Director of Public Prosecutions v Farrell (a pseudonym)

[2019] VCC 297

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS FARRELL (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 February 2019
CASE MAY BE CITED AS:	DPP v Farrell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 297

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 K. Doyle
For the Accused	Mr D. Gibson

HER HONOUR:

1Marcus Farrell[1], you have pleaded guilty to one charge of negligently causing serious injury and one charge of common law assault.  I will begin with the charge of negligently causing serious injury, which is laid pursuant to Indictment No.F13867511B.1.  The maximum penalty for this offence is ten years' imprisonment.  The circumstances underlying this offending is as follows.  The victim in this matter was a baby, Samuel Farrell[2], who was born in November 2013 and who was nine months old at the time of this offending. 

[1] A pseudonym name

[2] A pseudonym name

2His mother was your former partner, Lisa Galloway[3], with whom you had been in a relationship with on and off since you were about 13 or 14 years old.  You were not together during Ms Galloway's pregnancy but once Samuel was born in November 2013 you resumed the relationship and in early 2014 the two of you moved in with your mother, Joan Horne[4].

[3] A pseudonym name

[4] A pseudonym name

3After Samuel's birth Lisa took the primary responsibility of caring for him but in July 2014 she began a nursing course at a TAFE with classes on Mondays, Tuesdays and Wednesdays from 9.30 until 4.30 pm.  While attending the course Samuel was left in your care, you looking after him with the help of your mother and sisters who also resided at the house, one of them also having her own child.

4On 3 August 2014 you, Ms Galloway and Samuel moved into your own rental property in Melton, which is the first time the three of you had lived on your own.  Both your mother and Ms Galloway had some concerns about your ability to care for Samuel when Ms Galloway was not present, as although a normal child, Samuel cried a lot.  The day before the offending Ms Galloway dropped Samuel at her friend Hannah Best's[5] place for the day, Ms Best being Samuel's godmother who sometimes looked after him, as this was the day of the move.  Samuel was apparently quite unsettled that day, Ms Galloway picking him up at about 6 pm.

[5] A pseudonym name

5The next day when Ms Galloway left for TAFE was the first occasion that you had been left completely alone to look after Samuel.  On her mid-morning break she called to see how things are going, you saying that Samuel would not stop crying and that you had tried everything and then you sent her a text message saying, "Samuel's crying.  I can't handle it".  She texted you back, saying she would send Hannah around.  She rang Ms Best to ask her to help you and Ms Best arrived at your home at about 1 to 1.30 pm, at which time she found Samuel to be very emotional and unable to sleep, and you flustered and overwhelmed.  You told Ms Best that Samuel would not stop crying and that he was just being a sook.  Eventually Ms Best calmed Samuel down and you held him while she cleaned up.

6Later that afternoon Ms Best took Samuel to meet Ms Galloway at the bus stop.  That evening there was a small gathering at your home during which Samuel was unsettled and crying.  Ms Galloway gave him a bath and some Panadol, sleeping next to him on his mattress that she had brought into the main bedroom.  He woke at 4 am.  She gave him a bottle and he went back to sleep.

7The next day, which was the day of the offending, 5 August 2014, Ms Galloway got up at 6 am to get ready for TAFE, at which time Samuel was still asleep.  Before she left at around 6.55 am Ms Galloway picked Samuel up off the mattress and passed him to you and then left, taking the bus to TAFE where she arrived at about 8.50 am.  It is the prosecution case that at about 9 am that morning you assaulted Samuel by shaking him.  You then placed him in his pram and called your mother and when she did not answer, called your family home, the phone being answered by one of your sister's partners, Cooper Pool[6]. You apparently sounded very distressed, told Mr Pool to get your mother and then told her that you wanted the two of them to get over there quickly.

[6] A pseudonym name

8Ms Horne  and Mr Pool rushed over to your home, you telling them either on the phone or when they arrived that you had gone to the toilet and that when you came back you noticed Samuel was crying, that he was off his mattress and was "acting weird".  They apparently had arrived at about 9:10 am and at 9.22 am Ms Best texted you to ask how Samuel was, you reading the text about 9.30 and replying, "Um not good answer".  You then called
Ms Best and asked her to go there, telling her Samuel had fallen off his bed and landed on his face, that you had gone to the toilet and heard a thud and when you got back Samuel was crying, then he stopped crying and he would not wake up after that.  Between 9.29 and 9.36 am you made a series of phone calls.  When Ms Horne  and Mr Pool arrived at your home you were on the phone and Samuel was strapped in his pusher in a deep sleep.

9At this time you had still not called an ambulance.  Ms Horne  told you to get off the phone and call an ambulance, which you did at 9.38 am.  You told Emergency Services that Samuel had fallen off the bed whilst you had gone to the toilet only for a second, on your return finding him asleep and unable to be woken.  You said that you had left Samuel on the bed, that he had obviously crawled off it and fallen on his face and knocked himself out on the "hard carpet".  You told Emergency Services there was no bleeding but that Samuel was floppy and asleep and that he had fallen off the bed before, usually just knocking his head, but this time he had fallen face first.

