Director of Public Prosecutions v Ellis
[2018] VCC 1902
•8 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00088
Indictment No: H11457041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER ELLIS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 1 October 2018 | |
DATE OF SENTENCE: | 8 November 2018 | |
CASE MAY BE CITED AS: | DPP v Ellis | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1902 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Aggravated burglary – intentionally cause injury – threat to kill – related summary charge of resist an emergency worker on duty – Bugmy v R (2013) 302 ALR 192 – immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Henderson | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms A Brennan | Victoria Legal Aid |
HER HONOUR:
1 Peter Elllis, you have pleaded guilty to one charge of aggravated burglary with intent to assault, one charge of causing injury intentionally, one charge of make threat to kill and you have pleaded guilty to a related summary charge, and that was Summary Charge 9, which was resist emergency worker on duty.
2 Mr Ellis each of the charges are serious and that is reflected in the maximum penalties that are prescribed by Parliament and they are as follows:
(a) aggravated burglary – 25 years’ imprisonment;
(b) intentionally causing injury – 10 years’ imprisonment;
(c) threat to kill – 10 years’ imprisonment; and
(d)resist emergency worker whilst on duty – 60 penalty units or 6 months’ imprisonment.
3 You have admitted your prior criminal record and there are seven court appearances in Victoria spanning the period from 31 July 1997 to 17 May 2017, and one court appearance at the Downing Centre Local Court, NSW that was recorded on 17 May 2000.
4 Of relevance, there are court appearances and convictions for crimes of violence against a person.
5 Commencing on 31 July 1997, there was, without conviction, an appearance in court in respect to assault by kicking and assault by police, and other drug related offences for which you were placed on an adjourned undertaking for one year.
6 On 17 October 2002, there is a conviction recorded for unlawful assault for which you were sentenced to 2 months’ imprisonment that was wholly suspended, and on another charge of unlawful assault you were placed on a community-based order for 6 months.
7 On 4 March 2009, you were dealt with at the Broadmeadows Magistrates’ Court, for attempted robbery, recklessly cause injury, assault police and use insulting words in a public place, and robbery, for which a 3-month term of imprisonment was imposed, but wholly suspended.
8 At the Sunshine Magistrates' Court on 6 October 2016, you were convicted of some further crimes of violence including an unlawful assault, affray, recklessly cause injury, contravene a personal safety intervention order, and other charges for which you received a term of imprisonment of 90 days to be followed by a 12-month community correction order with special.
9 After that sentence was imposed, you were exited from custody around 6 October 2016 and you had commenced on the community correction order.
10 The offending, the subject of this indictment, therefore contravenes the core condition of that order and is an aggravating feature of this offending.
Participation in Koori Court
11 An important aspect of your plea was that you consented to have all your charges dealt with in the Koori Court division. In doing so, you agreed to participate in a process that involved what is called the sentencing conversation and you appeared before myself together with Elders and Respected Persons, Aunty Jackie Stewart and Uncle David Farrell.
12 The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of Aboriginal offenders.[1]
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
13 Participation in the process is not easy. Indeed, it is challenging and in this sentencing conversation you participated actively and genuinely and that is a factor that mitigates punishment. You expressed your shame, sorrow and regret for your conduct and its effect upon the victim, Ms Belinda Scott. You made no excuses for your behaviour and took full responsibility. You responded appropriately when reprimanded by the Elders about your lack of judgment, poor conduct and the consequences of your offending.
14 You are a man of Aboriginal descent through your grandparents who both have connections with the Bundjalung Tribe from Northern New South Wales and the Wakka Wakka tribe from Queensland. Your mother was born at the Tabulam Mission which is located in Northern New South Wales, and she grew up on Cherbourg Mission which is in South east Queensland.
15 You have strong connections with the Victorian Aboriginal community through your long term employment and involvement with the Aboriginal Health Service.
16 At the hearing you were supported by your long term partner, Hayden Elliott, and members of his extended family.
17 I will now turn to the circumstances of the offending, the subject of the charges and I have had regard to what was said in the Crown opening which was read at the plea hearing and is marked Exhibit 1.
18 You were 39 at the time of the offending and then residing in Brookfield, a suburb that is located in the west of Melbourne. Belinda Scott, the Victim, lived with her partner, James Varga, in that suburb and they were both part of your friendship group.
19 A couple of weeks prior to the offending Ms Scott had asked to borrow $50 from you and you agreed to lend her the money on the condition that it would be repaid. Then about a week later, you and Hayden, agreed to purchase the motor vehicle belonging to her partner, James, for the sum of $1,200 and a deposit of $200 was paid.
