Director of Public Prosecutions v Fell
[2024] VCC 602
•1 May 2024 Melbourne
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION CR 21-00304
CR-23-01279
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JADE FELL |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | SHEPPARTON | |
DATES OF HEARING: | Trial 27, 28, 29 February 1, 4, 5 March 2024 | |
DATE OF SENTENCE: | 1 May 2024 Melbourne | |
CASE MAY BE CITED AS: | DPP v Fell | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 602 | |
REASONS FOR SENTENCE
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Subject: : Criminal law – sentence
Catchwords: found guilty at trial of one charge of common law assault – plea of guilty to
a summary charge of unlawful assault –two occasions - offender in relationship
with complainant- choking as hallmark of family violence against women – offender had
deprived childhood – Bugmy principles – alcohol and drug problems - breach of CCO
Cases cited: Bugmy v R (2013) 249CLR 571 ; DPP v Dingadarar [2021] VCC 534 DPP v Robinson [2022] VCC 1122
Sentence: CR-23-01279 Common law assault and summary charge – 12 months imprisonment – 365 days – with 12 month CCO – CR-21-00304 Breach CCO – 155 days time served to be served concurrently with the 365 days imposed on CR-23-01279 time served
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Cameron | DPP |
| For the Accused | Ms F. Fox | IR Michaelson |
HER HONOUR:
1 Jade Fell, you have been found guilty by a jury of one indictable charge of common law assault. You also pleaded guilty to a summary charge of unlawful assault. I shall also be dealing with the breach of a Community Correction Order imposed by Judge Lawson formerly of this court, for burglary and theft and a number of summary charges on 10 November 2021.
The offending
2 At the time of this offending you were in a relationship with the complainant, whom you had met when you moved into the unit next door to hers. Initially you worked for the same employer and would drive to work together. Difficulties soon arose between you, and your behaviour towards the complainant became erratic and controlling.
3 On Friday 9 December 2022, about three months into your relationship, you and the complainant argued throughout the evening and into the night, moving between each other's units. Between 2 am and 3 am the complainant awoke in her bed with you kneeling above her, grabbing her by the throat and squeezing. You were holding her mobile phone in your hand, saying, 'What the fuck are these Snapchat notifications? I thought you had deleted it'.
4 You pulled her out of bed by her neck and she could not breathe. You dragged her from the bedroom into the lounge room by her throat and then her hair. You struck her to the back of her head, causing her to fall to the ground. She tried to stand up but you kicked her. She again tried to stand but you pushed her, causing her to fall onto the television. After that she was able to open the door and leave the house.
5 About two weeks earlier, on 22 November, you were a passenger in the complainant's car as she drove you both back to work after having lunch. You were verbally abusing her. When the car stopped at some roadworks you became more abusive and struck the complainant's face with the back of your hand. The complainant asked if you had just punched her. You replied that you did not punch her, you backhanded her. You were arrested and remanded in custody on 13 December 2022.
6 Throughout 2020 and 2021 you committed various offences and spent time on remand and serving short sentences. For a short time you were at the Dardi Munwurro Residential Rehabilitation Program as a bail condition. These circumstances gave rise to the principle of totality which Her Honour Judge Lawson took into account when sentencing you on 10 November 2021.
7 Her Honour also took into account aspects of what she termed your tragic background as constituting Bugmy principles of sentencing. Before moving on to consider those and other mitigating factors. I turn to a consideration of the gravity of this offending.
Gravity of the offending
8 The assault on the complainant on 10 December was a particularly serious assault because of the fact that you choked her, impeding her breathing temporarily and then continued assaulting her. In her victim impact statement dated 14 April 2024 the complainant said that she had been unable to fight back because she was in shock and had no strength in her body. She believed that she was going to die.
9 She said serious injury was done to her neck requiring surgery. She was unable to work and could not sleep or eat. Being unable to work, she could no longer afford her own accommodation and has had to ask her friends for financial help. These issues combined have driven her to despair about her future to the extent that she has contemplated taking her life.
10 The offending happened in her own home, late at night when no one else was around and the complainant described it as very frightening. She suffers from post-traumatic stress disorder and has weekly therapy. These severe effects of your offending on her life indicate how serious it was. She describes being in fear of your release from prison. It is indeed serious, and also very sad that she is suffering in this way because of your decision to assault her, in the context of what she has also described as a controlling and threatening relationship.