10Ms Best arrived at your home by taxi just before 10 am when you were still on the phone to the ambulance.  Whilst waiting for the ambulance she asked if you had called Ms Galloway and you said you had not as you were scared you would get into trouble.  Ms Best then called Ms Galloway, was unable to get through, and finally called her TAFE, leaving a message that there was an emergency.  When she finally reached Ms Galloway, Ms Best told her Samuel was going to the Royal Children's Hospital.  When paramedics arrived at about 9.50 am Samuel appeared unresponsive, with shallow breathing and was seen to have a red mottled rash and a pale skin colour.  He was still unconscious at 10 am although his condition appeared to improve.  Then his heart rate dropped and breathing decreased.  You said you did not want to travel in the ambulance.  You were told to call Ms Galloway and a MICA crew was called.  Samuel was transferred to the MICA ambulance where he was treated until meeting a helicopter which air lifted him to the Royal Children's Hospital.

11As a result of the assault Samuel suffered bilateral acute subdural haemorrhages, blood in the interhemispheric falx with a reduced conscious state, which is a significant neurological impairment, and bilateral extensive multi-layered retinal haemorrhages.  He had lost consciousness, which is a sudden neurological collapse, and these were life threatening injuries.

12The surgeons who treated Samuel observed old and new subdural blood, meaning there was an acute or chronic subdural haematoma either days or weeks old, this being some evidence of a pre-existing bleed on the brain.  However, this is not of significance on the plea.

13Subdural haemorrhages can be caused by shaking as well as trauma and other diseases, none of which affected Samuel, and the interhemispheric falx haemorrhage is "highly correlated with inflicted head trauma".  The pattern of Samuel's multiple retinal haemorrhages were, according to the medical findings, "strongly suggestive" of shaking.  There was no evidence of any bone or skeletal fracture but Samuel's sudden neurological collapse injury was indicative of a traumatic event taking place in the period just before the injuries manifested themselves.

14In the report of Dr Jennifer Smith she stated that the level of force to cause Samuel's injuries was at least a very forceful shake, well outside the handling of a normal infant.  It appears Samuel has made a full recovery from his injuries, has met developmental milestones and his last medical appointment relating to the injuries was March 2016.

15There was evidence of some previous concerning conduct by you towards Samuel who, in the period leading up to the incident, had begun crawling and pulling himself up.  Ms Galloway had seen you throw Samuel in the air and asked you not to do it because it scared her, as had her mother.  Your sister, Larissa[7], said that at times when Samuel was crying you would say, "Shut the fuck up", and she had seen you shake Samuel a little backwards and forwards to get him quiet, although never strongly enough to hurt him.  There was some prevarication by witnesses at committal.

[7] A pseudonym name

16She said about a month before the offending, however, when she was at her mother's house with you and Ms Galloway you put Samuel to bed in his bedroom at the end of the hall, when they heard a loud smacking noise.
Ms Galloway went to the bedroom, asking what you were doing hitting a child,   you responding, "He kicked me in the face when I was changing him".
Ms Galloway told you never to hit Samuel, who by then had a red mark on his leg.

17There was some post-offence conduct which the prosecution says goes to the issue of your remorse.  On 26 September 2014 in a telephone call between yourself and Ms Galloway you discussed what you had told police regarding Samuel's injuries, the investigation and the pending charges.  Ms Galloway told you she had told police she was stressing out because it was the first time you had looked after Samuel alone.  You told her she had said the wrong thing, that everything was going wrong with their statements and that Ms Galloway's account made you look like a liar.  Ms Galloway said, "The next time I talk I'll fix it up".

18The two of you also discussed what Ms Best would say, Ms Galloway saying she would tell her she had changed her statement, you later in the call saying, "Now, what you said helped make - helps mine look a bit better", and when Larissa fixes hers up I'm lookin' a bit better",  "but like I said, they can't charge us because they've got no proof.  If you keep fixing your statements then that all looks all right for me.  It pretty much backs up what I've said, then Larissa's will back up what I said".

19On 2 October 2014 Ms Galloway was to be interviewed by police and she spoke again with you at that time, at which time you said, "Stick up for me" during the police questioning.  In your interview on 25 September 2014 you had told police your sister had told you she had seen Ms Galloway shake Samuel on a previous occasion.  Police told you your sister had provided a statement that she had seen you shaking Samuel, not Ms Galloway, and again during a phone call on 26 September you said, "When Larissa fixes hers up I'm lookin' a bit better".  You said that you had told your sister to fix up her statement.

20In the phone call on 2 October 2014 Ms Galloway told you she was to be interviewed by police because someone had said she had previously shaken Samuel, you responding that you wondered who could have said that.  After her interview on that date Ms Galloway confronted you over the phone about what you had said to police about her, you replying, "I had to say something so, fuck, like they stopped just like lookin' at me all the time, like fuck", that you were, "Saying it as it was", so, "They can get off my case a bit".  In a later call with Ms Galloway that day you said you were not trying to make her look bad but just, "trying to get them off my plate a little but 'cause I was sick of it".

21There was, as I said, some prevarication by your sister, Larissa, about having seen you shake Samuel but she also made a fuller statement to police saying she had never seen Lisa Galloway shake Samuel.  At committal she amended her statement, saying she had seen Lisa shake Samuel before, "but not enough to hurt him".

22In your interview with police on 25 September 2014 you said you had requested that Ms Galloway ask Ms Best to come around to the house on 4 August, the day before the incident, but it was not because you could not handle Samuel.  You denied shaking Samuel on August 5, saying you went to the toilet and Samuel fell off the bed.  When you were further interviewed on
21 October 2014 you denied telling Ms Galloway to make you look good when speaking to police, denied asking your sister to change her statement and said you did not recall asking people to change things in their statements.  You said that on the morning of 5 August you went to the toilet and maintained Samuel had fallen off the bed, saying you had never been angry with him.

