary.
Circumstances of offending
In January 2018 you were living with your then-partner, Abby Meyer,[5] and her son, Edward Meyer, in a two-storey unit in Newtown, Geelong. You had been in a relationship with Ms Meyer for about two months and had moved into her unit just before Christmas 2017.
[5]A pseudonym.
At around 5.30pm on 13 January 2018, Ms Meyer went out, leaving Edward in your care.
Around two hours later, a friend of Ms Meyer, Donald Beck,[6] visited the house, letting himself in through a damaged front door. He found you at the bottom of the staircase, where you claimed you were cleaning up blood because Edward had fallen down the stairs.
[6]A pseudonym.
Mr Beck found Edward in the downstairs laundry. He was naked, shivering and wet. He had cuts, bruises, bleeding, swelling, and marks under the side of his neck. Mr Beck carried him upstairs, dressed him and comforted him. You gave Edward some liquid Nurofen and shortly afterwards Ms Meyer arrived home.
As Ms Meyer approached the unit you met her outside and told her that Edward had fallen down the stairs. She went upstairs and saw that Edward’s face was swollen, that he appeared drowsy and that he was not talking very much. Ms Meyer drove Edward to Geelong Hospital with Mr Beck. After being assessed, he was transported by ambulance to the Royal Children’s Hospital.
Before leaving to travel to the Royal Children’s Hospital, Ms Meyer returned home to gather some personal belongings. You there spoke with her about what had happened to Edward.
You said that you had been in the upstairs bedroom, heard some loud bangs, and came out to find Edward at the bottom of the stairs. You repeated this version of events in your recorded interview with police of 14 January 2019. You said that Edward was crying and screaming after his mother had left and you had tried to calm him down. You said Edward threw a toy at you and you sent him to his room. You told police he started yelling and kicking the door.
You explained that you opened the door to his room and returned to your bedroom, where you were working on setting up a television. Next, you heard noises and a big thud. You said that you came out and saw Edward at the bottom of the stairs with his face towards the front door and arms up. He got up but fell backwards again. You said you saw that there was a lot of blood, so you got an ice pack and placed a Band-Aid on Edward’s head, but that made no difference. You then ran a shower for him but he was still bleeding so you wrapped him in a towel. Mr Beck then arrived.
You also told police in your interview that before this incident Edward did not have any injuries or bruises to his head or torso.
After examining Edward, Consultant Paediatrician Dr Timothy Davis from the Victorian Forensic Paediatric Medical Service, described and photographed multiple observable injuries, many of which could not be classified as accidental. For example, Dr Davis opined that neck bruising is not usually the result of an accidental fall and is “concerning for physical abuse in this age group”.
The injuries which comprise the charge of recklessly cause injury and which you accept you inflicted were as follows:
·Right cheek – red bruising 2.5 cm x 1 cm over the right cheek just inferior and lateral to the right eye
·Forehead – a 6 cm x 4 cm purple-red bruise over the majority of the mid and left aspects of the forehead. There was a linear, healing abrasion over the left forehead
·Right eye – purple-red bruising and swelling of the right upper eyelid
·Left eye – small laceration on the left upper eyelid. Generalised periorbital red purple bruising on the left upper and lower eyelid
·Left cheek – a 10 cm x 9 cm area of red-purple bruising over the left cheek
·Neck – 6 cm x 1 cm red bruise on the left submandibular region
These injuries were depicted, somewhat graphically, in the photographs taken by Dr Davis.
Your plea of guilty accepts that you inflicted these injuries on Edward and that at the time you did so, you appreciated the probability that injury would result. The means and the manner in which you inflicted those injuries on Edward, whilst he was under your care and supervision, is not known.
Incident two
On 30 August 2018 you drove your 2012 Holden utility to a property at Grovedale. That property is owned by Ivy Horton who is the mother of Theodore Horton. Theodore Horton is Edward’s father and Ivy Horton is Edward’s paternal grandmother.
