Director of Public Prosecutions v Field (a pseudonym)
[2018] VCC 1550
•21 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EVAN FIELD (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 18 September 2018 |
| DATE OF SENTENCE: | 21 September 2018 |
| CASE MAY BE CITED AS: | DPP v Field (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1550 |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Dangerous driving whilst pursued by police – theft - damaging property - make threat to kill - cause injury intentionally - common assault - attempted aggravated burglary - commit indictable offence whilst on bail - contravene Family Violence Intervention Order - use unregistered vehicle - unlicensed driving - driving whilst disqualified - trespass
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 3 years and 10 months’ imprisonment, 2 years and 6 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1Evan Field[1], you have pleaded guilty on indictment to one charge of dangerous driving while pursued by police, one charge of theft, two charges of damaging property, eight charges of making a threat to kill, one charge of causing injury intentionally, three charges of common assault and one charge of attempted aggravated burglary.
[1] Evan Field is a pseudonym
2The maximum penalties for these offences are as follows:
- for dangerous driving while pursued by police - 3 years' imprisonment;
- for theft - 10 years' imprisonment;
- for damaging property - 10 years’ imprisonment;
- for make threat to kill - 10 years' imprisonment;
- for causing injury intentionally - 10 years' imprisonment;
- for common assault - 5 years’ imprisonment;
- for attempted aggravated burglary - 20 years’ imprisonment.
3You have also pleaded guilty to 11 uplifted summary charges comprising five instances of committing an indictable offence whilst on bail (Summary Charges 12, 14, 17, 33 and 43); two instances of contravene a Family Violence Intervention Order (Summary Charges 20 and 23); three road traffic offences, being use an unregistered vehicle, unlicensed driving and driving whilst disqualified (Summary Charges 45, 44 and 39); and one charge of trespass (Summary Charge 51).
4The maximum penalties for these summary offences are:
- for drive whilst disqualified: for a first offence 30 penalty units or four months' imprisonment and for any subsequent offence 240 penalty units or two years' imprisonment;
- for contravene a Family Violence Intervention Order: two years’ imprisonment and/or 240 penalty units;
- for commit an indictable offence whilst on bail: 30 penalty units or three months’ imprisonment;
- for trespass: 25 penalty units or six months' imprisonment;
- for unlicensed driving: 25 penalty units or three months' imprisonment;
- for use unregistered vehicle: for a first offence 25 penalty units and for any subsequent offence 50 penalty units.
5You have a history of previous convictions for similar and other offending to which I will refer in more detail later.
6The circumstances of your offending are more particularly set out in the prosecution summary for plea tendered as Exhibit A, which I accept as an accurate summary for sentencing purposes.
7You and the primary victim were in a relationship at the time of the offending. She was 25 years old at the time. I will refer to her hereafter in these sentencing remarks as your “partner”.
8Your offending took place over six separate dates between 22 October 2017 and 9 January 2018. The circumstances in brief form are as follows:-
9At approximately 3 am on 22 October 2017, police were investigating a vehicle with a broken headlight. They followed it to a shed. At this point the vehicle, which you were driving, began to slowly move towards the police with its lights off. You then sped towards the police with your lights turned on. Police had to turn their vehicle away to avoid a collision.
10You then sped towards the Murray Valley Highway. Your car had no registration plates. Once on the highway, you drove with the headlights off and on the wrong side of the road as the police pursued you. This conduct is represented by Charge 1: dangerous driving while pursued by police.
11Later that morning, you were observed as the driver of a vehicle which had entered the Nyah Oasis Service Station. Petrol was taken from the business and you drove off without paying. This conduct is represented by Charge 2: theft.
12At the time of driving you were disqualified from driving, which gives rise to Summary Charge 39: driving whilst disqualified.
13On Wednesday 13 December 2017, your mother attended your home. At the time, your mother was named as the Affected Family Member in a Family Violence Intervention Order. Your mother accidentally spilt some soft drink and you abused her. When she remonstrated with you, you again abused her, picked up a wooden pedestal and threatened to smash her car.