23I now turn to Indictment F13867511A.2, a charge of common assault to which you also pleaded guilty and the maximum penalty for which is five years imprisonment.  The facts underlying this charge are that in February 2014 one evening at your mother's house you and Ms Galloway were having an argument during which you were holding Samuel and getting angry.  Ms Galloway asked you to give Samuel to her, you replying, "Fuck off you stupid slut", your sister, Sarah[8], then taking the baby.

[8] A pseudonym

24While the two of you were arguing in the kitchen you pushed Ms Galloway into the corner of a wall, causing her to fall over and receiving bruising to her hip and soreness to the right side of her back from her hip to the top area of her back.  The incident was witnessed by your mother, you saying in answer to her query as to what was going on, that Ms Galloway was going to leave you and your mother seeing the bruise on Ms Galloway's hip.

25In an interview on 21 October 2014 you said you recalled an incident where you had said some nasty things to Ms Galloway during an argument and pushed her off her feet so that she fell into a wall and had a bruise on her hip. 

26These matters have had a protracted history.  You were charged on 2 November 2015, offering to plead to the common law assault charge on 10 February 2016.  There was a contested committal hearing held on 28 and 29 July 2016 in relation to the negligently causing serious injury and the matter was first listed for trial on 28 August 2017.  The date was vacated and adjourned for genetic testing to be carried out in relation to Samuel, the prosecution informing defence of the possibility of such testing and its relevance to the case in that the testing was to determine whether Samuel had some sort of genetic predisposition to the injuries that he ultimately suffered.  Testing was carried out.  Presumably there was nothing of assistance to defence and the matter was then listed for trial on 30 July 2018, on which date a guilty plea was entered to the charge of negligently causing serious injury.  Ms Galloway declined to make a victim impact statement.

27I now turn to your personal circumstances.  You are 25 years old, the eldest of three children born to your parents, you having two younger sisters.  Your parents divorced when you were 15.  Your family have experienced years of violence at your father's hands.  You told psychiatrist, Dr Nina Zimmerman, whose report dated 5 August 2018 was tendered on the plea, that your father was an angry drinker, a gambler and a cannabis addict who was extremely violent to your mother, yourself and your sisters.  You said you had witnessed him half choking your mother, holding a knife to her throat and then breaking her nose when you were 14 and he then left.  You told Dr Zimmerman that your father on occasion hit your sisters in order to force your mother to give him money for gambling.  You described him to Dr Zimmerman as scum.

28You also said he was a gutless man who stole food and money from your mother after leaving the house.  Your mother re-partnered soon after the separation and you have a good relationship with your stepfather, which is ongoing.  Your mother and sisters remain supportive of you.

29You were educated in Melton at both primary and secondary levels, describing yourself to Dr Zimmerman as a smart student who under achieved due to truanting.  You said you had been suspended for fighting but never expelled, had many girlfriends, and were never lonely.  You left school in Year 10 and undertook a roof plumbing apprenticeship, completing only two years of this.  At that stage you took out a loan to buy a car which was then stolen.  You were unable to pay the debt, became bankrupted and this apparently led you to use drugs heavily.  You had begun using alcohol before that, abusing it on a binge drinking basis thereafter, and used methamphetamine and cannabis as well as prescription drugs, primarily benzodiazepine, on a daily basis up until the offending against Samuel.  You have reportedly not used drugs since and now rarely drink. According to Dr Zimmerman you have remained abstinent from drugs now for a period of four years.

30In terms of your psychological and psychiatric history you told Dr Zimmerman you had suffered from anger difficulties from about the age of ten, describing blacking out and hurting people but saying however that you did not get angry for no reason but would simply overreact.  You saw a psychiatrist about ten times when you were 17 because of your anger problem, apparently diagnosed then as suffering from schizophrenia and a bipolar disorder.  Dr Zimmerman did not agree with those diagnoses and does not believe you are suffering from those conditions.  You also described hearing people calling you names and swearing at you when there was no one around.  You were reportedly prescribed antipsychotics at the time as well as an antidepressant and anti-anxiety medication.

31Following the offending against Samuel, Child Protection became involved and you were only able to see him under supervision, which contact you declined to undertake.  You were also prevented from residing with your mother as your sister and infant nephew also lived with her.  You have resided in share houses ever since.

32At the time of your interview assessment with Dr Zimmerman you presented as being preoccupied with worries about the court process which had continued over years and the possibility of being gaoled.  You said you were lethargic, had trouble sleeping, rarely went out and spent a lot of time gambling to take your mind off your worries.  You said you had undertaken casual labouring work and have a forklift licence but felt unmotivated to work.

33In terms of the offending against Samuel you told Dr Zimmerman that at the time of the offending you were drinking a lot of alcohol and abusing a range of prescription and illicit drugs, smoking about a point of ice a day.  You said you were binge drinking once or twice a week with friends and taking more than you were prescribed of your anti-anxiety medication, stating, "Me and a mate would have half a packet of pills each until we were drooling".  You said you would not have consumed any drugs or alcohol on the day of the offending but were unsure of what drug you had taken the day before.

