Director of Public Prosecutions v Ellis

[2019] VCC 14

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-01428

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT ELLIS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	22 January 2019
CASE MAY BE CITED AS:	DPP v Ellis
MEDIUM NEUTRAL CITATION:	[2019] VCC 14

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 D. Brown
For the Accused	Mr J. Williams

HIS HONOUR: 

1In small country towns, the annual picnic races is time for the community to come together and enjoy good times.  So it was at Penshurst on Boxing Day 2016.  You, Robert Ellis, went to the races with your family and enjoyed the company of many friends you have in the town.  Unfortunately, you drank too many beers.  So too did the male victim.  You, it seemed, remained in good spirits.  The victim did not.  When he was intoxicated, he acted in a belligerent way.  Most seriously and regrettably, he expressed racist abuse towards you in front of your wife, children and friends.

2You are an indigenous man and proudly so.  You have on the evidence before me suffered racial abuse throughout your life, especially when a younger person.

3By way of example from the evidence given before me, your partner said that in answer to the question, "Has he spoken to you about how he feels as an Aboriginal man?"  Your partner answered, "Sometimes he does.  I've seen stuff in the past that's happened to Robbie, like I've seen him - people be racist to him and people say smart comments to him.  It happens all the time which is very sad in this day and age but it happens.  It continually happens and he never, ever - he never ever - he just cops it.  He just cops it and he will talk to me and I have seen it."  It went on, "Have you ever known him to be violent?"  The answer was "No, never.  He's never been violent."

4Given my experience in the criminal justice system now for a number of years, I have no doubt about the evidence in respect of the racial abuse.  Indeed, I am sure there could be more said than was of the explicit and implicit prejudice experienced over the years by you and your family.

5You have, it seems, dealt well and with the indignity the racism that has been expressed in the past.  On this occasion, you did not.  After the races had finished, you remained at the track longer that your partner who took the children home. 
You walked home later and unfortunately, the only route to your house took you passed the victim's house.  Instead of walking home and continuing to enjoy the Christmas break, you had what one of your friends accurately described as a "brain snap."

6You went to the house where the victim was staying with his ex-partner, the female victim.  The male victim had gone to bed to sleep off his day of drinking.  You went to the back door and asked the female victim if her husband was in.  She said he was and you just walked in and went to the bedroom.  There, you attack the defenceless male victim, punching him repeatedly to the head, causing facial fractures and significant bleeding.  The female victim, who needed a stick to aid her movement, came into the room and was shocked and in tears and asked you to stop.  It seems you came to your senses and stopped and apologised more than once to the female victim.  Then you left.  The police and ambulance were called.

7Ultimately at the Hamilton Hospital, the male victim was found to have serious fractures to his nasal bones and plates.  He declined to remain in the hospital.  It seems from his victim impact statement that he has returned to Tasmania where he lives, looking after his elderly mother and fortunately, has not reported any complications.

8You, Mr Ellis, went home and sobered up, confessing what you had done to your very shocked and disappointed partner.  As a real sign of your character or as a sign of your real character, the next day you went back to the victim's house and apologised directly to him.  You then rang the police yourself and admitted what you had done.  Your record of interview was on 29 December 2016, where you continued to express genuine remorse.

9Before moving to other additional, powerful matters in mitigation, I need to make clear this offending was serious and shameful.  What cannot be overlooked is that the attack was in the family home of the female victim, where the male victim was staying at the time.  Whatever the male victim had done earlier, he was entitled to feel safe in the female victim's home.  The female victim, who had nothing whatsoever to do with the earlier events, was also entitled to feel safe and not to be exposed and traumatised by unnecessary, gratuitous violence in her home.  The attack was a cowardly one on a defenceless man sleeping off his excessive drinking.  Forceful punches to the face can bring about serious and permanent head injuries.  Here, fortunately for the victim and for you, the injuries were not permanent nor involved brain trauma but the fractures to the nasal bones reveal the significant force you used.

