Director of Public Prosecutions v Fitzpatrick (a pseudonym)
[2023] VCC 2156
•21 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON FITZPATRICK (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2023 | |
DATE OF SENTENCE: | 21 November 2023 | |
CASE MAY BE CITED AS: | DPP v Fitzpatrick (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2156 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly causing injury; intentionally causing injury; common assault; contravention of family violence intervention order intending to cause harm or fear; contravention of family violence intervention order; wilful damage; entering a private place without authority or excuse; committing indictable offence on bail; contravene conduct conditions of bail
Legislation Cited: Crimes Act 1958 (Vic) s 18; Summary Offences Act 1996 (Vic) ss 9(1)(c), 9(1)(e), 23; Family Violence Protection Act 2008 (Vic) ss 123, 123A(2); Bail Act 1977 (Vic) ss 30A(1), 30B
Cases Cited:Filiz v R [2014] VSCA 212; DPP v Herrmann [2021] VSCA 160; Bugmy v R [2013] HCA 37; DPP v Smith [2019] VSCA 266 [35]
Sentence: Two years and 10 months’ imprisonment with a non-parole period of 22 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For the Accused | Mr S. Ranjit | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
Pleas and maximum penalties
1Tyson Fitzpatrick,[1] you have pleaded guilty to:
(a) one charge of recklessly causing injury, an offence which carries a maximum penalty of five years’ imprisonment;[2]
(b) one charge of common assault, with a maximum penalty of five years’ imprisonment;[3]
(c) one charge of causing injury intentionally, with a maximum of ten years’ imprisonment;[4] and
(d) one charge of contravening a Family Violence Intervention Order intending to cause harm or fear, with a maximum of 600 penalty units or five years’ imprisonment or both.[5]
[1]A pseudonym.
[2]Crimes Act 1958 (Vic) s 18 (‘Crimes Act’).
[3]Summary Offences Act 1996 (Vic) s 23 (‘Summary Offences Act’).
[4]Crimes Act (n 1) s 18.
[5]Family Violence Protection Act 2008 (Vic) s 123A(2).
2You have also agreed to have uplifted, and pleaded guilty to, the related summary offences of:
(a) contravention of a Family Violence Intervention Order, with a maximum penalty of 240 penalty units or two years’ imprisonment or both;[6]
[6]Ibid s 123.
(b)
committing an indictable offence on bail, which carries a maximum of
30 penalty units or three months’ imprisonment;[7] (this charge I note encompasses two events);
[7]Bail Act 1977 (Vic) s 30B (‘Bail Act’).
(c) wilful damage, with a maximum of 25 penalty units or six months’ imprisonment;[8]
[8]Summary Offences Act (n 2) s 9(1)(c).
(d)
entering a private place without authority or excuse, with a maximum of
25 penalty units or six months’ imprisonment;[9] and
(e)
contravening certain conduct conditions of bail, with a maximum of
30 penalty units or three months’ imprisonment.[10]
[9]Ibid s 9(1)(e).
[10]Bail Act (n 6) s 30A(1).
Facts giving rise to the offending
3A prosecution opening dated 4 October 2023 was tendered on your plea and forms the factual basis for this sentence. That document is attached to and forms part of these reasons, and I will refer to parts of it in summary form here.
4By way of background, a full ‘no-contact’ Family Violence Intervention Order was granted against you on 21 December 2020 for the protection of Ms Lilian Robey,[11] with whom you had been in an intimate relationship for about two years at the time of your offending. A final order permitting safe contact, which was for a duration of two years, was then made on 1 March 2021.
[11]A pseudonym.
Incident one – 16 June 2022
5In the late afternoon of 16 June 2022, you drove to meet with Ms Robey after she had discharged herself from the psychiatric unit at Frankston Hospital. You drove her to your friend, Andrew Wynter’s,[12] home in Rosebud, where you stayed for about half an hour. You then drove towards Rye with Ms Robey as your passenger.
[12]A pseudonym.
6As you drove, you began talking to Ms Robey about a mutual friend, who you refer to as ‘Scotty’; you accused her of being intimate with him.
7You became aggressive; you called Ms Robey a ‘slut’. Ms Robey, feeling unsafe and fearing that you were about to become violent, opened the passenger door and attempted to get out of the car. You stopped the car, grabbed Ms Robey by her hair and pulled her back into the car. You then punched her to the back of her head with a closed fist multiple times. Ms Robey did not say anything and remained in the car. You continued driving.