34Your version of the offending that you gave to Dr Zimmerman differed to the prosecution summary on the plea in that you said that you found Samuel had fallen off the bed after you returned from the toilet, that he had gone quiet, that this frightened you and that you tried to wake him by shaking him.  You said you were not feeling angry or out of control at the time, were not annoyed at Samuel or wanting to harm him and had never hit or shaken him before.  It was Dr Zimmerman's opinion, as I have said, that you did not present as either schizophrenic or suffering from a bipolar condition.  It was her belief that at the time she saw you, you were suffering an episode of depression with suicidal ideation, largely arising from the circumstances in your life that had arisen and were ongoing since the offending, effectively resulting in your isolation from your family.  She stated, "I do not believe that Mr Farrell was depressed at the time of the offending but his illness was triggered by the aftermath".  She believed there would be a deterioration of your mood disorder were you to be incarcerated.

35In terms of your criminal history, whilst you have no prior convictions there are subsequent matters relating to offending that occurred prior to and after
5 August but for which you were dealt with after 5 August 2015.  I was given summaries underlying the charges and they made, in my view, for disturbing reading.  You have been dealt with for dishonesty, relating to the use of $7000 mistakenly placed in your bank account in 2013, which you used in a spending spree despite knowing the money was not yours.  I do not regard this offending as relevant to the sentencing exercise before me.

36You were placed on a Community Corrections Order on 7 November 2014 on charges of making a threat to kill, assault with a weapon, contravening a family violence intervention order, theft and unlawful assault.  On 14 January 2016 you were fined $1000 for contravening a family violence intervention order.  On 14 January 2016 you were placed on a suspended sentence for contravening a Community Corrections Order.  You were dealt with again for contravening a family violence final intervention order, that was on 19 October 2016 and you were fined $750.

37I was given summaries, as I have said, of that offending.  On 6 November 2013 your mother took out an intervention order against you because you had become increasingly violent and aggressive towards her.  On 26 November 2013 you were home with your sister, Sarah, then age 13, when the two of you had an argument over a television program and you hit her in the back.  On
3 December 2013 after your mother picked you up from the doctors she became uneasy because you were unusually quiet and short with your conversation and on returning home, whilst she was making dinner, an argument broke out about the way she was serving it to you where you verbally abused her and became angry, placing her in fear.  Your father, who was at the house, intervened and you abused him before going to your own room, causing your mother to fear that she and your sister were going to be assaulted.  The matter was reported to police that night, your mother saying she was too scared to lay a charge but eventually being persuaded by police to do so.

38Your sister initially refused to speak about the incident on 26 November, saying she was scared you would find out and would assault her as payback and the brief statement noted that the police informant saw that both your mother and sister were in significant fear of you.  You denied the allegations to police.

39Then on 29 February 2014 you were at your mother's house with Ms Galloway and Samuel.  At about midday you and Ms Galloway were in your bedroom with Samuel when you had an argument.  Ms Galloway said she wanted to go home but you would not let her, pinning her to the bed, at which stage Samuel started to cry and you let Ms Galloway go.  She again started to go outside but you grabbed her and forced her back onto the bed at which stage your sister entered the room, asking Ms Galloway if she was okay, she being unable to reply as she was crying.  Your sister took Samuel and left the room.  Your mother then walked in the room and told you to get off Ms Galloway but you told her not to tell you what to do.  Then as she left the room you yelled at her and your sister.

40Back in the bedroom you climbed on top of Ms Galloway and slapped her across the face with your right hand before leaving the room again.  You then came back into the room, holding Samuel, putting him in his bouncer and saying, "Shut the fuck up" and pushing Ms Galloway onto the bed, using threatening words. You then went to the kitchen where you got a knife out of the drawer, telling your mother, "I'm going to kill her" and went back to the bedroom, holding the knife as if you were going to stab Ms Galloway.  She fell off the bed in fear and you continued to yell at her while she left the room.  Police were called and they contacted you by telephone, directing you to leave the house without the knife and surrender.  You told your mother that if she told police about the knife you would kill yourself.  You were charged with assault with a weapon, unlawful assault and making a threat to kill.

41On 22 October 2014 a family violence intervention order was granted against you with the protected persons being Ms Galloway and Samuel.  One of the conditions were that you were not to be within 200 metres of Ms Galloway's home.  On 11 August 2015. police on information from the Department of Human Services attended Ms Galloway's home where you were seen sitting on the edge of the bed.  You told police you had attended the house a number of times and believed that you were entitled to as you were invited by Ms Galloway.

42On 3 December 2015 an intervention order was granted where the protected person was Samuel, the conditions of the order prohibiting you from having contact with him and prohibiting you from remaining within 200 metres of
Ms Galloway's house in Melton West.  In early January 2016 Ms Galloway was on good terms with you and at about 8 o'clock on Sunday, 3 January, you picked her up from work to drop her home, on the way asking if you could borrow her car for a month and she refusing.  Later that evening you called her and met her to have a cigarette, picking her up about five or six houses down the street from her house.  Samuel was asleep inside.  You again asked to borrow the car.  She again refused and you yelled at her and told her to, "Get your car keys", or you would do burnouts up and down the street.  Ms Galloway's mother and her partner, who also lived at the house, heard you yelling and when your mother's partner told you not to do burnouts you replied, "I will do what the fuck I want".  Ms Galloway started to walk towards her house, at which point you grabbed her by the back of the neck from behind and pulled her towards you, Ms Galloway's mother calling out, "Don't you touch my daughter", at which point you let her go.

43You were arrested on 5 January but made no admissions, claiming you parked 200 metres away from the house and only grabbed Ms Galloway from the back of the neck to pull her in for a kiss and denied making threats.  These matters might not constitute prior criminal history but they certainly demonstrate a nasty and aggressive temper towards your family and Ms Galloway, of which you should be thoroughly ashamed.  Notwithstanding the version of events you gave Dr Zimmerman, you have accepted the scenario outlined in the prosecution summary by your plea, which involved a violent shaking of a nine-month old infant resulting in serious injuries.  I am satisfied that this occurred in the course of an angry and frustrated reaction to Samuel's crying.

