Director of Public Prosecutions v Elmer
[2013] VCC 1139
•17 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01118
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK ELMER (also known as MARK DOKTOR) |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 May 2013 | |
DATE OF SENTENCE: | 17 July 2013 | |
CASE MAY BE CITED AS: | DPP v Elmer | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1139 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence imposed after jury trial – one count intentionally causing serious injury – accused assaulted his defacto partner.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Perry | Office of Public Prosecutions |
| For the Accused | Mr M. McGrath | Emma Turnbull & Associates |
HER HONOUR:
Introduction
1 You have been found guilty by a jury of one charge of intentionally causing serious injury to KH on 1 November 2011 at Beenak in the State of Victoria. The maximum penalty for this offence is 20 years' imprisonment.
2 You were 42 years of age when you violently assaulted the complainant, known to you since you attended school together and with whom you had been in a relationship for approximately two years.
The circumstances of the offending
3 Shortly prior to the commission of this offence you and the complainant were evicted from your shared rental accommodation. You were homeless. Accompanied by two dogs, you set up camp at the Kurth Kiln camping ground. Among other things, this camp comprised two tents, one for sleeping and the other for storage.
4 On 1 November 2011, you both went to the Mt Olinda Hotel to watch the Melbourne Cup race. Despite, during the course of the afternoon, consuming alcohol, neither you nor the complainant were drunk.
5 At approximately 8:30 pm, after returning to the campsite, you entered the sleeping tent. The complainant apparently sat at a picnic table. Shortly afterwards, in response to a query from the complainant about whether you would collect firewood, you informed her that you were going to "kick the shit out of" her, you emerged from the tent, pushed her from the bench on which she was seated and subjected her to a sustained and brutal assault. Despite her injuries, the complainant fled into the bush where, she hid until the next morning, too terrified to emerge for fear you would return.
6 Essentially, the assault involved:
· whilst wearing boots, kicking the complainant to the chest, stomach, breasts, top and back of her head and to her back and legs;
· yelling "do I have your attention yet?", as you bent the fingers of her right hand back;
· the use of weapons such as plates and bowls and short off cuts of wood which were thrown at the complainant, the latter striking her mostly to the head;
· sitting on the complainant with her arms pinned by your knees and repeatedly striking the side of her face with your hands;
· on four or five occasions pulling the complainant up backwards by her ponytail, whilst standing on her lower back.
7 In her evidence at trial, the complainant said that during the assault, you told her you no longer want to be with her, you did not want to live in the bush and you blamed her for not finding somewhere for you both to live.
8 As I have already said, the complainant fled and hid in the bush for the night, even after she heard you drive off in her vehicle.
9 The following morning, after she emerged from the bush and sought help from other campers in the area, the complainant was driven to the Maroondah Base Hospital. At trial, aided by photographs obtained after the complainant arrived at the hospital, Dr Knight, the Emergency Department Registrar, described the complainant's injuries and her condition on presentation. In his words her condition was "quite bad". He reported:
· significant swelling of her face and eyes, such that she was unable to open both eyes without assistance;
· bruising on her eyelids and over her chest, particularly to the breast area;
· an approximate 6cm cut at the junction of her hairline and forehead, which required stitches with blood covering her face and a further and lesser cut to the scalp at the back of the complainant's head;
· swelling and tenderness in both hands;
· areas of bruising and discolouration on the complainant's forearm and wrist;
· tenderness over the complainant's lower back; and
· acute fractures of the right L2, L3 and L4 transverse processes, her lower back.
10 Apparently, the Maroondah Base Hospital did not have the capacity to treat the complainant's spinal injury. Dr Knight said that on the same day, after receiving advice from a specialist in spinal injury at the Austin Hospital, he arranged for the complainant to be transferred to the trauma centre at the Alfred Hospital for treatment by its specialist team.
11 As a consequence of her injuries, the complainant was hospitalised for some 2 to 3 days. During the trial, she told the jury that she still attended medical checkups, she continued to have physiotherapy treatment for her back injury on a weekly basis and she attended a counsellor or psychologist for counselling, also on a weekly basis.
12 At trial, the jury clearly accepted that in combination, the complainant’s injuries, which included the fractures sustained at three levels of her lower back, were serious. Obviously, some spinal injuries may call for surgical intervention whilst others, as in this case, are treated by more conservative means.