When you arrived at the address you remained in your car with the engine idling. Ms Horton was inside the house at the time. When she noticed your car, she came outside for a better look and then approached your vehicle. Ms Horton asked if she could help you, and you responded with what was described as a “verbal tirade”. You screamed “fuck you” and demanded to know where her son was.
Ms Horton had never met you and did not know who you were. She thought you must have mistaken her for someone else and denied having any sons. You responded by saying, “Yes you do, your fucking son’s dead.” Ms Horton repeated the assertion that she did not have any sons and then you said, “Yes you do, Theodore, he’s dead if he doesn’t stop this. Fuck you, you’re all fucking dead if he doesn’t stop by this afternoon, he’s fucking dead.”
You then drove off at speed and in the process spun the wheels of your car. Ms Horton however had the presence of mind to take a photograph of the registration number of your car. She then went back into the house, where she was seen by another of her sons to be shaking all over and very upset. Those circumstances make out the charge of making a threat to kill.
The following day you attended at the Geelong police station where you were arrested and interviewed in relation to that matter and exercised your right not to comment on the allegations.
Further enquiries by police revealed that at the time you attended at Ms Horton’s property you were disqualified from driving. That conduct comprises the related summary offence of driving whilst disqualified.
Victim impact
No victim impact statements were tendered on the plea. I was told that an opportunity had been afforded to the victims of both incidents to provide victim impact statements if they wished. They declined to do so.
Despite the absence of victim impact statements in respect of incident one, it takes little imagination to appreciate that what happened to Edward must have been terribly frightening and traumatising for him. No child should be subjected to the infliction of injuries of that kind. Fortunately, no permanent physical injuries were sustained.
In respect of the second incident, Ms Horton was noticeably affected. As I indicated she was seen to be shaking all over after you threatened to kill her son. Clearly, you gave no thought as to what sort of effect your aggression would have on an elderly woman.
You should understand that the impact your offending has had on your victims is an important and influential consideration in the formulation of the sentence to imposed on you.
Procedural history
It is helpful, I think, to set out something of the procedural history leading to your plea of guilty.
You were arrested and interviewed in relation to the charge on indictment J11281905.2 on 14 January 2018. You were in fact charged on 1 May 2018 with intentionally causing injury and, in the alternative, recklessly causing injury.
That matter was adjourned to the Geelong Magistrates Court on 31 August 2018.
The day before that hearing, on 30 August 2018, you committed the offending the subject of the charge on indictment J12535597.3. You were also charged with attempting to pervert the course of justice, arising from the same conduct.
The first Indictment was set down for trial in the sittings at Geelong County Court commencing on 25 May 2020. It could not proceed because of the pandemic. The charges arising from the second incident were joined.
Your matter was then listed before me for a case conference and various pre-trial applications in September 2020. The two incidents were severed into two indictments and a number of evidential rulings were made.
On 5 February 2021 your matter was listed before me for a sentence indication hearing. The indication was sought in respect of the charge of recklessly causing injury to Edward and making a threat to kill Theodore Horton to Ivy Horton. The two more serious charges of intentionally causing injury and attempting to pervert the course of justice were not to be proceeded with if you agreed to plead guilty.
At the hearing on 5 February I indicated that if you were to plead guilty to the lesser charges I would nevertheless impose a term of imprisonment that must be served immediately.
Despite that indication, on 26 February 2021 you were arraigned and pleaded guilty to both indictments in their current form. The plea hearing proceeded on 21 April 2021.
That history shows that you have, finally, accepted responsibility for what happened to Edward. It also shows that your plea has facilitated the course of justice and by saving the community the costs of what would have been a difficult and potentially complex trial there has been a significant utilitarian gain. Those considerations will operate to substantially reduce the sentence that would otherwise have been imposed on you.