10The attack has had an adverse effect on both victims as set out in their victim impact statements.  I turn first to the female victim's statement.  She describes herself accurately as a disabled woman, who currently lives in the house with her two sons.  She says "Fortunately, they were not there at the time."  It was Christmas and their father, the male victim was visiting when he was attacked by you when he was asleep.  She says, "There was so much blood everywhere, it was unexpected and so violent."  She says the only way that she could stop the attack was to sit on the bed and reason with you.  She said that since then, she has had insomnia and rethinks the whole incident.  What really upset her was the gurgling sound of the male victim as he struggled to breathe through his smashed and bleeding nose.  This reminded her of an earlier, sad event involving a young son of hers who died.  So the attack has brought back to her a state of Post-Traumatic Stress Disorder.   She describes herself as back to square one with her psychiatric treatment.  She describes that there has been physical effects on her where her blood pressure and heart rate have gone up.

11Ultimately, she says she "just can't believe that this happened to us. 
Simply living in her little house, minding her own business with her children who just had a lovely Christmas with their dad and all of a sudden, my entire life was ripped upside down by a total stranger.  My peace of mind is broken and I don't feel safe in my house.  I can't sleep at night.  I'm just barely hanging in there right now.  This was a horrible year," she says, "and the trauma continues. 
I wish that five minutes had never happened."

12The male victim writes that he had been living in Tasmania, as I have mentioned, caring for his mother who has early dementia.  He visited his children at Christmas and was bashed in his sleep.  He does not remember much of it.  He says his children were upset at the black eyes and he had to keep telling them that they were going to be safe.  Really, what he emphasises is the great vulnerability of the female victim who does not feel safe in the house and quite often needs reassurance, including physically ensuring that the doors are nailed shut.  He had to step in twice to stop her hurting herself and he is worried about taking her to the psychiatric wards.

13What he says is that he has got two vulnerable women who depend on him in two different states, "And each time I leave one of them, the other one falls apart.  All the time, I'm just trying to keep it together.  I've had to go back to Tasmania several times to attend to Mum's needs and each time, the female victim has had issues and I've got to fly back."  These are the ongoing difficulties for the victims for your attack.

14As is probably clear, I have not overlooked that your crime was retaliative violence in a sense following the racist abuse.  It is obvious that there is no excuse for such cowardly violence.  You should have kept walking home. 
You know that now.  But also the High Court a long time ago in the case of Neal, but also our own Court of Appeal or Court of Criminal Appeal in the case of Pearce have made clear that racism is a scourge that can and does inflame emotions of an accused, especially someone who has endured racist abuse in the past.

15As was pointed out by your counsel, Mr Williams, in his high quality and very professional written and oral plea, the Court of Criminal Appeal of Victoria in the case of Pearce (1983) 9 ACrimR 146 made clear that in a case where there is racial discrimination, this was a powerful extenuating circumstance.
Brooking J with the agreement of Young CJ and Kaye J (senior) dealt with a young Aboriginal man who along with five other Aboriginal friends was invited to a party in a country town in Gippsland.  Once there and behaving appropriately, another person at the party took it upon themselves, they had no right to do so but they took it upon themselves to ask the group to leave or they would be bashed.  It was clear they were being asked to leave because they were Aboriginal.  The men left but unfortunately, they returned armed and a fight ensued.  Mr Pearce discharged a shotgun, seriously injuring another man.  His two year sentence of imprisonment was reduced to one year.  In his reasons for considering the term of imprisonment of two years as being manifestly excessive, Brooking J said the following,

"Were it not for one matter, I should not be persuaded that the sentence passed was not within the range of sentences open.  The one matter which seems to me to make this case unusual and to mitigate the offence to a very substantial degree is what I will, for want of a better word, call the provocation that had been offered to the applicant.  He and his companions had been to the party.  They had, so to speak, settled in at the party and were behaving themselves when they were suddenly and most offensively told to leave by persons who had no authority to do so and who wanted to get rid of them simply because they were Aboriginals.  This conduct and the applicant's reaction to it are moreover to be judged against what was disclosed as concerning the applicant's background and disadvantages facing Aboriginals in the district.  It was not and could not have been suggested that there was provocation as that expression is generally understood in the criminal law but the insult offered to the applicant and his companions is a highly significant extenuating circumstance."