14You both ran to the car, bumping into each other on the way. Your mother got into the car and locked the doors. You, having put the pedestal back into the house, ran to the car and, when you could not open the door, punched a side panel of the car causing a minor dent to the vehicle. This conduct is represented by Summary Charge 20: contravene a Family Violence Intervention Order, and Charge 3: damage property.
15For a period of about three weeks before 19 December 2017, you had been observed using ‘ice’ and had become aggressive and violent. On 19 December 2017 you were home with your partner and a male acquaintance. Your partner became angry because you and he were going to use ice in the home. You subsequently did use ice and became demanding of your partner.
16This escalated to you throwing punches at least 15 times to her head with your fists. You yelled at her that you were going to kill her, telling her that she was a "dead bitch". Your partner “absolutely believed” that you “would carry through with [your] threats”. This conduct is represented by Charge 4: threat to kill.
17As your partner attempted to leave you punched her to the mouth which caused her to fall backwards, hitting her head on the couch. The impact of your punch caused her bottom teeth to penetrate her lower lip, causing it to bleed. Your partner lost consciousness. This conduct is represented by Charge 5: causing injury intentionally.
18You then tried to assist your partner, saying you did not mean to hurt her badly. You and the other male eventually left the premises.
19Shortly afterwards, police arrived following a report of a possible domestic dispute. Your partner said that she had fallen over. Police were unable to find any other persons, took photographs of the injury and left.
20At the time of this offending you were on bail in relation to earlier charges. This conduct gives rise to Summary Charge 12: commit an indictable offence whilst on bail.
21On 6 January 2018, you again offended against your partner. You argued, you became angry, she attempted to leave and you punched her to the head a few times. This conduct is represented by Charge 6: common assault.
22She told you to leave the house. Due to the commotion, neighbours came to the street to observe the activity. One neighbour told you to leave your partner alone. You responded "I'll come up there and give you a flogging".
The neighbour asked your partner to come to his side of the street. You said to your partner "If you go up there, I'll fucking kill ya". This conduct is represented by Charge 7: make threat to kill.23As your partner moved towards the neighbour's position, you called her a "bitch" and a "slut". As she got closer to the neighbour, you called out "Right, that's fucking it. You're all fucked. When I get back, I'll kill the fucking lot of youse". This conduct gives rise to Charge 8: make threat to kill.
24You got onto a motorbike and rode away.
25When you returned, another neighbour observed you demanding your partner give you her bank card. You then struck her with an open hand to the back of her head, then punched her to the head with your right fist. This conduct is represented by Charge 9: common assault.
26At around 7pm to 8pm later that day, your partner was with her Aunt and Uncle at their house. At some stage you entered the residence through the front door uninvited. This conduct is represented by Summary Charge 51: trespass.
27As you entered, you began yelling at your partner. You accused her of having threatened your daughter. You were observed to be “extremely agitated … [your] face really red”.
28Your partner's Aunt stood in between you and your partner and put her hands up to avoid provoking you.
29You were trying to reach your partner and said to her "I'm going to smash you cunt". You then punched her face. You were told to leave. You responded by punching your partner's jaw which caused her to fall to the ground. This conduct is represented by Charge 10: common assault.
30Her Aunt told you "That's enough". You said that you were “coming back with more people and weapons”. You told your partner that you were going to be bringing a gun and you were going to shoot her. This conduct is represented by Charge 11: make threat to kill.
31You then ran out of the house. As you were leaving, you said to your partner's Aunt, "I'm gonna come back for you and kill you too". This conduct is represented by Charge 12, make threat to kill.
32You then did a burnout with your motorbike and drove away.
33Your partner and her Aunt and Uncle later attended at the local Police Station and provided statements to police in relation to the offending.
34You were on bail at the time of committing the above indictable offences. This conduct gives rise to Summary Charge 43: commit an indictable offence whilst on bail.