13 At the plea hearing, no evidence was available from any treating health professional to explain what the long-term consequences were, if any, of the physical and psychological injuries inflicted by you on the complainant.
14 The complainant did, however, submit a victim impact statement declared by her on 13 May 2013. At her request, this was not read in open Court.
15 Among other things, the victim impact statement confirmed that the complainant continued to suffer from injury-related back pain, that she attended for ongoing treatment of this back injury and that she was troubled by some residual scarring to her head. Moreover, in my view, the content of the complainant's statement, in which she articulated in some detail the psychological impact of this crime on her, indicated that she remained deeply traumatised by the mental and physical trauma to which she was subjected.
16 However, notwithstanding the matters to which the complainant referred in her victim impact statement, the evidence did not indicate whether the consequences of her injuries were permanent. Nevertheless, for the purpose of assessing the gravity of this offence, I was satisfied that, some 18 months after the assault, the complainant remained significantly traumatised by the violence to which you subjected her and she required ongoing treatment for her psychological injury and for the consequences significant injury to her lower back .
Personal Circumstances
17 Your personal circumstances were summarised mainly through your counsel’s oral submissions and in the written chronology tendered on your behalf.
18 I was told that you are an only child, who has had no contact with your natural father. Apparently, you were raised by your maternal grandmother until you had reached school age, because your mother suffered from mental illness and had difficulties in caring for you.
19 For reasons which were not made clear during the hearing of your plea in mitigation, from school age you returned to your mother’s care. However, you have reported that during this period your mother abused drugs and alcohol and she formed a number of abusive relationships with male partners. By your account, these men subjected you to physical and psychological abuse, which was additional to the physical corporal punishment you claim your mother inflicted.
20 In about 1984, you completed Year 9 at Croydon High School, after which you appear to have established a significant history with Youth Justice. For instance, I was told that, in 1985, you burgled a milk bar and, having refused to return to your mother's home, you were sentenced to youth detention at Turana. After a short period in detention, you entered supported government accommodation for teenagers and found work in a kitchen and as a process worker at a number of factories.
21 There followed one year of study at Boronia Technical School before you entered Malmsbury and served eight months of a 12 month sentence for theft of motor vehicles.
22 From 1987 when you returned to live with your mother, you were working and you commenced a spray painting apprenticeship, so I was told.
23 You also have an extensive adult criminal history involving offences committed both in Victoria and South Australia from the late 1980s.
24 There are convictions relating to traffic, dishonesty, drug, assault and resist police, failure to answer bail, reckless conduct endanger serious injury, breach of an intervention order, criminal damage and recklessly causing serious injury offences.
25 In 1990, you served your first sentence in adult custody for reckless conduct, theft and criminal damage offences. There were further court appearances and periods spent in custody either in Victoria or South Australia in the 1990s and in mid-2005. This is not to deny that, as claimed, there were also periods of relative stability where you applied yourself to working as a panel beater and you report being active in upgrading your qualifications by obtaining a Trade Recognition Certificate as a boilermaker.
26 Between 1992 and 2009, you were in a relationship with a woman, during which time you helped raise two of her three children. You also fathered a daughter, who was born in 1994. However, the relationship with your partner ended after you violently assaulted her in late 2009.
27 I was told that one of your ex-partner's sons remains close to you, as does your daughter. The latter apparently visits you in prison regularly and she has supported you during your court appearances.
28 As to prior offending involving violence against another person, I note that on 15 September 2010, on one charge of recklessly causing serious injury you were convicted and sentenced to a term of six months' imprisonment, three months of which was partially suspended for an operational period of 12 months. I was told that you had first denied this assault. However subsequently, on 18 April 2010, without raising any lawful defence you pleaded guilty to having, physically assaulted and caused serious injury to a male flatmate in the presence of others.
29 It appears that the assault of your flatmate occurred some five months after the commission of a number of offences in December 2009.
30 The reckless conduct endanger serious injury, the breach of the intervention order and the criminal damage offences, for which on 17 December 2009 you were convicted and fined $500, all involved your ex-partner, whose hair had been set alight. Your explanation for this episode was that, at the time, you were playing with a cigarette lighter.
31 More importantly and more significantly, on 30 December 2009, some 13 days after the last mentioned sentence was imposed, you subjected the same woman to a protracted and vicious assault in your shared home, ostensibly triggered by her refusal to accompany you on a motorbike.