44Your counsel submitted that I should take into account as a mitigatory factor that this was the first occasion in which you had been left alone to care for Samuel, but I note that the assault upon him occurred within two hours of you assuming care of him.

45The evidence, including psychological evidence, is that you have experienced anger difficulties for much of your life, difficulties which were undoubtedly exacerbated by your abuse of alcohol, illicit and prescription drugs.  It should be noted that as a result of the testing on Samuel undertaken to determine if a genetic condition existed which could have accounted for the injuries he displayed, it was discovered that Samuel is in fact not your genetic child.  This might be a shame for you but it also means that Samuel is safe from you.  As a result you no longer have any contact with him and the relationship with
Ms Galloway is over.

46I do not regard your relative inexperience as a parent or the fact that the assault upon Samuel occurred on the first occasion you were left in sole care of him as any sort of excuse for the violence you inflicted upon him.  It is quite clear that temperamentally you were entirely unsuited for the care of a small fractious child.  You are, in my view, a man for whom rage has been a problem, as I have said, for the majority of your life, and it is clear from all the material relating to your subsequent offending, as evidenced by the intervention order that has had to be taken out against you by your own family, that you lash out both verbally and emotionally when your will is crossed and that you have been a major source of fear and distress to your mother and sisters for years.

47Your assault upon Ms Galloway is further confirmation of your readiness to resort to violence all too readily.  You have been a continual perpetrator of domestic violence against your mother, sisters, partner and now a baby whom at the time you believed to be your son and was seriously injured by you.  I cannot condemn your behaviour more strongly.  It is disgraceful, cowardly, detestable and entirely self-indulgent.

48There is a well known fact, Mr Farrell, that on average two women a week are dying at the hands of their violent partners in this country and thousands more are seriously injured both emotionally and physically.  I do not even know what the statistics are for the children of these appalling men.  You may not have joined the ranks of domestic murderers, Mr Farrell, but it is my strong view that unless you take strong steps to address your anger problems you may very well do so.

49What is most concerning is that whilst you profess to despise the father, the man you call scum for his violence and substance abuse and gambling - which appears you have now turned to - you have gone on to become exactly the same type of man in every respect.  You need to have a think about that.  You have become your dad.

50Let me make it very clear, Mr Farrell, the courts regard domestic violence in the most serious light.  Anyone who engages in the sort of behaviour that you have that has now resulted in serious injury to a helpless, vulnerable infant child, can only expect the sternest response from the court, and when you leave this courtroom, Mr Farrell, forever on your record will be the charge of negligently causing serious injury.

51If you are ever brought before a court again, the court will know about that conviction.  These sentencing remarks I am making are transcribed.  They will be on the record and will be available to any future judge or magistrate who may have the misfortune of dealing with you.  You will always be known in these courts should you return as somebody who seriously injured a baby.  You can expect very little mercy from this court if you ever offend again towards a woman or a child as a result of your appalling temper.  Your days of being a perpetrator of domestic violence are only going to lead you to years and years in gaol unless you do something about it.

52You must take some proper steps to ensure that you never again assault a woman or a child either emotionally or physically and I am quite sure your father yelled appalling things at you when you were growing up, I am quite sure you heard him yelling and screaming appalling things at your mother and sisters as you were growing up, I am quite sure you are aware of the terror that that causes, quite apart from any physical assault.  You have experienced these things.  You knew what it was like to be a little boy in fear and terror.  You have gone on to behave in this way to the mother and sisters who already endured years of this behaviour from your father.  You have gone on to inflict this on your partner and most shame for all, you have inflicted it on a tiny child.  I accept that the injury and the assault that you inflicted on Samuel was in no way premeditated.  That does not make it much better, Mr Farrell.  It means that a little boy crying can cause you to snap and to shake him so violently that he ended up in hospital with life threatening injuries.  You are extremely fortunate that child did not die.  You would be looking at decades in gaol.

53It was submitted to me because of various factors, including your plea in this matter, your lack of previous convictions, your inexperience as a parent, your depressive condition (which, however, I note is said to have arisen from the circumstances following the offending rather than the offending itself, which is likely to deteriorate in a custodial setting), the isolation from your family over a period of four years, being what is termed extra-curial punishment, I should deal with you by way of a combination sentence comprising both immediate imprisonment and release on a community corrections order.

54I should add that Dr Zimmerman found that you had what she termed as "qualified remorse" for your offending.  I do not see much evidence of remorse at all, both in your conduct following the assault upon Samuel, seeking to influence others to place you in a more favourable light when speaking to police, and your continued version of events surrounding the assault upon Samuel which continues to be at variance with the prosecution summary accepted by you on the plea.  In other words at no stage have you ever said, I did this because I was angry.  There is always an excuse around it and there has always been an excuse around it, even when you are talking to Dr Zimmerman.  You have never actually said, "I lost it, I shook him and I shook him hard".  Never once have you said that.  My suspicion is that whatever remorse there is lies around the fact that you have been caught out, removed from your family and now face the prospect of a custodial term.  Indeed, you have been remanded in custody since the plea hearing on 13 December last year.

55The prosecution, however, does concede that in those circumstances such a disposition is open to me.  I have thought long and hard about the appropriateness of this disposition, Mr Farrell.  Two things particularly worry me.  Protection of the community, that is women and children in the community who have always been in danger at your hands.  Secondly, punishment for your appalling behaviour and condemnation of it.

