Director of Public Prosecutions v Feltrin
[2023] VCC 1142
•4 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
CR-22-01873
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL FELTRIN |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 3 July 2023 | |
DATE OF SENTENCE: | 4 July 2023 | |
CASE MAY BE CITED AS: | DPP v Feltrin | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1142 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of causing serious injury intentionally and persistent contravention of a family violence intervention order – serious family violence offending – criminal history – diagnosis of severe substance use disorder, anxiety and major depression – early plea of guilty – poor prospects of rehabilitation
Cases Cited:R v Cotham [1998] VSCA 111; Worboyes v The Queen [2021] VSCA 169; Portelli v the Queen [2015] VSCA 159; R v Hester [2007] VSCA 298
Sentence:4 years imprisonment with non-parole period of 2 years, 9 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Paul Feltrin, I propose to sentence you to a total of four years' imprisonment and set a non‑parole period of two years and nine months' imprisonment. I will declare your 414 days of pre‑sentence detention excluding today as time served under my sentence today.
Circumstances
2You pleaded guilty to a charge of causing serious injury intentionally and persistent contravention of a family violence intervention order. The circumstances of your offending are these.
3The prosecution summary sets out in detail the events leading up the assault and its aftermath.
Charge of Intentionally Causing Serious Injury
4You and Ms Hill[1] met in 2015. After two years you and she lived together at your home in Allans Flat[2]. About 18 months later the two of you moved to her home in Allans Flat and lived there.
[1] A pseudonym.
[2] A pseudonym.
5On 16 May 2022 you and Ms Hill argued, and based on the evidence of neighbours you and she argued from about 7.17 pm until at least 9 pm. After 9 pm you assaulted her for a protracted period, possibly 45 minutes. She was severely injured. She now has no memory of her assault. Initially you denied assaulting her, maintaining it was someone else. Ultimately you admitted the assault.
6Your attack on Ms Hill was ferocious. You assaulted her in her bedroom. You threw things at her. You punched her many times. You held her around the head while punching her. You used a mallet to strike her to the head. These blows fractured her skull, causing bleeding around the brain. You struck her head, face, torso, and legs. There was severe soft tissue injuries, including to the scalp. The injury to the scalp required skin grafting. There were injuries to her frontal teeth. They may require complex and costly dental treatment. The injury to Ms Hills’ scalp needed skin grafts. A forensic physician, Jason Schreiber, considered without such treatment infection in the wound was probable and that it could prove fatal.
Charge of Persistent Contravention of a Family Violence Intervention Order
7On 18 May 2022 an interim family violence intervention order was made with you as the respondent. It contained the usual conditions preventing contact between you and Ms Hill. There was an exception relating to collecting your personal belongings.
8Despite the order you contacted or tried to contact Ms Hill on many occasions. On 5 July 2022, three times on 6 July 2022, with the last of those calls lasting four minutes, on 8 July 2022 for 10 and a half minutes, on 11 July 2022 for almost 11 minutes, twice on 13 July 2022, with the second call lasting 12 minutes, on 15 July 2022 for 2 and a half minutes, on 18 July for about five minutes, 22 July for 12 minutes, 26 July for 11 and a half minutes, 30 July for 10 minutes, 1 August, two calls each lasting 12 minutes, 4 August for nine minutes, 7 August for 12 minutes, 9 August for 12 minutes, 12 August for 12 minutes, and 19 August for 12 minutes.
9The dispute between Ms Hill and Ms White[3] had been a recurring theme in these conversations. In the last case, that is 15 August 2022, you make threats about Ms White, including 'I'll fucking get her killed', and there are five other calls made by you to Ms Hill, 18 August for 12 minutes, three times on 19 August, two of the calls lasting 12 minutes, twice on 22 August for 12 minutes and 3 and a half minutes. Using the name Felicity Smart[4], you tried to speak to Ms Hill or spoke to her twice.
[3] A pseudonym.
[4] A pseudonym.
Criminal history
10
Between 21 May 2002 and 9 August 2018 you have appeared in criminal courts in the state of New South Wales on six occasions and have been found guilty or convicted of 12 charges. You have never been sentenced to a term of imprisonment. The most significant sentence was imposed in the
Magistrates' Court at this venue of a community correction order of two years' duration with conditions as to supervision, drug and alcohol dependency, mental health treatment, and programs to reduce reoffending. This order related to six charges, including damaging property, threatening to inflict serious injury, and carrying a handgun.
Personal
11You are now 40. Your mother left your father when you were very young owing to his abuse of you. You were raised by your mother, who re‑partnered when you were seven, and they had a son, your half‑brother. You did not get along with your stepfather and felt 'the odd person out' in the family.