I note that it may not have practicable for you to plead guilty to these charges at an earlier stage in the proceedings because the Crown persisted with more serious charges. On the other hand, it was never suggested that you had offered to plead guilty to the lesser charges at any earlier juncture. The reality is, therefore, that your plea of guilty was entered at a reasonably late stage in the proceeding, and whilst your sentence will be reduced by reason of the factors I have already referred to, it will not be reduced to the extent that it would have, had you pleaded guilty at an earlier stage.
Personal history
You were born in February 1978. You were aged 39 at the time of the first incident and 40 at the time of the second. You are now 43 years of age.
You were brought up by your mother and stepfather, with whom you maintain a positive relationship. The environment at home was caring and your upbringing appears to have been generally happy. Both of your parents have provided personal references confirming their continuing support for you. Indeed, you are living with your mother at present. You have a younger sister with whom you are close. She also provided a supportive reference which describes your commitment to your extended family. You have a brother from whom you were estranged, but you have now repaired that relationship.
When you were 13 you learnt, inadvertently through family friends, that your father was not your biological father, and this appears to have had a destabilising effect on you. You were also the victim of a sexual assault perpetrated by a neighbour which you disclosed to your parents. The offender was prosecuted but you were teased and bullied by your peers about what had happened, forcing you to change schools.
You did not enjoy school, where you had difficulty sustaining attention and were easily distracted. You attended a number of different schools as your family would travel frequently for work.
You left school after completing year 11 and started a Diploma of Graphic Design, however the course lost funding so you were unable to complete it. You then worked for a year in a factory and subsequently in landscape gardening before relocating to England for some years. When you returned to Australia you worked in the industrial flooring industry from 2006 to 2017 until you suffered a workplace injury where you severed your finger. You returned to work but were shortly afterwards made redundant. You have been on Jobseeker benefits since.
You were married for a period of five years or so before your separation in 2017. It appears that in the setting of the break-up of your marriage and the sustaining of the work injury, you started abusing methamphetamine. You sought some assistance to deal with that abuse, however, it was said that you had relapsed into further abuse when charged with these offences. You told your assessing psychologist, Ms Ferrari, that you had been abstinent during 2020.
You have a criminal history. You were dealt with for some dishonesty and driving offences in your late teens and then, significantly, did not reoffend for the next 15 years or so. Since 2015 you have been convicted some alcohol related driving offences, obtaining property by deception and making counterfeit money,[7] for which you have received community correction orders. I was told there are some further matters pending which will be dealt with summarily.
[7] The dishonesty offences are not prior convictions for the purposes of the first indictment. They arise from an appearance at Geelong Magistrates Court on 22 June 2018.
In addition to personal references from members of your family, references were also provided by Dean Butters and Virginia Trewin. Ms Trewin formed a relationship with you about 13 months ago. She is aware of your offending and hopes this matter can be resolved so that you can build a future together.
Ms Ferrari’s report of 26 January 2021 sets out your background and describes the psychological testing that was carried out. At paragraph 95 she offered the following opinion:
Mr Elliott is a 42-year-old male presenting with symptoms akin to an Adjustment Disorder and a history of Stimulant Use Disorder. His substance abuse is inferred to have developed as a form of self-medication in response to poor coping and limited resilience when faced with psychosocial stressors. Mr Elliott was experiencing a number of psychosocial stressors prior to the offending which appear to have contributed to his symptoms, including conflict with his brother which led to him leaving the family home; unresolved issues relating to Mr Elliott’s ongoing legal proceedings within the Family Court relating to his divorce and property settlement with his ex-wife, and a sense of being unable to move forward with his life until this is finalized.
Ms Ferrari goes on to proffer the opinion that you should be regarded as a “low to moderate” risk of reoffending. I should indicate that I cannot attach very much weight to that finding, in the absence of any explanation or understanding as to what caused you to inflict the injuries you did on Edward. On the other hand, I have no difficulty in accepting Ms Ferrari’s view that you would benefit from psychological and specialist alcohol and drug treatment.
Defence submissions
Ms Caruso accepted that offending against children in circumstances such as these must be seen as grave and will require an emphasis on the sentencing purpose of general deterrence. She stressed however the lack of evidence of any previous similar behaviour towards Edward and the apparent absence of any long-term physical consequences from Edward’s injuries.