32 The circumstances of the 2009 assault, which left your ex-partner with multiple facial fractures including a left orbital floor fracture requiring corrective surgery and cuts and bruises on both arms, legs, neck, chest, back and face, were summarised in the sentencing remarks of His Honour Judge Gullaci on 19 December 2012. On that date, following a contested plea hearing, on one charge of intentionally causing serious injury, you were sentenced to a term of four years and six months' imprisonment with a three year minimum. The 578 days of pre-sentence detention declared under that sentence accounts for all but six days of any pre-sentence detention to be declared in respect to the charge before me.
33 I was told that you will be eligible for parole under this sentence on 16 May 2014, with a full release date on 15 November 2015. I will discuss the impact of the totality principle where, as in this case, the offender is already serving a sentence, shortly.
34 During the contested plea hearing, in addition to challenging the circumstances and the extent of the assault, you unsuccessfully argued that you had acted in self defence by striking this woman after she lunged at you with a knife. Notably, His Honour Judge Gullaci rejected your evidence observing, among other things, that you were evasive, unconvincing and not a witness of truth or reliability.
35 I note that psychiatric evidence tendered on your behalf during the earlier contested plea hearing, among other things, excluded personality disorder, cognitive impairment or mental disorders as factors in the 2009 assault. On that occasion, the psychiatrist recommended that you be assessed for participation in the Corrections Victoria Violence Intervention Program.
36 I was told that you have spent most of your time in custody working as a kitchen billet. I was also told that your status as a remand prisoner has so far prevented participation in any programs designed to address your violent behaviour. I must say, however, that in view of your history and evident lack of remorse, I have approached any suggestion that you are motivated to pursue this level of rehabilitation with some caution.
37 A brief chronology of the events subsequent to the 2009 assault is necessary. You were charged in respect to that assault on 18 January 2011, remanded in custody on 31 March 2011 and released on bail from 14 September 2011.
38 As we now know, within six weeks of your release on bail for the 2009 assault and, having commenced living with the complainant, you also subjected her to a protracted and vicious assault, evidently triggered by your dissatisfaction with your living arrangements. On this occasion you sought to shift blame for the complainant’s injuries to her brother and you alleged that the complainant had falsified her complaint both to protect this brother and because she had been upset by you quitting the campsite with her two dogs.
39 In this case, section 16(3C) of the Sentencing Act 1991 acts to modify the presumption of concurrency between the uncompleted sentence and the sentence I impose today. This means that, unless otherwise directed by me, any term of imprisonment imposed today for the commission of this offence while on bail must be served cumulatively on your uncompleted sentence.
40 In formulating your sentence, however, I have applied the principle of totality to avoid any disproportionate impact of this sentence were you to be required to serve successive and cumulative sentences. I have attempted to achieve this by moderating the overall sentence including the non-parole period and by only partially cumulating the sentence on the uncompleted sentence.
41 As submitted by the prosecution, in this case there can be no suggestion of remorse. This and the fact that you did not, as you had on two earlier occasions, entered a plea of guilty, neither mitigates nor aggravates the sentence imposed.
42 I have, nonetheless, made allowance for matters favourable to you, such as your reportedly dysfunctional upbringing, the evidence of some intervals of relative productivity and stability in the community and the ongoing support of particularly your daughter. However, absent significant interventions to address the escalation in violent offending in a domestic setting, I consider your prospects of rehabilitation to be poor.
Sentencing Principles
43 As to sentencing, your history and the circumstances in which the offending occurred, call for a sentence that denounces the violence you inflicted on the complainant and sends an unequivocal message to others that violence against a domestic partner will not be tolerated. You too must be deterred from resorting to physical violence and intimidation as an expression of your dissatisfaction with domestic arrangements, conduct which, incidentally, marks you as a bully and a coward.
44 To summarise, the aggravating features of this assault to which I have had regard, included:
· the means by which you inflicted serious injury, namely through multiple blows, kicking, standing on the complainant and using a weapon;
· the protracted nature of the assault;
· your callous disregard for the well-being of your partner who was left injured and unassisted in the bush;
· the commission of this offence while on bail;
· a history involving significant violent offending. Whilst for the purpose of the current offence, the 2009 assault does not amount to a prior conviction, its commission nonetheless rendered more serious the further conduct in intentionally causing serious injury to a different partner in November 2011.