12Your secondary schooling was turbulent. By Year 11 you were asked to leave. Although you dreamed of becoming a marine biologist, leaving school brought that dream to an end. After school you started and completed an apprentice as a chef. Between the ages of 17 and 35 you worked 'fairly consistently' as a chef. You loved your work as a chef.
13At 14 you were introduced marijuana, which has been used consistently until you entered custody. At about the same time you started drinking alcohol. Heavy drinking was a culture in your family.
14At 19 you wanted to stop using marijuana and drank more to overcome the effects of withdrawal. Your alcohol consumption persisted at a heavy level. As you tell the psychologist, you 'went to work hungover all the time'. You lost your licence at 19 and 29 through drink driving.
15At 21 you started using amphetamines as well other illicit substances recreationally. Between 36 and 38 you 'backed right off' using alcohol and substances.
16To overcome a thyroid issue, you were prescribed Valium. Unfortunately, you developed an addiction to Valium, which lasted 18 months. With the help of a general practitioner, you started withdrawing from Valium.
17Although you worked well until 35 even though using marijuana and drinking alcohol, you started using methylamphetamine, which caused a decline in your mental health. You left your job, having lost motivation for that particular job and for cooking generally. From the age of 35 you were unemployed for three or four years.
18While in custody and apart from Ms Hill, you have lost the support of your family. Your mother is no longer in contact with you. Your brother is ashamed of you.
Psychologist
19Kyla Jonkers is a forensic psychologist. At the request of your solicitor, she interviewed you on 27 March 2023, and Dr Jonkers took a dental history from you. Much of what she recorded in her report appears in these sentence remarks.
20Based on your history, she diagnosed you as suffering from a severe form of a substance use disorder. Because you are in prison, this disorder is in remission. However, she considers you need intensive drug and alcohol support after your release in order to avoid a relapse. Dr Jonkers considered you have been significantly depressed and took substances to lessen its effects.
21At present, she appears to diagnose you as suffering anxiety at a level of a disorder, and your anxiety is a low‑moderate level. She traces this anxiety following your mother forming a new relationship by either causing anxiety or making worse an existing anxiety. She does diagnose you as suffering from a recognised disorder, major depression, at a severe level. She recommends regular psychiatric counselling once sentenced.
22Dr Jonkers sees your offending behaviour as a product of your use of substances to reduce your distress. Your use of substances has severely reduced your ability to make sound judgments and decisions and increased your vulnerability to engage in the offending behaviour. She foresees a high risk of harm to yourself and others while in the community unless managing your mental health issues increases the likelihood of reducing your use of substances. If you resume your use, then your risk of doing family violence is significantly escalated.
Family Violence Offending
23Dealing with the charge of causing serious injury intentionally first, the incident was preceded by a lengthy period of argument where you and Ms Hill were substance affected. The assault itself was protected. You inflicted many injuries on Ms Hill.
24Through your plea you admitted an intention to cause serious injury to Ms Hill. The serious injury element is satisfied by the life‑threatening aspect of her injuries. This is confined to the injury to her scalp and surprisingly does not concern the bleeding on her brain. It appears from the material that I have read that the bleeding ceased and dissipated through the use of medication. The contingency of Dr Schreiber renders the serious aspect less significant than in other cases. This is so notwithstanding the multiplicity of skeletal and soft tissue injuries she suffered.
25Over the years parliament and the courts have sought to deal with the scourge of family violence. The state had a royal commission into family violence. In 2016 it delivered its report, containing many recommendations. Since then the state has taken steps to implement those recommendations. The state has spent and will spend large amounts of money doing so. In the criminal justice system it is incumbent upon sentencing judges or magistrates to deter offenders or likeminded offenders from committing acts of family violence. What constitutes family violence is broadly defined in the relevant legislation. I am concerned here with acts of physical violence.
26Dealing with the second charge, persistent contravention of a family violence intervention order, the Court of Appeal has repeatedly stressed the need to sentence to deter offenders from contravening such orders. As far back as 1998 Justice of Appeal Charles said in R v Cotham[5],
'Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders'.
[5][1998] VSCA 111 [14].
27Parliament introduced the offence of persistent contravention to recognise an aspect of family violence. Your contact with Ms Hill is a classical instance of such persistent contravention over a short period.
28With this charge it is described as a rolled‑up charge. Because your contraventions of the family violence intervention order involved a period longer than 28 days, the prosecution with your consent have rolled two occasions of your persistent contravention into a rolled‑up charge.