11 That behaviour is often the hallmark of family violence perpetrated against women, and the use of choking is accepted as being one of the most serious forms of such violence, as in many cases it has been the precursor to fatal violence. It calls for strong denunciation by the court and the sending of a message that it will not be tolerated and indeed will lead to severe punishment.
Breach of CCO
12 Moving on to the offence of breach of the Community Correction Order imposed by Her Honour Judge Lawson, which was for two years and in combination with a prison term of 155 days. This breach is the second, the first having been dealt with by His Honour Judge Cahill on 1 September 2022. That breach resulted in a new Community Correction Order of 18 months, which is now breached by the current offending and failure to attend supervision on two occasions.
13 The breach report states that you reoffended within months of the new Community Correction Order commencing, and you had made minimal progress on the therapeutic conditions. The report's recommendation is that you be resentenced on the original charges.
14 As part of the Community Correction Order you had been referred for a mental health plan to explore the trauma of your upbringing, but the floods which affected the Shepparton area at that time, followed by your arrest, prevented further interventions.
15 A Corrections report was provided for a judicial monitoring hearing dated 17 November 2022, a week or so before the current offending. You were attending appointments as required, and reported that you were maintaining abstinence from methylamphetamine since your release from prison on 8 September, and that being employed was helping with this. You were making progress and yet your behaviour towards the complainant at the same time is reprehensible.
Personal background and related circumstances
16 I turn now to your background and some related circumstances. You are an Aboriginal man now aged 30, originally from Mildura. Your father left when you were an infant, and when your mother was unable to care for you, you were placed in the care of your grandparents.
17 The history of your background, as set out in the sentencing remarks of Judge Lawson, appears to have been extracted from a psychological report tendered at that hearing, which Ms Fox did not rely upon, given its limited relevance to the current offending. In her submissions as to sentence, Ms Fox has provided an outline of your history in similar terms to that referred to by Judge Lawson.
18 By the time you were seven your grandparents had difficulty managing you and you were placed with a male family friend. Over the next seven years you were systemically physically and sexually abused by him. He was subsequently charged, convicted, and sentenced to a term of imprisonment, which was eventually the subject of a successful appeal, resulting in a sentence of 11 years with eight years to serve.
19 Following the offender's conviction you applied for compensation from VOCAT, and an award was made in your favour. The VOCAT file was made available and I have perused its contents.
20 At the age of 13 when the abuse was reported, you returned to live with your grandparents. Your schooling had been considerably disrupted over the years and you were expelled from school in Year 8, resulting in little formal education. You left your grandparents' home aged 14 and had no stable home after that until you met your first partner, with whom you had two children.
21 They are aged eight and four and live in Western Australia with their mother. You hope to resume contact with them when released. Recently you were informed that you are the father of a baby aged about eight months conceived immediately after the offending and before your arrest and remand. You hope also to make contact with the baby's mother.
22 The circumstances of your childhood clearly indicate that the principles in the case of Bugmy[1] apply. That is, that the impact of the trauma and profound disadvantage you experienced during your formative years has not diminished with the passage of time, and I take that into account in assessing your moral culpability.
[1] Bugmy v R (2013) 249 CLR 571 (“Bugmy”)
23 You have been able to restore your relationship with your mother, who lives and works in Mildura. She attended the first week of your trial and was prevented by continuing to attend and to be at the plea hearing because of her work commitments. You will be able to live with her initially when you are released from prison.
24 Based on your good work history, you do plan to obtain work and to establish yourself independently. Whilst in custody recently and in the past you have participated in The Torch program which provides art and cultural support to First Nations people in custody and afterwards. You have succeeded in producing and selling paintings, and you are keen to continue when released.
25 As to your experience of custody more generally, the risks of contracting COVID-19 in prison are still very real, just as they are in the community, but with more difficult consequences given the context of the prison environment.
26 Your use of drugs and alcohol has been described as long term abuse from an early age. Indeed the perpetrator of child sexual abuse upon you gave you alcohol to drink as part of that abuse. Eventually you used methylamphetamine by injection and had only just succeeded in abstaining at the time of the offending in November and December 2022. I take into account all these matters as mitigating factors leading to some leniency in sentencing.
