Director of Public Prosecutions v Fallon
[2018] VCC 2094
•29 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-00989
Indictment No. H12424321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL FALLON |
‑‑‑
| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 October 2018 |
| DATE OF SENTENCE: | 29 November 2018 |
| CASE MAY BE CITED AS: | DPP v Fallon |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2094 |
REASONS FOR SENTENCE
‑‑‑Subject: CRIMINAL LAW
Catchwords: Sentence – intentionally causing injury – false imprisonment - plea
of guilty
Sentence: Total effective sentence of 4 years 6 months’ imprisonment with a
non-parole period of 2 years 10 months
6AAA declaration: 6 years’ imprisonment with a non-parole period
of 4 years‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Cordy (Plea) Ms C Jago (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms S Poulter (Plea) Ms S Tatas (Sentence) | Tyler, Tipping & Woods |
1HER HONOUR: Daniel Fallon, you have pleaded guilty before me to three charges of intentionally causing injury, one charge of false imprisonment, and one charge of stalking. Exhibit A on the plea in mitigation was a summary of prosecution opening outlining in detail the facts and circumstances which led to your offending. I incorporate that summary as part of these reasons. However, I will briefly outline the offences.
2The complainant in this matter is Lisa Crawford[1]. At the time of your offending against her she was 32 years of age. You were at the time 34 years of age and you are now 36 years of age. You were in a relationship with Ms Crawford for approximately 12 months, including a period between March and August 2017 in which you lived together. Ms Crawford left the relationship in August 2017 due to your controlling and jealous behaviour. On Christmas Eve 2016, you and Ms Crawford were together in Narre Warren.
[1] Lisa Crawford is a pseudonym
3Around this time you were both occasional users of the drug methamphetamine. On this evening, you accused Ms Crawford of getting someone to provide her with drugs during the night. You became agitated and verbally abusive to her, calling her a ‘junky whore’ and ‘oxygen thief’. You hit her on the side of the head about 20 or 30 times and punched her in the breast. As a result of this attack, Ms Crawford received broken teeth, a cracked rib and bruising to the eyes and the bridge of her nose. This relates to Charge 1 on the Indictment, intentionally causing injury.
4In May of 2017, you and Ms Crawford were travelling on the Princes Highway. Ms Crawford was driving and you were her passenger. You started arguing with her and yelled at her. You hit her to the left side of her face near her cheek. As a result of the assault she received a lump and her left eye came up black and bruised. This relates to Charge 3 on the Indictment, intentionally causing injury.
5In early August 2017 your relationship concluded. On 21 August 2017, Ms Crawford contacted you to arrange the return of some of her belongings that she had left at your house. She attended there at about 9:00pm. A discussion ensued about whether or not she had been seeing anyone since you two had separated. You accused her of lying to you and you then punched her to the head several times using closed fists. One of Ms Crawford's front teeth was broken during this assault. She was knocked to the floor and you pinned her down with your knee and continued to strike her to the back of her head, arms and shoulder blades. You then placed your hands on her throat. This conduct pertains to Charge 4 on the Indictment, intentionally cause injury.
6You then kept Ms Crawford at the house for around six hours, and during that period you followed her everywhere and blocked any attempts she made to escape the house. You took her phone and threw it down the hallway to prevent her from calling the police. This conduct constitutes Charge 5 on the Indictment, false imprisonment. During the ordeal Ms Crawford says she felt petrified.
7You allowed her to leave the next morning. Ms Crawford then drove to her mother's house, and thereafter her and her mother attended the Narre Warren police station to make a complaint. Between 22 and 28 August 2017 you contacted or attempted to contact Ms Crawford hundreds of times via calls, missed calls, text and face messages. You used your own phone and your father's phone to make these calls and send these messages. When you could not contact Ms Crawford, you then sent messages to Ms Crawford's mother's phone. Many of the messages were derogatory. Some threatened to release intimate photos of Ms Crawford and others threatened to damage her property. This conduct relates to Charge 6 on the Indictment, stalking.
8You were arrested on 29 August 2017. In your record of interview you denied the false imprisonment and assault charges. You maintained an aggressive attitude towards the complainant, accusing her of being a liar and tricking her into dating you. You explained the injuries to her throat as sexual in nature, saying she likes getting choked a little bit. You admitted the conduct constituted by the stalking.
9You were then remanded into custody and have remained so ever since. You indicated your intention to plead guilty to the charges on 9 May 2018, being the date of the committal hearing. No witnesses were cross-examined at the committal. I take account of the fact that it is a plea of guilty at an early stage of proceedings. I also accept that it is a plea of guilty that reflects acknowledgement of responsibility for your offending and a desire to facilitate the administration of justice.