56Ultimately, however (and I note you have been found suitable for placement on a Community Corrections Order, and with some reluctance, I have reached the same conclusion) it seems, given that your longstanding anger problems appear to have originated or arisen from the violence you saw perpetrated upon yourself and your family by your father, and that these problems require long-term psychological intervention, not necessarily able to be resourced within a custodial setting, appropriate to accede to your counsel's submission and sentence you to a term of imprisonment and then release on to a Community Corrections Order.

57And do not think the party is over, Mr Farrell.  Let me tell you this, all right.  You will be doing 11 months and three weeks in gaol.  On your release you will be seeing me six weeks later.  Do you understand me?  You will be on an order for two and a half years and I am going to see you at regular intervals throughout that time.  Every time you come back to court I will have a report from Corrections about how you have been behaving.  You understand?  You and I will be seeing a great deal of each other over the next 30 months after you have got out of gaol.

58I will be imposing conditions, and this is a big one.  You are to attend psychological or psychiatric counselling for as long as it takes for you to thoroughly understand and overcome this terrible path you are on, because you are going to end up like your dad, every chance.  You are well on the road.  If you want to get off that path you have got a lot of work to do.  Now, if I find that you are not attending appointments (and there will also be drug rehabilitation conditions) - if I find you are not attending those (there will also be a lot of work hours), you offend while you are on this order, you fail to abide by all the conditions, you will be brought back before me on a breach and I will positively enjoy gaoling you.  Do you understand me?  The only reason I am placing you on this order is because this is a cycle that needs to be broken and I do not necessarily think four with a three, which is what I was thinking of, is going to do the trick, but you have got a lot of work to do.  I will be breathing over your shoulder every step of the way.  You will be seeing me six weeks after you get out of gaol and it will be every six weeks after that until I am satisfied that you are doing a bit better.  Then it will be every three months, and not turning up for judicial monitoring constitutes a breach of the conditions of your Community Corrections Order and will bring you back here so fast your head will spin.  Do you understand that?

59ACCUSED:  Yes, Your Honour.

60HER HONOUR:  This Community Corrections Order is not being imposed out of sympathy, it is not being imposed because poor you, you were minding what you thought was your baby boy at the time.  It is because you need very heavy rehabilitative work and gaol is not going to do it, and that is the only reason I am doing this.  As I said, if you do not abide by every single condition to the letter you will be breached and I will gaol you, and I will gaol you big time.  I am able, if you breach the Community Corrections Order, to re-sentence you for this and I will give you the sentence that I would have given you had I not taken this attitude that I have today.  Is that very, very clear?

61ACCUSED:  Yes, Your Honour.

62HER HONOUR:  Thank you.  The Community Corrections Order will be in relation to both charges.  What I will do is in relation - stand up, please, sir.  In relation to the charge of negligently causing serious injury you are sentenced to 11 months and three weeks imprisonment and you will then be released on a Community Corrections Order.

63In relation to the common law assault you are placed on a Community Corrections Order which will begin on the date that you are released from gaol and will run concurrently with that order.  That order will last for 12 months.  Before I can place you on a Community Corrections Order I must explain the conditions to you and must first obtain your consent.  They are, firstly, that you must report to the Office of Corrections within two days of the start of this order, that is two days after you get out of gaol you report to the Community Corrections office.  Whilst you are on this order you must not commit any offence punishable by imprisonment.  That does not mean if you commit an offence and do not go to gaol it is okay.  If you knock off a box of matches from Woolworths for which theoretically you could be gaoled, that will constitute - that will amount to a breach of the order.  You understand?

64Whilst on the order you may not leave Victoria without the permission of the Community Corrections office.  You must report to and receive visits from the Community Corrections office.  You must report any change of address or employment within 48 hours of the making of this change.  You must not report to the Community Corrections office under the influence of drugs and alcohol.  You must obey all lawful directions of the Community Corrections office.

65The order in relation to Charge 1 will last for two and a half years.  The order in relation to the common law assault will last for 12 months.  The special conditions are that you will undertake 300 hours of unpaid community work.  You will undertake assessment and treatment for drug and alcohol difficulties.  You will undertake assessment and treatment for mental health difficulties.  You will undertake programs specifically designed to reduce reoffending.  That is probably anger management, but I am doing both.  The anger management course is not going to be good enough.  It only lasts about six weeks and you need years.  You will be in therapy for years, do you understand me?  Thank you.

66All right.  Is there anything else that I - judicial - there will be judicial monitoring.  The first judicial monitoring will take place six weeks after you are released from prison.  Yes, it is a conviction obviously.

67MR DOYLE:  The only other matter was, Your Honour, we emailed a draft s.464ZF order during the course of these proceedings.

68HER HONOUR:  Yes, I will grant that.

69MR DOYLE:  And we seek that order, Your Honour.

70MR GIBSON:  Yes, PSD (indistinct words) yes.

71MR DOYLE:  Your Honour, Mr Gibson has just raised the issue of PSD.  There was 61 days.

72HER HONOUR:  Yes.

73MR DOYLE: But under s.44 of the Sentencing Act Your Honour is entitled to make an order that is up to 12 months.

74HER HONOUR:  I know I can.

75MR DOYLE:  And you do not have to deduct the pre-sentence detention in this case.

76HER HONOUR:  I know.  I am just so - yes.