16It is also noted that like in this case, the accused, Mr Pearce, called the police, made admissions, had limited priors and was considered a young man of good prospects and character.

17So as required by our Sentencing Act, I must consider the gravity of the crimes you committed and importantly, your moral culpability.  In my view, the racial abuse is a matter that as described by Brooking J is a significant extenuating circumstance.  It lowers your moral culpability.  By itself, it does not mean a lenient non-custodial sentence would be open but it is part of the whole mix of circumstances to be synthesised.  In this regard, there are many other compelling matters that have taken place in this case, in that it takes this matter to an exceptional category where a non-custodial penalty is the just and appropriate sentence.

18Some of the mitigatory matters have been touched on.  Principally, the powerful evidence of immediate remorse and genuine contrition.  Though in all likelihood you would have been detected, it should not be ignored that you were the one who rang the police, absolving them and the prosecution of any difficult, time consuming and costly investigations and prosecutions.  You apologised to each of the victims as soon as was possible.  Your record of interview was replete with expressions of remorse.  Those that know you best, your wife and friends, attest to your continuing remorse.  Your wife or partner said in her evidence before me in answer to the question, "Have you spoken to Robbie about this assault?"  She said, "Numerous times, numerous."  "What has he told you about it?"  She answered, "How sorry he is.  How he's not that sort of person. 
He feels that he's let me and the kids down which he hasn't.  We sat up for hours and hours some nights ending in me quite upset of what's going to happen but he's extremely sorry for it."  There was other evidence from others as to your remorse.

19As I said at the plea, it is hard to imagine a more crystal clear expression of remorse.  The community, our community is always willing to give someone a second chance if they are truly remorseful, as you are.  Your plea of guilty must be acknowledged by a sentence that is less and, in this case, of a different kind than would have been the case had you pleaded not guilty and been found guilty by a jury.

20Another important matter in mitigation is the long delay in this matter being dealt with by this court.  Plainly it is more than two years since the crime and many, many months since it resolved as a plea in this court.  It has weighed heavily on you in the meantime.  This too must be properly acknowledged and importantly in the time that you have been on bail, you have resumed your lawful, hardworking, family oriented lifestyle.  The matters mentioned thus far as mitigatory must not just be raised and then given mere lip service. 
The impact must be palpable and appreciable by you and by others in your circumstances who plead guilty, are remorseful and then are confronted with delay.

21In the end, the most significant mitigatory weight must be given to your own unique and tragic personal circumstances.  In the overall synthesis, these are the matters that tip the scale.  Firstly, I will touch upon your upbringing which has aspects that deserve appropriate mitigatory impact.  You were born and raised in Hamilton.  Both your indigenous parents suffered from alcoholism.  Your parents separated when you were young.  Neither parent was capable of caring for you.  There was in your early years drunken violence in the home.

22Ultimately, after a number of chaotic and disruptive years, you were placed in foster care from the age of ten.  For a time, you were with your older sister but she died tragically in a car accident when you were 12.  That left a significant scar on you.  You moved into other foster homes and with an aunt.  Eventually, you were a boarder at Monivae College in Hamilton and with foster parents during the weekends.  You remained at Monivae College until Year 11. 
You excelled at football and cricket and now still play competitively at the age of 38.

23After school, you were immediately engaged in employment and have sustained a very solid work history ever since.  You established a career as a house painter with John Cameron as your employer.  He described you as the most reliable, hardworking, happy person he has had working for him in
40 years in business.

24Before moving to the most significant aspect of your personal circumstances,
I pause to note that in respect of the aspects initially mentioned by Brooking J or insightfully mentioned by Brooking J in Pearce about the difficulties of the indigenous communities, these matters have been solidified by the High Court in the more recent cases of Bugmy and in our Court of Appeal in the case of Marrah.  In those cases, unlike this, the issues were more about an accused with continuing recidivism and the need for the sentencing judge to continue in those circumstances to factor into the mix the ongoing and undiminished effects of profound social disadvantage.