20 A few days later, Hayden called and told James that he no longer wished to proceed with the purchase and wanted the deposit returned.
21 One week prior to the offending, Hayden, went to the victim’s house seeking the return of the moneys and was told by James that he did not have the money then but he would contact him when he did. That is the context of the offending.
22 The offending involves you attending Ms Scott’s house on 24 May 2017, at around 6.30pm, and whilst standing outside the front door you screamed out, “I want my money, if you don’t I’ll kill you or get people on to you”.
23 The victim was standing inside the front door and screamed out, “You’ll get your money dog”. The front door of the house was closed and locked.
24 James Varga’s mother, Ann, was also present at the house. She heard a bang coming from immediately outside the front door. She went to the front door and turned the knob and as she did so, you kicked the door, causing it to fly open and entered the house. You were not given permission to kick the door or enter the house (Charge 1, aggravated burglary with intent to assault).
25 Once inside, you immediately pushed past Ann Varga and went towards the victim, who was about 2 metres away towards the rear in the hallway shouting “I’m going to fucking kill you” (Charge 3, threat to kill).
26 You then grabbed Ms Scott on the shoulders and pushed her to the ground, causing her to fall onto her back. As she was lying on the floor, you grabbed and bit her left leg. She was kicking back at you and scratched your face. You struck her twice to the top of her head using a closed fist. She continued to kick scratch at you in an attempt to get you off. You then leaned over the victim and placed your right elbow on her throat and pushed down, causing her to have difficulty breathing for about 3 or 4 seconds. You then grabbed her left arm and bit her arm. She then used her right arm to try and push you away. You then bit her right arm (Charge 2, intentionally cause injury).
27 You then stood up, at which time the victim kicked you and caused you to fall over backwards onto some bicycles that were inside the house. You then leaned over and said to her “I want my money” and she replied “You’ll get your money tomorrow”. You replied, “You’re a liar”, to which she said, “I’m not lying you’ll get it tomorrow”.
28 You then left the house and you were in a highly agitated state and yelling at Ann Varga, who had gone outside to seek assistance. She tried to settle you down, and asked you if you had been drinking, to which you replied “Yes”. You told her that you had been drinking some Bourbon. She urged you to stop being stupid and hop in the car and leave.
29 You then got into your vehicle, at which time the police arrived. They saw that you were seated in the driver’s seat of the vehicle and had a conversation with you and asked you to leave the vehicle. You refused to comply with their request. Police then took off your seatbelt and attempted to drag you from the vehicle. You attempted to lock the doors and start the vehicle. Eventually, they managed to drag you from the vehicle after striking your forearms with a baton and deploying OC foam.
30 You continued to resist arrest, as you were being dragged along the ground, and it was only when a member of the Police Dog Squad and his canine arrived that you finally surrendered (related summary offence, Charge 9, resist emergency worker).
31 You were then taken to Melton Police Station, and a “no comment” Record of Interview was made. You have been remanded in custody since that time.
32 A committal hearing was conducted on 16 January 2018, during which the Belinda Scott was cross-examined, as well as Ann Varga and the informant.
33 The matter was eventually settled on 30 July 2018 following which the trial was vacated.
34 Mr Ellis, I consider that this is serious offending. It was a confrontational aggravated burglary where you invaded the home and inflicted injury upon Ms Scott. The Court must condemn your behaviour. It was out of all proportion to any perceived wrong. The fact that the moneys were owed to you does not, in any way, justify your aggressive and hostile behaviour.
35 In sentencing you, there is a need to emphasise general deterrence and specific deterrence and to provide for the protection of the community. Your conduct must be condemned.
36 Both Belinda Scott and her partner, James Varga, were your friends at the time and this offending constitutes a serious breach of trust on your behalf. Through your actions, you have lost a friendship.
37 Your offending has had real consequences for Ms Scott. She suffered physical injuries as well as emotional reaction. She endured the physical assault for which she has sought treatment and the notes from the doctor record that she had a superficial wound on the upper part of her left forearm due to a bite, a deep wound due to a bite on left calf, a few red bite marks on the wrist, and redness of skin and mild tenderness on top of the scalp about 3 centimetres by 3 centimetres was noted. She was treated by having a tetanus injection and also provided with oral antibiotics. Blood tests were undertaken for HIV, Hepatitis C and Hepatitis B. Fortunately, she recovered well from her injuries and the blood tests came back with normal serology.
38 No doubt, as a consequence of your aggressive and hostile behaviour towards Ms Scott, the ongoing impact will continue.
39 You are currently being held in protection whilst in prison and that is because you identify as a gay and in the past there were difficulties when you were held in custody.