The threat to kill, it was submitted, was a “lower level threat” made spontaneously and in circumstances in which you experienced a high degree of stress flowing from the charges associated with the assault on Edward.
Ms Caruso emphasised that none of your previous criminal history involved violence or threats of violence. You had had productive periods in your life and this offending was ‘out of character’ for you. It followed that specific deterrence and community protection should be given less weight.
Regarding your prospects for rehabilitation, it was acknowledged that the commission of further driving and drug offences, which are pending, as well as an outstanding CCO contravention, were of concern. Counsel explained that you have struggled with motivation in the context of the uncertainty generated by these proceedings. Ms Caruso submitted that you have some insight into the importance of compliance with any future CCO.
On the sentence indication it was submitted that a punitive CCO would be sufficient to adequately address the competing sentencing purposes for the charge of causing injury recklessly, whilst a fine would be appropriate for the charge of threat to kill. Counsel persisted with that submission on the plea.
It was also submitted that imprisonment would weigh more heavily on you because of the Adjustment Disorder diagnosed by Ms Ferrari.
Prosecution submissions
Mr Cameron submitted that the objective gravity of your offending in the first incident was elevated by Edward’s very young age, his vulnerability, the significant breach of trust that had been placed in you and the substantial and numerous injuries you inflicted on him.
Regarding the second incident, it was submitted that the seriousness of the offending was aggravated by the fact that the threat was directed at an elderly woman right outside her own home and had a visible affect on her.
Mr Cameron accepted that your plea of guilty had strong utilitarian value.
Whilst it was accepted that you have not previously been convicted of offences involving violence or threats, there were nonetheless multiple instances of failing to comply with court orders involving CCOs or bail undertakings.
General deterrence, Mr Cameron submitted, was of particular importance in a case involving violent offending against a young and vulnerable complainant. Specific deterrence had some role to play considering your criminal history, and in particular your record of poor compliance with court orders.
It was also contended that your failure to engage with previous CCOs, in addition to the breach of your 2018 order, which this offending constitutes, is relevant to your prospects of rehabilitation. Those prospects should be assessed, it was submitted, as ‘guarded’. That was so having regard to a number of factors in addition to your failures to follow through on your CCOs, such as Ms Ferrari’s view that you have a ‘limited coping milieu’ where there have been recent relapses into drug use.
It was acknowledged that moderation of your sentence, on the basis that a term of imprisonment would weigh more heavily on you due to your Adjustment Disorder, was open, but would necessarily be limited due to the lack of evidence as to the extent to which your condition would impact on you in custody.
It was also accepted that the ongoing impact of the COVID-19 pandemic on how a term of imprisonment must be served – that is, in much more restrictive conditions – can provide the basis for some reduction of your sentence.
In all of the circumstances, the prosecution submitted that an immediate term of imprisonment should be imposed, but that it was open to impose such a sentence in combination with a CCO.
Consideration
In considering these submissions I accept that there are a number of matters which should operate to significantly reduce your sentence. They include your plea of guilty, the fact that you have no previous convictions for offences of violence, the fact that incident one appears to be an isolated instance there being no suggestion of ongoing mistreatment and that you have the support of your family and partner, which will, I am sure, assist in your rehabilitation.
The restrictive prison regime imposed by the pandemic and your adjustment disorder diagnosis provides some further basis for mitigating sentence, though the mitigation flowing from that latter consideration will be very limited.
That said, this is unquestionably a serious example of the offence of recklessly causing injury directed as it was at a vulnerable young child in your care. Precisely how you assaulted Edward is not known, but what is clear is that in assaulting him, you must have appreciated that the force used was more likely than not to cause him injury, and yet you persisted. Indeed, you inflicted multiple injuries during what must have been a terrifying experience for him.
Lamentably, I can see no basis to find that you are sorry for what you did to Edward, or for that matter to Ms Horton. Your lack of remorse does you no credit and diminishes your prospects for rehabilitation.