35At approximately 9am on the following day, Sunday 7 January 2018, your partner was again at her Aunt and Uncle's home. At this time, you called your partner's mobile phone approximately ten times in a row.
36Her Aunt picked up two of your phone calls. When she picked up the first phone call, there was a delayed silence of about three to four seconds. Her Aunt recognised your voice saying "You're in bed you fucking black slut". You told the Aunt to put your partner on the phone. The Aunt said that “if you were going to speak like that then why would [she]?". You stated "I don't give a fuck about youse but I love [partner]". The Aunt said "If you loved her, you wouldn't have given her two black eyes". You replied "I'm going to do the same to you and then I'm going to kill you." This conduct is represented by Charge 13: make threat to kill.
37The Aunt subsequently hung up the phone.
38You call the Aunt back straight away and said "My mother's coming to pick me up and she hates you and we're both going to come around and fuck you up". The Aunt then hung up the phone and provided a further statement to police indicating that your conduct made her "feel worried about what [you] said in the phone calls" and that she was "concerned for [her] safety".
39You were on bail at the time of committing the above indictable offence.
This conduct gives rise to Summary Charge 17: commit an indictable offence whilst on bail.40At approximately 3am on Tuesday 9 January 2018, your partner was about to go to sleep at her own residence. At the time your partner's friends, Robert Fisher[2] and another male, were also at the address. At some stage, your partner suddenly heard you at the front window saying "How could you do this to me?". You stated that you were going to kill Fisher. This conduct is represented by Charge 14: make threat to kill.
[2] Robert Fisher is a pseudonym
41You then kicked the front door of the residence with your foot, which caused the door frame to break. Fisher put his foot against the door to hold it shut in order to prevent you from entering the residence. Fisher told you to leave as you were scaring your partner. You then stated that you were going to kill your partner. This conduct is represented by Charge 16: make threat to kill.
42At some stage, you left on your motorbike.
43Whilst your partner was on the phone to police, you returned to the premises with a brick. You threw the brick at the front window and the front door. This conduct is represented by Charge 17: damage property.
44You said "How can you do this? I loved you". Fisher kept telling you to "Fuck off".
45You took a large hunting knife, which was approximately 40cm long, from your motorbike and started waving it around. You told Fisher that you were going to stab him, whilst poking the knife through the broken window. You yelled that you were going to kill Fisher. You also tried to punch Fisher through the window, which nearly caused his face to be hit.
46At one stage, it appeared to your partner that you were attempting to “ride the bike at the front door”. She took a pair of scissors to protect herself.
47A neighbour approached you but saw that you had a large black knife in your hand, so he backed away. He observed you smashing the glass out of the door with the knife. This conduct is represented by Charge 15: attempted aggravated burglary.
48Police attended the scene shortly afterwards. As they approached the residence, one of the policemen observed you to be lying on the ground outside the property. You quickly ran towards your motorbike and drove away onto the highway and avoided apprehension by police.
49You were not the holder of a Victorian motorcycle driving licence at the time of the offending. This conduct is represented by summary charge 44: unlicensed driving.
50The motorbike that was driven by you was not registered under the Road Safety Act 1986 at the time of the offending. This conduct is represented by summary charge 45: use unregistered motor vehicle on a highway.
51Investigators located and seized a 40 cm kitchen knife that was left outside the property and took photographs of the scene.
52You were on bail at the time of committing the above indictable offences. This conduct gives rise to Summary Charge 33: commit indictable offences whilst on bail.
53At approximately 12.30pm later that day, police attended your mother's residence in an attempt to locate you. Police were initially unable to ascertain whether there was anybody present at the house.
54At 12.50pm, a resident standing on your mother's street called out to investigators that he had seen a male running from the house. Closed-circuit television footage located at the residence revealed that you had arrived and left the address on 9 January 2018. As you were within 200 metres of your mother’s current address at that time, you were in contravention of the final Family Violence Intervention Order dated 2 September 2016. This conduct is represented by Summary Charge 23: contravene Family Violence Intervention Order.