40 It is the case that you were assaulted due to your sexuality on the earlier occasion.
41 You have utilised your time well in custody. At the sentencing conversation, you said that you were working in the factory assembling nuts and bolts, as well as cleaning some furniture for “Harry the Hirer”.
42 You have undertaken courses, including a Cope Well course, to help you to develop coping skills, adjusting to prison and life generally, an OH&S course and a commercial cleaning course.
43 Ms Brennan, on your behalf, made submissions, and I accept all the matters that were put in mitigation.
44 I accept that the plea was entered at an early stage although not the earliest opportunity. There still utility in the plea because it has meant that there is no necessity for a trial to be conducted with the expense and trauma associated with that and that is important particularly in a case such as this where Ms Scott suffered greatly as consequences of your actions.
45 Through your plea you facilitated justice and sentence will be discounted accordingly.
46 I accept that the plea is also evidence of genuine remorse on your behalf. From the conversation, it is clear that you are developing insight into the triggers for your offending behaviour. You feel ashamed and embarrassed about what you did on this occasion and acknowledge your actions were an over-reaction and that you take full responsibility for your conduct and recognise that there is real need for you to focus on working through anger issues in the future.
47 You are committed to remaining free from alcohol and drugs and expressed a desire upon your release to settle and relocate in Wodonga to be with your partner, Hayden. You want to refocus on building your relationship and your life generally. You are wanting to obtain employment and expressed an interest in pursuing work in the drug and alcohol counselling area, trauma and care. You are committed to being a more productive member of your community. You understand and acknowledge the impact of violence on your community and the community generally, and you are committed to working hard to deal with your anger in the future. You acknowledge that your actions could have had more catastrophic consequences and that there is a real urgent need for you to change. You expressed a desire to want to be a good role model for your nieces and nephews in the future.
48 I have regard to your personal history and background. Your background is one of great difficulties.
49 Your mother, Bella Nora, died in 1998, when you were only 20. She had alcohol-related illnesses and was not able to properly care for you as a young child. You were placed with your paternal grandmother between the ages of 7 and 17 who cared for you. You saw your mother in the holidays and you suffered physical assaults at times by her male partners. Your father has never really played any role in your life. You had two siblings, both brothers, an older brother, Leo, who has six children with whom you do not have any relationship. Tragically, your younger brother, Daniel, died in a car accident nine years ago and both his death and the death of your mother have affected you deeply.
50 You were the victim of childhood sexual abuse at the hands of a male teacher during your primary school years. No formal complaint was made about this and you were moved to a different school and had counselling.
51 You completed Year 10 and then began, but did not complete, a dental nurse traineeship. School was very difficult for you. You were bullied because you were different. You came out at about aged 16 which your family had a mixed reaction to meaning that you felt very isolated within your family.
52 Notwithstanding all these difficulties, you were able to work and have an excellent work history in hospitality and catering; working as a room attendant, working in reception and customer service for organisations such as Australia Post, Medicare and the Victorian Aboriginal Health Service. It was noted by Auntie Jackie in the sentencing conversation that you were highly regarded and well respected by the community through the work that you did before at the Aboriginal Health Service.
53 You have had a long and problematic history of abuse of alcohol, first beginning when you were a teenager.
54 You have been diagnosed with Bipolar Mood Disorder about six years ago for which you are treated with medication, Paroxetine and Lamotrigine and your mental health is said to be stable.
55 You have been together with Hayden Elliott for approximately seven years and are both committed to that relationship. In the sentencing conversation, he spoke about you developing insight into the triggers for your violence and commented that prison had been a real reality check for you.
56 He described how both he and his three sons genuinely care about you and look forward to you being released back into the community. He said that there have been periods in the past where you have been successful in not drinking and you have been able to maintain abstinence for about three years. He genuinely believes that you are motivated to change to make a better contribution to your community.
57 Having regard to your expressed wishes and post-offence conduct, I consider that you are developing an understanding of, and insight into, the connection between your alcohol issues and the offending.
58 You acknowledge, in particular, that you do have anger issues and that there is a need for you to have support in order to be able to better manage your anger in the future.
59 To offer you the best hope for the future you need to come to terms with your traumatic past and take steps to address your underlying offending behaviour.
60 I have taken into account your background circumstances of emotional hardship, abandonment, deprivation and disadvantage and that is relevant in many ways. They in part explain and are causative of your offending behaviour, as well it does mean that the necessity for general and specific deterrence and denunciation have to be moderated to a degree but it is also important that there be a focus in the future on the need for your rehabilitation in order for you to address those issues and also to offer the best protection for the community in the future.