In sentencing you I must emphasise that violent or threatening behaviour, particularly when directed at the more vulnerable, is unacceptable, and that those who might be disposed to act in similar ways should understand that such conduct will be met with immediate imprisonment.
I also accept the prosecutor’s submission that your lack of regard for previous court orders should to some extent be reflected in the sentencing purpose of personal deterrence.
It is perhaps fortunate from your perspective that the maximum term of imprisonment that might be imposed for the offence of recklessly causing injury is five years. That relatively lower maximum penalty constrains the punishment which might otherwise be imposed on you.
In this case I am satisfied that there is no alternative but to impose a term of imprisonment which must be served immediately. However, I do see some benefit to the longer term interest of the community in having your psychological and drug rehabilitation supervised in the community into the medium term.
For that reason I requested that you be assessed as to your suitability to undertake a CCO. In response I received two reports. The first charted your poor history of compliance with Corrections. The second was provided by the Mental Health Advice and Response Service.
In the first report the assessing officer stated:
Despite Mr Elliott's reported motivations to comply with a further community-based disposition, the writer cannot offer the Court a finding of suitability for a ninth community-based disposition at this time. This is attributed to the following factors. Firstly, Mr Elliott's extensive history of non-compliance and further offending whilst on community-based dispositions is respectfully indicative that a CCO is no longer a specific deterrent to him. Secondly, by failing to attend drug and mental health treatment on numerous occasions indicates an inability to demonstrate any agency or place any importance on his own rehabilitation, a factor which is necessary to be successful on a CCO. And finally, Mr Elliott was unable to articulate how he would perform differently on a further corrections order if imposed, save for “I will do anything to stay out of jail”.
He has been assessed as an unsuitable candidate for a CCO at this time and was assessed as a high risk of general re-offending.
Despite that very negative report I have determined that for part of your sentence you will be required to undergo a further CCO. You should be in no doubt that if you breach it, you will be brought back before me and you will be re-sentenced on the original offending.
The report from Mental Health Advice and Response Service stated in part:
It is the opinion of the Forensicare clinician that Mr Elliott requires ongoing mental health care to be made a condition of his CCO. He would benefit from a treatment review by his General Practitioner to determine whether he would benefit from anxiolytic or antidepressant medication. He would benefit from counselling with a psychologist via a Mental Health Care Plan to assist him to improve his self-esteem and manage his anxiety and depressive symptoms. He may wish to address his trauma history with his psychologist in the future.
As Ms Ferrari stated in her report, “Mr Elliott would also benefit from specialized AOD counselling aimed at improving his insight into triggers, risk periods, alternative strategies and a relapse prevention plan.”
In light of those comments, mental health treatment will be a condition of your order.
Sentence
Taking all relevant matters into account you will be sentenced as follows:
On the charge on Indictment number J11281905.2, being one charge of recklessly causing injury, you will be convicted and sentenced to six months’ imprisonment.
On the charge on indictment number J12535597.3, being one charge of making a threat to kill, you be convicted and sentenced to three months’ imprisonment.
On the related summary offence of driving whilst disqualified will be convicted and sentenced to one month imprisonment.
I will direct that one month of the sentence imposed on the second indictment be served cumulatively upon the sentence imposed on the first indictment. I will order that the term of imprisonment imposed on the related summary offence be served concurrently with all other sentences. The total effective sentence therefore will be seven months’ imprisonment.
In addition to the sentence imposed on indictment J11281 905.2, being one charge of recklessly cause injury, you will be required to undertake a Community Correction Crder for a period of 12 months. The conditions of that order will be that you undergo supervision, mental health treatment and rehabilitative treatment for drug abuse.
There is no pre-sentence detention to be declared.
Pursuant to s 6AAA of the Sentencing Act 1991 I will declare that but for your plea of guilty you would have been sentenced to a total effective sentence of two years and three months imprisonment with a non-parole period of 18 months.
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