Sentencing issues
27 Ms Fox referred me to two comparable cases[2] with the usual qualification as to their utility in providing guidance as to an appropriate sentence. Both cases involved assaults of a type and severity similar to this case with a term of imprisonment of 18 months in one instance, and five months in the other. Both were decisions of judges of this court.
[2] DPP v Dingadarar [2021] VCC 534; DPP v Robinson [2022} VCC 1122
28 Sentencing Advisory Council statistics provide some guidance in that 74 per cent of common law assault convictions resulted in a term of imprisonment, but more than 50 per cent of sentences were below six months.
29 You have been assessed as suitable for a further Community Correction Order. Given that you had barely commenced the previous Community Correction Order that had begun with positive indications, it would seem that a further opportunity would enhance your prospects for rehabilitation.
30 You have been in custody for this matter for 504 days, which is almost 17 months. I might have to ask for some confirmation about whether that is accurate, but I will move on for the moment, Mr Fell.
31 A number of sentencing options are available which would be within range. An appropriate sentence must take into account several partially conflicting requirements. General deterrence is of particular importance because of the character of family or domestic violence inherent in your offending. Specific deterrence is also important given your previous relevant convictions in 2014, 2015, and 2020, as well as other offending since 2013 covering a range of antisocial behaviour.
32 It is in yours and the community's interests that you change this behaviour and cease offending. Your best chances of doing that are to remain abstinent from substances and to develop insight into the causes of your offending behaviour. That is unlikely to occur should you be released from prison without structured oversight. In your circumstances the best way to achieve this is by a Community Correction Order.
33 I note that the maximum penalties for common law assault and unlawful assault are five years' imprisonment and three months' imprisonment respectively.
Sentence
34 For Charge 3 on the trial indictment, common law assault, I sentence you to 12 months or 365 days' imprisonment. For the summary charge I sentence you to one month's imprisonment to be served concurrently with the first sentence. You pleaded guilty to that charge and I take that plea into account for the purposes of applying a discount.
35 You have already been in custody for 504 days. I declare 365 days as pre-sentence detention to be reckoned as already served. Accordingly you will be released from custody today, having already served the 12 months to which I have sentenced you.
36 A Community Correction Order may only be combined with imprisonment if the term of imprisonment is for 12 months or less. It is in the interests of your rehabilitation and protection of the community that the combination sentence be imposed. Your prospects of rehabilitation are probably reasonable, and will be improved by access to services through the CCO. Accordingly I also impose a CCO which applies to both charges. You have been assessed as suitable.
37 The order begins today and lasts for 12 months. You will be under supervision and you will be required to have testing and treatment for drug and alcohol use and for mental health treatment and monitoring. Importantly you will be required to take part in a Men's Behaviour Program or its equivalent. You will have to perform 100 hours of unpaid community work, and any hours you spend in programs will be credited against those work hours.
38 Because you have been assessed as being at high risk of reoffending, you will be subject to judicial monitoring, at least for the first stage of your engagement with Corrections. The first hearing date will be Friday 2 August at 9.30 am. You must report to the Mildura Corrections Office by 4pm, within two clear working days of this order, that would be Friday 3 May, the Mildura offices at 59 Madden Avenue, Mildura.
39 Finally I come to the breach proceedings. I find the breach proven and make no further order but I shall resentence you in relation to the original charges.
Breach proceedings
40 Now I am turning to the sentences for the original offences dealt with by Her Honour Judge Lawson. For Charges 1, 2, and 3, I sentence you to an aggregate term of imprisonment for 155 days, which you have already served.
41 For clarity, it has been served concurrently with the 365 days reckoned as already served. In making that order I take into account the principle of totality, bearing in mind that you have already been in custody for nearly 17 months and have served some short prison sentences before your release in September 2022.