Prospects of Rehabilitation
29Your counsel submitted your prospects of rehabilitation are good. He relies upon passages from Dr Jonkers' report. Her report does not really explain why you attacked Ms Hill in such a savage manner. To Dr Jonkers you have suffered from anxiety and depression for many years. You have used substances to alleviate their symptoms. The effects of your use of substances severely reduces your ability to make appropriate judgments and decisions. It is your willingness to self‑medicate which lies at the heart of your offending past and future. Unless successfully treated, according to Dr Jonkers, you are a high risk of endangering yourself and others, including those persons with whom you have an intimate relationship.
30I would not assess your prospects of rehabilitation as good. Those prospects depend upon the ability of persons dealing with your mental, drug and alcohol issues so that you will not reoffend in the same way again.
31In 2018 you were placed on a two‑year community correction order. All I can say of the order is you completed it, your criminal history does not record any contravention proceeding, and your attack on Ms Hill occurred less than two years after the end of the order and saw you so affected by substances.
32You have undertaken whatever courses have been available to you while in custody. They have been limited because of the COVID‑19 restrictions and you contracting the virus while in custody.
33Doctor Jonkers says if you do not abstain from alcohol and substances and without adequate social support your prospects of rehabilitation are quite low and the passage of time alone is not going to reduce your risk.
34I find it interesting that generally psychologists do not consider the deterrent effect of sentences on rehabilitation. Perhaps they are not asked.
35As a result of my sentences, for the first time you will receive a sentence of imprisonment of very significant dimensions. This alone should act as a deterrent against future similar behaviour. It may encourage you along the path of active rehabilitation. Nevertheless, at best, your prospects of rehabilitation are uncertain at this stage. Much depends upon the success of what can be achieved while you are in custody and after leaving custody, especially through professional help.
36I do not consider the sentencing purposes of the need for special deterrence and the protection of the community from you are lessened because of your prospects of rehabilitation. It is agreed the other sentencing purposes of general deterrence, denunciation, and just punishment are relevant.
37It is worth pointing out at this stage that the maximum penalties for the charges are:
(a) causing serious injury intentionally, 20 years' imprisonment,
(b) persistent contravention of a family violence intervention order, five years' imprisonment.
Guilty pleas
38You were charged on 17 May 2022. You indicated an intention to plead guilty to these charges on 13 October 2022 at the third committal mention hearing. This was after a further 23 charges had been laid on 2 September 2022. In terms of timing, your pleas were made at the earliest reasonable opportunity.
39Your guilty pleas are some evidence of your remorse for your offending. They show you accept responsibility for your offending. They have the practical effect of paving the way for other cases which require a jury trial. They save the time and expense of a jury trial. Such trials are elaborate affairs involving the assembling of a jury, the calling of witnesses, and the lengthy process of the hearing itself. Pleas giving such benefits to the criminal justice system usually receive a discount on sentence.
40There is another benefit. Even though the profound restrictions imposed during the pandemic are a thing of the past, some effects of the virus still hamper the courts. In Worboyes v The Queen[6] the court spoke during the height of the pandemic. The extremes of those circumstances have passed, but, as I say, there are still effects to the proper functioning of this court, and a plea of guilty still merits an enhanced discount on the sentence which would otherwise have been imposed.
[6][2021] VSCA 169.
Current sentencing practices
41As to current sentencing practices, your counsel referred me to the sentencing appeal in Portelli v the Queen[7] while pointing out the factual differences between your case and that of Mr Portelli. The prosecutor drew my attention to a passage from the judgment of Justice of Appeal Neave in R v Hester[8]:
'It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue, many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Justice of Appeal Simpson in R v Glen that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution'.
[7] [2015] VSCA 159.
[8][2007] VSCA 298.
42Pausing there, there is no victim impact statement, and despite the efforts of the police the victim is not prepared to make such a statement, and despite Ms Hill’s present attitude and in light of your violent behaviour towards her I doubt your relationship will last. It is not a question of her leaving a violent relationship because you are in custody, it is a question of her realising your capacity for such violence towards her.
43These events and your criminal history points to you being a violent person. A psychologist does not explain your violence except in terms of impaired judgment and reasoning. In terms of rehabilitation, perhaps a lengthy and intense family violence program may be of benefit to you.
Sentence
44On Charge 1, a charge of causing serious injury intentionally, I sentence you to three years and nine months' imprisonment.
45On Charge 2, a charge of persistent contravention of a family violence intervention order, I sentence you to nine months' imprisonment.
46The sentence on Charge 1 is the base sentence. Three months of the sentence on Charge 2 will be served cumulatively upon the sentence on Charge 1. The total effective sentence is four years' imprisonment. I will set a non‑parole period of two and three‑quarter years' imprisonment.
47I declare the 414 days of your pre‑sentence detention as time served under my sentences today. The 414 days exclude today.
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48If you had pleaded not guilty to these charges but then found guilty after a trial by jury, I would have sentenced you a total effective sentence of six years' imprisonment.
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