77MR DOYLE:  I mean effectively you do not.  It is an order of - - -

78HER HONOUR:  No, I know.

79MR DOYLE:  - - - approximately 14 and for this offending that hardly seems excessive but that is the prosecution's submission.

80HER HONOUR:  Well, the prosecution did say, however, that a combination was within range.

81MR DOYLE:  We did but - we did, just, I think was the prosecution's submission but it is not unusual that judges impose orders that go up to 12 months in the context of when there has been 60 days pre-sentence detention.

82HER HONOUR:  No, I know.  Look, I am going to give the PSD because the Corrections order is going to be very unpleasant for him.

83MR DOYLE:  Yes, Your Honour.

84HER HONOUR:  I want him out there and I want him working on this.  So I will declare 61 days PSD - 44 - sorry, is it 61?

85MR DOYLE:  It is 61, yes.

86HER HONOUR:  Yes.  Very tempted to just leave it there.  You can do your extra 61 but, yes, I just do not want you going in to - but anyway, I will leave it.  All right, we will do that.  Now, are you quite clear?

87ACCUSED:  Yes, Your Honour.

88HER HONOUR:  Yes?

89ACCUSED:  Very clear.

90HER HONOUR:  So do not start thinking, "Yeah, hey, I'm out of gaol".  You will be a very busy man when you are out of gaol.  You are going to have a lot of obligations to meet over a long period of time, all right, and I will have these sentencing remarks in front of me when you get out of gaol, which I will have read in full first before I see you the first time on judicial monitoring.  You have got it?

91ACCUSED:  Yeah.

92HER HONOUR:  You have a seat.  We will prepare the paperwork, thank you.  Because I have included the PSD it is from 13 December.  So it is 11 months and three weeks.  Mr Gibson, can I say I have done an awful lot of yelling at your client during both hearings, which I know is extremely unpleasant for defence counsel.

93MR GIBSON:  No, Your Honour.

94HER HONOUR:  I want to make it clear that had nothing to do with the very competent and helpful way in which you ran a most difficult plea, Mr Gibson, and I just wanted to make - it is very easy for counsel to go off and feel as if they have been yelled at too.  It was not.  I was extremely happy and impressed at the assistance that you gave the court.

95MR GIBSON:  Thank you, Your Honour.  I respect the logic of what you were attempting to do.

96HER HONOUR:  You might but still it is not very nice sitting through it, so thank you very much.  Is there anything else you would like me to say to you,
Mr Doyle?

97MR DOYLE:  No, Your Honour.

98HER HONOUR:  It is a bit like pulling teeth anyway.

99MR DOYLE:  No, no.  No, I am all right.

100(At this stage the court proceeded with another matter.)

101HER HONOUR:  All right.  So you will be seeing me on 11 February 2020, all right?  Good.  I look forward to that.  All right, and that is when the real - I mean it is not easy being in gaol.  I hope you did not do - we had a bit of a chat.  There was no pathetic phone calls on Christmas day and saying, "Poor me, I'm in gaol while you are all having a nice Christmas lunch".  Now, you have just got to wear this.

102MR DOYLE:  Your Honour, just on the - I think Your Honour said 11 February.  That will be about eight weeks after he gets out, I think.

103HER HONOUR:  Is it?

104MR DOYLE:  Because - we can a week off and he has been in since
13 December.  He will get out about 7 December this year, I think.

105HER HONOUR:  All right, thank you.  All right.

106MR DOYLE:  Yes.  As PSD.  Well, I am including PSD, yes.

107HER HONOUR:  Yes.

108MR DOYLE:  Once you include the PSD the sentence starts - - -

109MR GIBSON:  Yes, yes, yes.

110MR DOYLE:  The sentence starts on the 7th or the 13th minus a week.  It will be around - - -

111HER HONOUR:  Why minus a week?

112MR DOYLE:  Because you have given him 11 months on three weeks.

113HER HONOUR:  So that is the way you are doing it, yes, all right, that is fine.

114MR DOYLE:  Yes, yes.

115HER HONOUR:  Now, I know I have let you do a lot but I am not quite finished yet.  You just need to understand this, Mr Farrell.  This is crunch time for you.  I am probably going to sound like a mass of clichés now but your life can go this way or it can go that way.  If you ever want to have a decent family, a happy life, a life of any peace and calm, nobody has a perfectly happy life, but if you want to have a contented, productive life you have got to do something about this.  I am saying it again.  You are turning into your father.  Am I right?  Your mother is sitting there.  Am I right?

116ACCUSED:  I agree with you.

117HER HONOUR:  Pardon?

118ACCUSED:  I agree with you, Your Honour.

119HER HONOUR:  Yes, good.  I am glad to hear - but you do not understand.  Men do not enjoy therapy, most men, and you are going to be doing a lot of it.  All right?  You have to, and, you know, why a bloke with an anger problem goes and has ice, for heaven sakes, what medication are you on?

120ACCUSED:  At the moment nothing now.

121HER HONOUR:  Good, because Dr Zimmerman was worried about you being on benzodiazepine, that it is quite clear you have developed some sort of addiction to either your anti-anxiety or anti-depression medication - but I am glad.  You need to get off that.  Now, if you put yourself in an anger management course, great.  Put yourself into whatever drug course you can get.  There is a 24-hour ice course you can do.  You just do whatever you can.  The other thing you can do is get yourself into Narcotics Anonymous or Alcoholics Anonymous there at the gaol, all right?  There are plenty of blokes there who will be sitting there, talking about what they have been doing to their wives and children as a result of their addiction.  You have got an extra layer of a terrible anger problem on top of that, all right?  But, you know, if you want other people to talk to, and that is something you can - have you even been near those organisations?