55I now turn to your personal circumstances.
56You are now aged 26, having been born on 30 May 1992, and you were 25 at the time of this offending from October 2017 to January 2018.
57Your parents separated when you were an infant and you had an unstable upbringing characterised by violence both to you and to your mother. You were raised by your mother who had several partners subsequent to your father. You have several half-siblings who have three different fathers. You have had negligible contact with your father beyond a short unsuccessful period when you attempted to live with him when you were 15.
58You struggled with concentration at school and were diagnosed with attention deficit hyperactive disorder. You believe several other members of your family have been similarly diagnosed.
59You left school in Year 10 without sitting the exams. Thereafter, you have been employed for about half the time since you left school. Prior to the current offending you had secured an apprenticeship doing repairs and spray-painting at a crash repair centre.
60Whilst being on remand in custody, you have been working in the metal factory and have completed numerous employment and rehabilitation-related short courses.
61Since you were 15 you have indulged in regular illicit drug use, possibly initiated as a form of self-medication for its therapeutic effect on your mental health conditions. After time, you became a chronic user of increasing quantities.
62Your mental health is reflected in two medical reports received dated 6 March and 30 June 2015 respectively. You have had numerous contacts with mental health services in the past and have had a number of diagnoses such as bipolar effective disorder, bipolar disorder and anti-social personality disorder. You have been on a variety of medications including lithium, Epilim, Seroquel, Olanzapine and Pristiq. It is recorded in your history that you have always had trouble managing your temper and impulsive behaviour when you are stressed, and you often lash out at these times. The summary diagnosis was "mental and behavioural disorders due to substance use and anti-social personality structure".
63A report from Mr Warren Simmons, psychologist, was tendered on your plea. In Mr Simmons’ opinion, you present with longstanding mental health and drug addiction problems in association with a background context of anxiety and ADHD.
64Mr Simmons further opines that your offending behaviour is in part related to your problems with anger and your use of drugs impacting on decision-making which has led to further impulsive action. Therapeutically, you would benefit from referral to psychiatric treatment to determine whether you may be suitable for treatment with medications that are not stimulant-based as well as other psycho-therapeutic programs.
65Mr Simmons concluded by observing that much of your behaviour appears to be driven by your underlying state, and without appropriate intervention you are likely to be before the courts for similar types of offences.
66Your mother attended court at the time of your pleas and has provided a written account of some historic background, your struggle with mental illness, your remorse, your apology to her as one of your victims and the commitment you have shown to rehabilitative courses whilst in custody.
67You have an extensive criminal record in the Magistrates' Courts since 2010. From that time you have persistently offended with offences of violence, contraventions of Family Violence Intervention Orders including assaults on females, burglary, theft, damaging property and serious road traffic offences.
68You have received community correction orders designed to assist you with your mental health and drug issues, and they have been breached. You finally received a six-month gaol sentence together with a community correction order in February 2016. This sentence did not deter you from further serious offending for which you were convicted in August 2017.
69It also did not deter you from the current offending: I note that the current series of offending commenced within three months of your last convictions. The offences on that occasion closely parallel the offending for which you are before the court today.
70The evidence suggests that your prospects of rehabilitation are low. Because of your age and efforts made whilst in recent custody, I accept that they are not extinguished. You will need a great of assistance as well as real commitment by yourself to turn your life around.
71The violent acts against the victims, particularly your partner at the time, are examples of serious offending. The circumstances present a picture of a sustained period of repeated threats to kill, assault, damage to property and dangerous road traffic offending. The fact of possessing a large hunting knife at the time of the threats and acts at the complainant’s home on 9 January presents a picture of a terrifying ordeal and adds a further dimension to that offending. Principles of punishment, protection of the public, denunciation and both specific and general deterrence must receive emphasis in sentencing considerations.