10I also accept that it is a plea of guilty consistent with some remorse and contrition. In this vein, I refer to your comments to Carla Lechner, clinical psychologist, in which you acknowledged that you had lost it while drug affected and engaged in unacceptable behaviour.
11Your offending has had an extreme impact upon the victim. Exhibit C on the plea was Ms Crawford's victim impact statement. As a result of your offending against her, she has been too scared to leave home. Due to the assaults to her facial region and you breaking her front teeth, her self-confidence has plummeted. Her sleep has been affected and she wakes having flashbacks as to what occurred, particularly on the night of 21 August. As a consequence of your offending, she has difficulty talking to men because she is worried they might turn out like you. She has also suffered from depression, put on weight and been reluctant to leave the house.
12Before me you admitted your prior criminal history. There are a number of matters relevant for the sentencing exercise today. In particular, most recently on 10 July 2015 at the Latrobe Valley Magistrates' Court you received a sentence of imprisonment of one year and six months with a non-parole period of nine months, for a number of offences which included unlawful assault, intentionally cause injury, and contravention of family violence orders. There the victim was Paula Robertson[2], the mother of your only child.
[2] Paula Robertson is a pseudonym
13On 18 October 2012, following a successful appeal to the Latrobe Valley County Court, you received a suspended sentence of imprisonment in relation to offences including recklessly cause injury, criminal damage, and threat to inflict serious injury. Ms Robertson was also the victim in relation to this 2012 matter. Furthermore, you previously served a period of three years' imprisonment for armed robbery in Queensland. You were released from that sentence on 5 March 2015 and extradited to Victoria, arriving in custody on 12 March of that same year. You served the full term of the sentence imposed in July of 2015, and you were released from prison on the 24 June 2016.
14Not long after your release, you met the complainant, having been introduced to her by your aunt via Facebook. As already observed, you acknowledged your role in this serious offending to clinical psychologist, Carla Lechner. You told her, "It's all true. I hurt her. I hit her. I asked her to tell me the truth and she denied it. I was high as a kite when assaulting her. I hadn't slept for two weeks. I regret doing it all. I lost it. I think I need help".
15Ms Lechner assessed your risk of violent behaviour, taking into account historical factors such as previous matters, substance abuse issues and clinical factors such as insight, impulsivity and mental illness, and protective factors such as support networks and exposure to stress. On this scale she opined that you present as a high to moderate risk of violent reoffending. It is clear, therefore, in your case that the sentencing principle of specific deterrence has a role to play.
16In Ms Lechner's view you fulfil the criteria of a diagnosis of major depressive disorder and stimulant use disorder. Both problems are chronic and longstanding. She suspects that you have been depressed for years, but you mask your symptoms with illicit drug use. You told her that you were previously prescribed the antidepressant, Pristiq, but you stopped taking it in 2016. You are currently prescribed 400 milligrams of Seroquel at night. You have a long history of illicit drug use. You began smoking marijuana at the age of 12 years and stopped when you were around 30 years of age. You used speed at the age of 14, initially starting with Ritalin.
17You switched to ice at age 26 and were using intravenously. You have tried heroin twice and LSD as a teenager. During your relationship with Ms Crawford, you were using 0.5 to 1 gram of ice per day. You told Ms Lechner that you have suffered drug induced psychosis in the past that resulted in an attendance at either a Ballarat or Bendigo hospital. There was no evidence put before me in support of that contention. According to Ms Lechner, your full scale IQ is estimated to be at 81, which places you in the low average to borderline range.
18Whilst in prison in Queensland you suffered a head injury which led you to being hospitalised. You told her that your head was split open and that you could not remember how the injury was sustained. She was concerned that you may be suffering from an acquired brain injury and recommended a neuropsychological evaluation. You were then assessed by Laura Scott, clinical neuropsychologist, to determine the nature and impact of any cognitive impairments, and in particular whether or not you do suffer from an acquired brain injury.
19In Ms Scott's view your cognitive profile is characterised by difficulty with memory tasks. However, she concluded that you do not suffer from a traumatic brain injury. While she noted that you present with a 15 year history of daily amphetamine and methamphetamine use, your current profile is not consistent with a substance related acquired brain injury. She also observed that if you were to relapse into daily methamphetamine use, your likelihood of reoffending would also increase.