122ACCUSED:  Yeah, when I signed up for anger management.  I've also actually looked into NA as well while I was at Fulham but I haven't done anything while I’ve been in MRC because obviously I'll go back to Fulham, but once I get back in - - -

123HER HONOUR:  Well, I think there is both Narcotics Anonymous and Alcoholics Anonymous, I am not sure, but they still operate on the same principles.  You get yourself along there, all right?  You start working on all of this now.  I am quite serious about what I said.  I will be monitoring you very, very heavily.  I am really, really concerned about you hurting someone.  I am really concerned about you starting to feel sorry for yourself and getting all resentful and all angry and lashing out.  You know, your mum has been here the whole time, as if she has not had enough in her life without a son she is scared of and you are a big bloke.  You would be terrifying when you get going.  It is just not on.  It is not just going to happen.  You either make the change or I will put you away and we will all - I will put you out of your misery and give you the four with a three that I was thinking of.

124Yes, and that is - you just remember that stat.  Two women a week murdered by their partners in Australia.  It is unbelievable.  Can you imagine how many women are seriously injured and how many kids, so often we see in this court, the awful thing in these murders, they watch their dads kill their mums and you saw your dad try to kill your mum.  You have seen that and you are well on the way to being one of these people perpetrating the same terror on a little boy that you felt yourself.  You just remember that.  You have got a lot of apologising to do and that is one of the good things at NA and Alcoholic Anonymous do, is you have to make reparation.  You have to apologise.  Very good exercise for some - eat some humble pie.

125You know, you are the only bloke in the house.  You have got your sisters running around.  You know, just man up, grow up, all right.  This has got to stop otherwise we will stop you.  Have a seat.

126ASSOCIATE:  (Indistinct words).

127HER HONOUR:  We are having some problems.  What I am going to do is - what would you like me to do?

128ASSOCIATE:  (Indistinct words).

129HER HONOUR:  Look, what we might have to do is - I am sorry about this.  We might just have to take Mr Farrell down.  Look, I am not starting until quarter to 12 anyway.  Look, I am going to go downstairs and - here, I will give you this.

130ASSOCIATE:  Thank you.

131HER HONOUR:  Yes, thank you.  I am sorry to inconvenience counsel but I just need you to hang around.  Is there anything else - and I will try and find that.  I know I have got the s.464ZF.  We will get them sorted as well.  Thank you very much.

132(At 11.30 Her Honour left the Bench.)

133(At 11.43 pm Her Honour returned to the Bench.)

134HER HONOUR:  Yes, thank you, we have got the documentation.  No more yelling.  It is all right, Mr Gibson, I have stopped.

135MR GIBSON:  No, that is all right.

136HER HONOUR:  Run out of steam finally.

137ASSOCIATE:  (Indistinct words).

138HER HONOUR:  Pardon?

139ASSOCIATE:  (Indistinct words) 21 January.

140HER HONOUR:  It is 21 January is the first judicial monitoring.  Now, I am not sure - where will you be living when you get out, do you know?

141ACCUSED:  (Indistinct words).

142HER HONOUR:  Good - will you make sure you tell Corrections how he is behaving as well.  I would like to know how he is behaving towards you too.  All right, so, you know, have some input.

143MOTHER OF ACCUSED:  I will, thank you.

144HER HONOUR:  All right, good.  And your daughters, okay.  This has all got to change.  The other thing is I am not going to make an order saying that the attending on the drugs and alcohol and various programs comes off his work hours, Mr Gibson, but I can do that.  Perhaps if I might - just one more - one last thing, Mr Farrell.  If you behave properly on this order, if I see after sort of six, eight months, if you get work and you are attending to your orders, you are doing everything you should - I will make it nine months, I will have a look at changing the order so that attending on your therapy comes off your work hours but I will only do that if you have got full time employment and you have given me a nine-month track record of going to all these programs, and the other thing is do not fall into the mistake that many young men do on this order.  When you get out if you get employment and you find it difficult to meet your commitments, do not start thinking, "My work's more important than the order", all right?  There is you, there is gaol, there is the order.  It is the only thing that is keeping you out, all right?

145So you need to bear that in mind.  I will hold it out as a carrot.  If you get on with things and improve there will be no lessening of the amount of therapy and drug treatment that you have, but I will look at the work hours later down the track but only if they are getting in the way of things.  You have got to have some other very pro-social things like employment going before I would even look at that.  So do not even look, but that is something you can work towards but it is a matter for you and you are going to have to do 100 per cent on all those other things before I would even consider it, all right?  Thank you.  There is the documentation.  Yes, thank you.  I thank counsel very much.  Have we got the 464?

146ASSOCIATE:  Yes.

147HER HONOUR:  Would you print that out and we will get that done now too.  Thank you.  You can take Mr Farrell down, thank you.  Is there anything - there is nothing else that I need to - - -

148COUNSEL:  No, Your Honour.

149HER HONOUR:  I need to sign three.  Just one?

150ASSOCIATE:  No, just sign the one.

151HER HONOUR:  Just one?

152ASSOCIATE:  Yes.

153HER HONOUR:  It has changed?

154ASSOCIATE:  Yes.

155HER HONOUR:  Good.  All right, thank you.  Counsel are excused.  I thank everyone for their - and I thank the Crown's instructors for getting all that material to me too.  I am very appreciative, thank you.

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