45 These matters, your evident disregard for the law in the past, the fact that other dispositions imposed by Courts have not deterred re-offending and, since at least 2009, your evident propensity to violent outbursts resulting in serious injury, particularly in a domestic setting and to the extent to which these are known, the consequences of the injury suffered by the complainant, all contributed to my assessment of this as a serious example of this type of offending.
46 The prosecution also sought to characterise your conduct on this occasion as a serious example of this type of offence and, subject to the application of the principle of totality to the overall sentence, submitted that the offending warranted the imposition of a head sentence of between seven and eight years’ imprisonment with a minimum of between five and six years’ imprisonment. In making this submission, the prosecution did not refer to any specific case or cases by way of comparison.
47 In determining the appropriate sentence in respect to the offence of intentionally causing serious injury, among other things, I am required to have regard to current sentencing practices.
48 On your behalf it was conceded that the reoffending in 2011 called for an immediate custodial sentence of some years' duration, although it was submitted that the sentencing range to which the prosecution referred exceeded current sentencing practices as revealed by the Sentencing Snapshot covering the period 2006 to 2012 and by the Overview of Intentionally Cause Serious Injury cases for the same period, published in the Victorian Sentencing Manual. This manual also contains a number of case summaries for intentionally causing serious injury cases decided in 2013.
49 As the statistical analysis demonstrates, during the six-year period mentioned, 596 people were sentenced for intentionally causing serious injury.
50 For the principal sentence, imprisonment terms ranging from 5 days to 15 years. The median sentence of imprisonment was 4 years and the most common length of imprisonment imposed was 3 years to less than 4 years' imprisonment.
51 Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period was two years, 8 months and 15 days and (after adjusting for appeals, the median non-parole period was slightly reduced to two years and 8 months) and the most common non-parole period imposed was two years to less than three years' imprisonment.
52 Relying on the statistical analysis alone, the sentencing range to which the prosecution referred is well above, for example, the median sentence imposed during the period over which the Snapshot was obtained.
53 The Snapshot, however, does not allow for any proper comparison of the particular circumstances by reference to which each sentence was formulated. The Overview and the recent case summaries, whilst not detailed are somewhat more informative.
54 For instance, the Overview of individual sentences for intentionally causing serious injury shows that the highest of the sentences imposed, namely 15 years’ imprisonment, involved a custodial assault by punching and head stomping, which caused severe brain injury. This injury was said to have effectively ruined the victim's life.[1] In that case, the male offender reportedly had serious prior offences and he had pleaded not guilty.
[1]Ali v The Queen [2010] VSCA 182
55 Generally speaking, the Overview also shows that, in the cases where individual head sentences of six years or above were imposed, more often than not, the victim had suffered multiple and severe injuries which, in some instances, had led to significant and permanent consequences. However, with the exception of two cases, in all of these cases the offender had benefited from having pleaded guilty. Notably, when sentenced by His Honour Judge Gullaci in December 2012, you also received a discount for your plea of guilty.
56 Clearly, your sentence today must be formulated by reference to the particular circumstances of your case, which must also make allowance for your plea of not guilty and the commission of this offence some weeks after you had been released on bail for similar acts of violence against another domestic partner. In my view, even after adjustment for the principle of totality your sentence today justifies a head sentence at the lower end of the range submitted by the prosecution.
57 As you are currently serving a non-parole period in respect to the earlier sentence, I am required by section 14 of the Sentencing Act 1991 to fix a new single non-parole period in respect of all of the sentences you are to serve or to complete. You have already served more than two years of the earlier imposed non-parole sentence. The new single non-parole period has been formulated to take into account the combination of the sentence you are required to complete and as the sentence I will impose.
Sentence
58 Please stand, Mr Doktor.
59 On one charge of intentionally causing serious injury you are convicted and sentenced to seven years’ imprisonment.
60 I direct that two years and six months of this sentence be served cumulatively on the uncompleted sentence.
61 I fix a new single non-parole period of two years and eight months’ imprisonment. I declare that the new single non-parole period starts today.
62 Pursuant to s18(4) of the Sentencing Act I declare that the period of six days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the court.
63 A disposal order was sought by the prosecution at the plea hearing and I believe that was not opposed and I have signed that order today.
64 Counsel, are there any other matters I need to clarify, explain or that I have overlooked?
65 COUNSEL: No, Your Honour.
66 HER HONOUR: All right, thank you for your assistance.
67 Can you please remove Mr Doktor.
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