25Here, while there is little prior history of crime, nonetheless, I take into account the dislocated family circumstances and parental alcoholism and violence that you experienced as a young person.  I also take into account the racism that you experienced as set out by your partner and in other evidence.

26You have moved from the employment with Mr Cameron to that of Mr Ellis, Scott Ellis, who described you in like terms to that of Mr Cameron. 
Ultimately, you wish to establish your own handyman business.

27So what can be seen is that from a fractured, chaotic beginning, you have worked hard to become a contributing, hardworking man.  You have some relevant prior convictions but none since 2006.  They do not loom large but they are not totally ignored.

28What is however the most significant of all your personal circumstances is your own current family situation.  You have been in a loving and stable relationship for over 15 years.  Your partner works in a responsible job as a public servant in Hamilton.  You have four boys aged at the time of the plea as 12, 11, five and six months.  A family of four active boys obviously requires a full time commitment.  Your partner's evidence was compelling as to your genuine dedication to your children, giving them what you did not have yourself. 
But tragically there is more to it than that.  Your second son suffers from the cruel, debilitating and sadly fatal disease of cystic fibrosis.  The care of him and the psychological burden of his illness would to most be overwhelming but you and your partner heroically manage all that befalls you.

29I do not wish to dwell on the sadness of what confronts your son, you, your partner and your family, but the treating physician at the Royal Children's Hospital wrote in 2017 the following.

"The daily treatment regime for your second son is complex, tiring and time consuming.  It includes chest physiotherapy, a special diet, that's high in salt and energy and enzyme replacement therapy with meals, an intensive exercise program and medications, oral and inhale, including antibiotics for the management of chest infections."

30Your second son attends at the outpatient clinics for medical assessments every two to three months, and that involved meeting specialist physicians, physiotherapists, dieticians, cystic fibrosis coordinators and includes investigations as to respiratory function tests.

31When your second son is unwell with chest exacerbation, he experiences reduced exercise tolerance, fatigue, loss of appetite and increased cough. 
He requires regular admissions to hospital four times a year for ten to 14 days for intravenous antibiotics and chest physiotherapy.  These times are call the "tune ups" and you and your wife share the duties in relation to those in Melbourne.  I will say more of those shortly.

32In November 2018, the treating physician, Professor Ranganathan, wrote the following,

"Your second son is having admissions to hospital every three months for a tune up.  That involves ten to 14 days of intravenous antibiotics and intensive chest physiotherapy.  His most recent admission was in November 2017.  At the time the family were advised that his IV access had become extremely difficult and he is currently undergoing vein mapping to plan for an insertion of an infra support, a permanent venous access device that sits below the chest wall.  It is inserted with a surgical procedure."

33I have been told today that that procedure has occurred and they are happy with it and he continues with the regular tune ups using the IV access that has been established.

34As I have said, you and your partner go to appointments in Melbourne, taking the whole family at significant cost and effort.  You share the 14 day tune ups inpatient periods mostly in Melbourne but some in Warrnambool for the second week when it can be arranged.  Each day, there is tablets that must accompany any food intake and add to between 40 and 50 a day.  There are vaping machines, physiotherapy.  It is all trying and mentally a great strain with a shadow of no cure and a sad, hard end to follow.

35The law has been immemorially able to show mercy where it is deserved, especially for the old, the sick and the very young.  That applies to other circumstances where it is not the accused but a child of the accused who is sick and vulnerable.  A child's illness and the care needed and the prognosis means that this is an exceptional set of circumstances.  The Crown did not argue that it was anything other than that in an exercise of true fairness and insight.

36That means that I am well authorised to extend mercy to you as a consequence of your child's illness and as a consequence of the overwhelming burden that would fall to your partner with the task of looking after a sick child and the other very young child, one who is still under 12 months old, if you were incarcerated.

37The tension here is that the offence of aggravated burglary is serious as evidenced by the long maximum term set by our parliament of 25 years.  The Court of Appeal has spoken in recent times of how sentences must acknowledge that maximum term and the community's abhorrence of this crime.  That said, this crime did not involve some of the graver aspects of aggravated burglaries often seen in these courts.  That is, the use of weapons or truly breaking or bashing through doors, going in company and having a protracted period of violence and threats within the house.