42 Coming back to the days spent in custody, Mr Cameron, are you able to confirm that it is 504 days?
43 MR CAMERON: I think that's right. I'm just going to open up our respective submissions.
44 MS FOX: Your Honour, if it assists while my learned friend is doing that, I've just plugged it into the days calculator online and I calculated from
13 December 2022 to today is 505 days.
45 HER HONOUR: 505.
46 MS FOX: Thank you, Your Honour.
47 HER HONOUR: Thank you for that.
48 MR CAMERON: I can't get more than that, Your Honour. Agree.
49 HER HONOUR: 505 days. Thank you for that, not that it's going to affect the sentence at all.
50 MR CAMERON: No.
51 HER HONOUR: But it needs to be accurate. It's the Mildura Corrections Office at the moment. Mr Fell, you're being released today. Which prison are you at
52 OFFENDER: I'm in Fulham ‑ ‑ ‑
53 HER HONOUR: Yes, Ms Fox.
54 MS FOX: Your Honour, I was going to say I have had this conversation with Mr Fell. If I can put it this way. As I understand it, he probably won't be released from Fulham until later, much later today.
55 HER HONOUR: Yes.
56 MS FOX: At which time I think he'll be then able to get to Melbourne, and then tomorrow or Friday he'll be able to get from Melbourne to Mildura because he will be reliant on public transport. In those circumstances I have discussed with Mr Fell, and I note that we've got Ms Petz from Corrections, I wonder if Mr Fell might be able to make contact - that is, report by telephone, perhaps tomorrow or Friday with a view to then come in on Monday once he has been able to get to Mildura by public transport. It is quite a distance, as I understand it from Sale back to Melbourne, up to Mildura when one is reliant on public transport.
57 HER HONOUR: Well, that seems very sensible. I'll adjust my orders to take that into account . Mr Fell, once you are in Melbourne or wherever you're going to be, some time tomorrow if you could telephone the Mildura Corrections Office to let them know that you're intending to be there by 4 o'clock on Monday.
58 OFFENDER: I can do that, yeah.
59 HER HONOUR: If you do find yourself in Mildura on Friday for example you can go there, but if it's difficult you can go there by Monday.
60 OFFENDER: All right. Thank you, Your Honour.
61 HER HONOUR: Thank you. Yes, Mr Cameron.
62 MS FOX: Thank you, Your Honour.
63 MR CAMERON: Just a suggestion. It might be worthwhile if he attends a Corrections office in Melbourne at the counter and they can call Mildura and say he's attended, he's appeared.
64 HER HONOUR: All right.
65 MR CAMERON: That way he has physically attended just in case there's an issue with phones or anything. Just as a suggestion.
66 HER HONOUR: I'm going to leave it open for Mr Fell to do whatever is ‑ ‑ ‑
67 MR CAMERON: I'm not seeking that as part of the order.
68 HER HONOUR: No, all right.
69 MR CAMERON: I just thought that might be a suggestion.
70 HER HONOUR: Thank you, Mr Cameron.
71 MR CAMERON: Thank you.
72 HER HONOUR: Mr Fell, that was a suggestion by Mr Cameron that once you're in Melbourne you could go to a Melbourne Corrections office, and there's one very close to the city.
73 OFFENDER: Yeah.
74 HER HONOUR: And I'm sure you can find out that address, and then you wouldn't need to worry about getting to Mildura within any time frame but I'll leave it up to you.
75 OFFENDER: Okay. Yeah.
76 HER HONOUR: Given that you have to travel such distances I'll leave it open for you to do either of those two things.
77 OFFENDER: Okay, no worries. Thank you.
78 HER HONOUR: Ms Fox, is there anything further you would like to say?
79 MS FOX: Nothing further. Thank you, Your Honour.
80 MR CAMERON: Can I just confirm, Your Honour, was the one month gaol for the summary unlawful assault wholly concurrent with the 365 days?
81 HER HONOUR: Concurrent.
82 MR CAMERON: Wholly concurrent? Thank you.
83 HER HONOUR: All concurrent, yes. The Community Correction Order itself I've got in front of me now, I'm going to sign that now, Mr Fell, and then it will be faxed to the prison for you to sign and then it can be faxed back again to the court, all right?
84 OFFENDER: Okay, no worries.
85 HER HONOUR: Good.
86 OFFENDER: Thank you.
87 HER HONOUR: I think that's everything. Can I take this opportunity to thank counsel, Mr Cameron and Ms Fox, and your instructors as well for your assistance during the trial and up until now. Thank you.
88 MR CAMERON: If Your Honour pleases.
89 MS FOX: As the court pleases. Thank you, Your Honour.
90 OFFENDER: Thank you, Your Honour.
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