20In Ms Scott's view your cognitive impairments could negatively impact your ability to cope with the prison environment. She said that you present with an elevated level of psychological distress. In her view a term of imprisonment could result in a worsening of your mental health. I take into account these matters when determining sentence. Your defence counsel argued that an appropriate sentence in your case was a combination sentence, taking into account the period you have already served as pre-sentence detention.
21In other words she urged upon me your immediate release pursuant to a community correction order. In support of that contention she relied on the following factors: whilst incarcerated you have engaged in rehabilitative programs; a period of 14 months, which you had served as at the date of the plea in mitigation, provides for just punishment, general deterrence and specific deterrence; the imposition of a community correction order would further your rehabilitative process, providing supervision and treatment for you upon release; and your rehabilitation, in particular one mandated to address your longstanding drug use, would be in the best interests of the community.
22As indicated to your counsel in the course of the plea in mitigation, my view is that these matters are much too serious to warrant a combination disposition. The matters that your counsel raised relating to the question of your rehabilitation can, in my view, be addressed by the imposition of a parole period.
23Domestic violence is a scourge in our community. This offending relates to more than one incident with you and Ms Crawford. The culmination of your behaviour, particularly on 21 August, involves consistent and sustained offending against her in circumstances where she was clearly petrified and fearful for her safety.
24Furthermore, your history reveals a propensity towards resorting to violence in the context of domestic relationships. While I do accept that you have expressed remorse more recently for your behaviour towards Ms Crawford, your initial response was to engage in victim blaming, which betrays a disturbing lack of insight into your conduct.
25I turn now to your personal circumstances. You are now aged 36 years of age, being one of five children born to Lydia Fallon. You do not know the identity of your father. Somewhat unconventionally, you were raised by your stepfather as your mother was absent from your life until you were 11 years old. You have a number of half-siblings. You apparently have a good relationship with your mother, stepfather and siblings. You have a ten year old son. Prior to his birth you had a baby girl who died of a congenial abnormality at 24 weeks' gestation. Understandably, this had a profound impact upon you. As you told Carla Lechner, for two years subsequent to the death you did not want to leave the house.
26You grew up on Cranbourne attending Cranbourne West Primary School. You were of average learning ability, with no social or behavioural problems in the early years of your educational life. You were expelled halfway through Year 8. When you turned 15 years of age you gained employment. Upon leaving school you completed a cabinet marking apprenticeship. You worked with a number of different companies but moved into forklift driving and then truck driving to earn more money. Since leaving school I was told you have had employment for about 80 per cent of the time.
27The basic purposes for which a court may impose a sentence are punishment, general deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
28Please stand, Mr Fallon. In relation to Charge 1 on the Indictment, being a charge of intentionally cause injury, I sentence you to a period of imprisonment of twelve (12) months.
29In relation to Charge 3 on the Indictment, which is a charge of intentionally cause injury, I sentence you to a period of imprisonment of eighteen (18) months.
30In relation to Charges 4 and 5 on the Indictment, being charges of intentionally cause injury and false imprisonment, I sentence you to an aggregate sentence of imprisonment of three (3) years. Given the interrelated nature of the offending here, I have determined it appropriate to impose an aggregate sentence upon you.
31In relation to Charge 6 on the Indictment, being a charge of stalking, I sentence you to a period of imprisonment of six (6) months.
32Bearing in mind the application of the principle of totality, I make the following orders for cumulation. I order that six (6) months of the sentence imposed upon Charge 1 be served cumulatively upon the sentence imposed on Charges 4 and 5; nine (9) months of the sentence imposed upon Charge 3 be served cumulatively upon the sentence imposed upon Charges 4 and 5, and three (3) months of the sentence imposed upon Charge 6 be served cumulatively upon the sentence imposed upon Charges 4 and 5. All other sentences are to be served concurrently with one another.
33That makes for a total effective sentence of four (4) years and six (6) months. I declare a period of two (2) years and ten (10) months before you become eligible for parole.
34Pursuant to section 18(4) of the Sentencing Act 1991 (Vic) I declare that you have spent a total of 457 days in custody and order that such declaration be noted in the records of the court. Pursuant to section 6AAA of the Sentencing Act, were it not for your plea of guilty I would have imposed a sentence of imprisonment of six (6) years, with a non-parole period of four (4) years. I grant the application for a forensic procedure pursuant to section 464ZF(2) of the Crimes Act 1958 (Vic).
35Yes, you may be seated, Mr Fallon. Yes, any other orders?
36MS JAGO: No, Your Honour.
37HER HONOUR: Yes. All right. Thank you. We'll adjourn now until 10.30.
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