38However, the High Court and the Court of Appeal has spoken of the importance of individualised sentencing, that is each case to be dealt with on its unique facts.  This case is unique as to why you committed the crime arising out of racist taunts.  Who you are in terms of your dislocated upbringing but now establishing a solid, lawful lifestyle.  Who you are in the sense that your true character was expressed by deep remorse and immediate apology.  But also important is what the future holds for you in respect of your child's illness. 

39Thus, what is open is what the Court of Appeal in the important case of Boulton described as the changed sentencing landscape of imposing long, onerous community corrections orders.  The Court of Appeal spoke of serious crimes that would ordinarily attract significant terms of imprisonment now being able to be appropriately punished by community corrections orders.

40This is one of the rare cases of a violent assault in the context of an aggravated burglary where a penalty other than some immediate gaol is appropriate and just.

41The important sentencing purpose of general deterrence remains critical. 
As has been said an onerous community corrections order can act is a deterrent even though the offender is in the community.  I am reminded of the words of the then Attorney General in introducing the original community corrections order legislation who, in the second reading speech, emphasised that a community corrections order has an important advantage over imprisonment that families can be kept together.  That is highly relevant in these unique circumstances.  Thus, rehabilitation is achieved, not necessarily by programs but by supervision and by you remaining in the community.  You will, I am sure continue to do as before, but having learnt a hard lesson by these years of being before the courts.

42Your crimes are denounced.  They were shameful and frightening and have damaged others.  However, in my view, denunciation is adequately met by a lengthy community corrections order that I am about to announce.  I intend to impose an aggregate sentence for committing the crimes of aggravated burglary and recklessly causing injury.  You are sentenced to a community corrections order for a period of three years and three months.  You are to undergo certain conditions being 250 hours of unpaid community work and be under supervision throughout that time.

43Have you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of four years with a minimum term of two years and three months.

44There will be a document produced shortly which I will ask you to sign, if you consent to it, setting out all the conditions of your community corrections order.  There are conditions that I have not read through to you now because they apply to everyone.  The ones that apply separately and uniquely to you are the 250 hours of unpaid community work and to be under supervision. 
Two hundred and fifty hours of unpaid community work in your circumstances will not be easy but it is not intended to be.  It is the punishment for the crime and you will be expected to do each and every hour when required. 
You understand that.

45Is there anything further?

46MR BROWN:  No, Your Honour.

47HIS HONOUR:  The order, Mr Ellis, starts today and goes until 21 April 2022.  You will have to attend at the Warrnambool Community Corrections Service at 769 Raglan Parade to get this order started and manage it from there.  So the terms that apply to the community corrections order are these.  You are not to commit another offence for which you can be imprisoned during the time the order is in force.  Just remain out of trouble.  You must comply with any obligation prescribed by the sentencing regulations.  They will end to take a photograph of you and identify you in various ways.  Just cooperate with all that.  Indeed, everything that I am about to say will be about cooperation.

48You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Office down there in Warrnambool,
Raglan Parade, within two clear working days of this order starting.  So get back there and get registered down there.  You must not leave Victoria without getting permission to do so.  So just ask them about any trip over the border and you must obey all lawful instructions and directions from them.

49The conditions that apply to you in addition to those mandatory ones I have just outlined are the 250 hours of unpaid community work over the 39 months and to be under supervision for the 39 months.  So under supervision, they will require you to report in and make sure that everything is going well.  If you sign that order, it will bring the matter to an end in respect of this court.  Can you take that down to him, Mr Williams?

50MR WILLIAMS:  Yes, Your Honour.

51HIS HONOUR:  Actually, come out of the dock, Mr Ellis.  Take a seat just behind Mr Williams there.

52I have signed that.  You will get a copy.  There is nothing further?

53MR BROWN:  No, Your Honour.

54HIS HONOUR:  I am grateful to Mr Hevey in the outset and to you, Mr Williams, for your considerable assistance in this matter.

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