72In mitigation, I take into account the matters referred to by your counsel, including:
· your plea of guilty both for its utilitarian value as well as expression of remorse, and your further expressions of remorse as evidenced by your mother's letter and your letter to the court;
· your traumatic and dysfunctional early life;
· that your offending was committed in the context of a longterm addiction to alcohol and drugs;
· your longstanding mental health condition which makes you more vulnerable to explosive uncontrolled outbursts of temper;
· your commitment to rehabilitation whilst in custody; and
· the continuing support you have from your mother.
73Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on one serious violent offence charge, I am required on the serious violent offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
74This means that the sentencing task in respect of Charges 7, 8, 11 to 14 and 16 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose, sentences may be imposed longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.
75Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to the serious violent offence charges the sentences I impose are to be served cumulatively. I note here that the Crown did not call for the cumulation contemplated by s.6E of the Sentencing Act. The Crown did, however, emphasise that the protection of the community was important in the sentencing discretion and I have taken into this consideration in formulating the sentence that I have imposed.
76Pursuant to s.6F of the Sentencing Act, I direct that it be entered into the records of the court that you are sentenced as a serious violent offender in respect of Charges 7, 8, 11 to 14 and 16.
77Mr Field, would you please now stand?
78On Charge 1 of dangerous driving whilst pursued by police, you are convicted and sentenced to six months' imprisonment. Any licence or permit to drive held by you is cancelled and you are disqualified from obtaining a further one for a period of two years from today.
79On Charge 2 of theft, you are convicted and sentenced to three months' imprisonment.
80On each of Charges 3 and 17 of damaging property, you are convicted and sentence to three months' imprisonment.
81On each of Charges 4, 7, 8, 11, 12, 13, 14 and 16 of make threat to kill, you are convicted and sentenced to six months' imprisonment.
82On Charge 5 of causing injury intentionally, you are convicted and sentenced to one year’s imprisonment
83On each of Charges 6, 9 and 10 of common assault, you are convicted and sentenced to six months' imprisonment.
84On Charge 15 of attempted aggravated burglary, you are convicted and sentenced to two years' imprisonment.
85On each of the transferred Summary Charges 23 and 20 of contravene a Family Violence Intervention Order, you are convicted and sentenced to three months' imprisonment.
86On each of the transferred Summary Charges 12, 14, 17, 33 and 43 of committing an indictable offence whilst on bail, you are convicted and sentenced to one month’s imprisonment.
87On transferred Summary Charge 44 of unlicensed driving, you are convicted and fined $250 dollars.
88On transferred Summary Charge 45 of use an unregistered vehicle on a highway, you are convicted and fined $250 dollars.
89On transferred Summary Charge 39 of driving whilst disqualified, you are convicted and fined $500 dollars.
90On transferred Summary Charge 51 of trespass, you are convicted and sentenced to one month’s imprisonment.
91Charge 15 is the base sentence.
92I direct that six months of the sentence imposed on Charge 5, two months of each of the sentences imposed on Charges 7, 8, 11, 12 and 14, three months of the sentence imposed on Charge 1 and one month of each of the sentences imposed on Charges 6, 9 and 10 be served cumulatively on the sentence imposed on Charge 15 and on each other. The sentences are otherwise concurrent.
93The total effective sentence is three years and ten months' imprisonment.
94I direct that you serve a minimum period of two years and six months’ imprisonment before eligibility for parole.
95Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 255 days, not including today, be reckoned as time already served under this sentence and I direct the fact of this declaration and its details be noted in the records of the court.
96Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed over all charges is five years' imprisonment with a minimum period of three years and six months to be served before eligibility for parole.
97At the plea hearing, the Crown sought a disposal order under s.77(1) of the Confiscation Act 1997 and I have made that order today upon being satisfied that the property is of negligible value and used in connection with the offences.
98Is there anything else from either counsel?
99MR CORDY: No, Your Honour.
100MS MILLAR: No, Your Honour.
101HIS HONOUR: Thank you. I will just leave the court while the other matter gets ready.
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