61 I have had regard to the principles set out in Bugmy v R,[2] where the High Court plurality, held that the effects of a background of significant deprivation do not diminish over time even with further serious offending and are to be given full weight as factors for consideration in sentencing. Your problematic background has contributed to your inability to manage your anger and means that therefore in the past you have responded with violence in situations of great stress.
[2](2013) 302 ALR 112
62 I have had regard to the fact that you have been diagnosed with Bipolar Mood Disorder. Ms Brennan did not submit that the Verdins principles applied as far as moral culpability was concerned but nonetheless, I have taken it into account in a general sense.
63 I have had regard to what Ms Carla Lechner, the consultant psychologist, has set out in her report of 31 October 2018. She confirms the diagnosis of stimulant and alcohol use disorder (in remission in a controlled environment) and makes reference to the previous diagnosis of Bipolar Mood Disorder and Borderline Personality Disorder.
64 She states that you currently show symptoms of depression at a clinical level with a score in the “extreme“ range on the Beck Depression Inventory. She considered that you are best described as being a “moderate/high” risk of violent re-offending but this risk could be reduced substantially with continued abstinence from drugs and alcohol and counselling to manage mood and anger management.
65 You expressed to her a strong desire to have therapeutic support.
66 Her report will be made available to the Correctional authorities to encourage them to take up her suggestions so as to best optimise your rehabilitation prospects.
67 Through your words and your conduct I accept that your expressions of concern and remorse are genuine and that you really do have insight and victim empathy. In custody, you have started on the road towards making significant changes in your life, but nonetheless upon your eventual release, you still need very real supports to assist you to make good your expression of wanting to change your life.
68 As was emphasised by the Elders in the plea hearing, the next and most important step is for you to translate those expressions of wanting to change into real conduct. Your ultimate rehabilitation is an important factor for both you, your partner, Hayden, his three sons, your extended family members, your indigenous community and the broader community generally.
69 That will offer the best protection for the community for the future and will reduce your risk of violent re-offending. Overall, I consider, with good supports that you do have reasonable prospects for rehabilitation.
70 However, having regard to the objective gravity of the offending, I consider that the only appropriate disposition is a term of imprisonment to be imposed.
71 Ms Brennan sought a substantial period of parole to enable your assisted support back into the community.
72 Mr Henderson, on behalf of the Crown, acknowledged that a head sentence and non-parole period was appropriate. His submissions highlighted the fact that this was a home invasion where you assaulted the complainant in the manner described. Notwithstanding, it was relatively brief in nature, the victim would have been extremely frightened by your aggressive behaviour. He submitted your prospects for rehabilitation are guarded, depending on you maintaining abstinence and he highlighted the fact that an aggravating feature of your behaviour was that you were in contravention of a community correction order that was imposed for similar offending. All of those submissions are appropriate.
73 In sentencing you I must impose just punishment and I have had regard to the principles of totality.
74 I will now move to imposing the formal Court order so I will ask that you do stand now.
75 Charge 1, aggravated burglary, you will be convicted and sentenced to 2 years’ 6 months imprisonment. That is the base sentence.
76 Charge 2, intentionally cause injury, you are convicted and sentenced to 18 months’ imprisonment.
77 Charge 3, make threat to kill, you are convicted and sentenced to 6 months’ imprisonment.
78 I make the following orders for cumulation. I direct that 6 months of the sentence imposed on Charge 2 and 3 months of the sentence imposed on Charge 3 are to be served cumulatively upon the base sentence and upon each other producing a total effective sentence of 3 years and 3 months and I fix a non-parole period of 18 months, during which you are not eligible for release on parole, and in respect to the related Summary Charge 9, resist emergency worker, you are convicted and sentenced to 1 month imprisonment which is concurrent.
79 I have fixed a non-parole period that is shorter than it would have otherwise been because of your efforts towards and prospects for rehabilitation.
80 I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of 5 years to serve 3 years.
81 I make the following declaration of pre-sentence detention. I declare that you have spent 533 days in custody by way of pre-sentence detention and declare that that be noted in the records of the Court.
82 I do not believe there are any ancillary orders sought.
83 MR HENDERSON: No.
84 HER HONOUR: No. So that concludes that. All right. So, Ms Brennan, did you want to have an opportunity to speak with your client here before he is taken down the cells or are you - - -
85 MS BRENNAN: That is all right. I will - - -
86 HER HONOUR: You will go down.
87 MS BRENNAN: Yes.
88 HER HONOUR: All right.
89 MS BRENNAN: Thank you.
90 HER HONOUR: Very well. Thank you. All right. We can adjourn.
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