8About ten minutes later, you began to get angry again. You raised your voice and accused Ms Robey of sleeping with other people, before punching her to her right eye with a closed fit, causing her to feel pain and her eye to bruise and swell instantly. (This conduct gives rise to Charge 1 – recklessly causing injury, and summary charge 10 – contravention of a family violence intervention order.)
Incident two – 17 June 2022
9At about 5:00 pm the next day, on 17 June 2022, Ms Robey took a taxi to an address in Rosebud. This was the home of Jack Hutchison,[13] who Ms Robey knew as ‘Jackie’ and who was a good friend of yours. You were at the address when Ms Robey arrived.
[13]A pseudonym.
10At about 8:30 pm, you and Ms Robey left to buy dinner from a nearby Chinese restaurant. You returned to the address and ate with Mr Hutchison. At some point during dinner, you saw Mr Hutchison brush past Ms Robey, making contact with her leg. You became agitated, picked up a container of rice and threw it at Ms Robey. Ms Robey said “I’m not doing this”, or words to that effect, and got up to leave.
11You grabbed Ms Robey by her left arm and threw her into the front door. When she turned around to face you, you punched her to her face with a closed fist about six or seven times. She tried to cover her face with her arms and kick you away. You grabbed Ms Robey by the shirt with one hand and pulled her back into the living room. With your other hand, you continued to punch Ms Robey to the head with a closed fist. (This gives rise to Charge 2 – common assault and Charge 4 – contravention of a family violence intervention order intending to cause harm or fear.)
12You pulled Ms Robey toward the couch in the living room, pushed her onto it and positioned yourself on top of her. You kept hitting her as she screamed, kicked and tried to push you away. Mr Hutchison also tried to pull you away from Ms Robey but was unsuccessful.
13You put your arms on top of Ms Robey and both of your hands around her neck. You strangled her until she lost consciousness. Ms Robey would later recall being in shock at the time and losing consciousness almost straight away. (This gives rise to Charge 3 – intentionally causing injury, and Charge 4 – contravening a family violence intervention order intending to cause harm or fear.)
14Ms Robey awoke at about 2:00 am the next morning, still on the couch. You had left the address. Mr Hutchison was with her. He was crying and told Ms Robey that he had stopped you from assaulting her and that he was worried about her face because it was swollen and bruised. Ms Robey had bruising to her left eye, her chest, her arms and legs.
15Ms Robey stayed with Mr Hutchison until daybreak, and then walked to your grandparents’ address in Rosebud where you were living. She stayed there with you for the night. The two of you did not talk about the incident much, but when you did, you told Ms Robey it was her fault.
Incident three – 17 June 2022
16
Shortly after Ms Robey lost consciousness on 17 July 2022, you left the home of
Mr Hutchison and went to the Good Start Early Learning Centre in Rosebud, where you jumped over the rear fence of the property into the backyard. (This gives rise to Summary Charge 14 – entering a private place without authority or excuse)
17At around 4:00 am on 18 June 2022, police officers were called to the Good Start Early Learning Centre. They saw you behind the fence at the back of the property, naked, and appearing agitated and substance effected. You were taken to the Rosebud Police Station before being escorted back to your grandparents’ address.
18Staff from Good Start Early Learning Centre would later report damage to multiple fence palings and the roof of a shed at the rear of the property. This damage was caused by you when you entered the property. (This gives rise to Summary Charge 13 – wilful damage)
19At the time you were found by police, you were subject to and in breach of a condition of bail requiring you not to leave your address in Rosebud between the hours of 10:00 pm and 6:00 am. (This gives rise to Summary Charge 15 – contravention of conduct conditions of bail)
Investigation, arrest and interview
20At around 11:00 am on 22 June 2022, police attended Mr Wynter’s address in Rosebud to execute a warrant for his arrest. As they entered the house, police officers saw a man jump over the back fence of the property. A woman was found on the back deck also trying to flee but was restrained by police. She soon identified herself as Ms Robey.
21
Police officers saw that Ms Robey had a large bruise around her left eye and asked her what had happened. In response, Ms Robey said “I’m not charging him”.
Ms Robey later told police that you had caused the bruising to her eye, and gave an account of the circumstances of your offending more generally.
22Later that evening, Ms Robey attended the Royal Melbourne Hospital in Parkville where she underwent a number of tests. Medical staff noted that Ms Robey had pain in her right hand, her right knee and her left ankle. She had marked bilateral periorbital bruising, especially to her left eye, and generalised bruising to her upper chest, her left ankle, her right knee and to some of her fingers. She had a small cut and a painful lump at the back of her head, as well as mild pain to the left side of her nose. Ms Robey was given pain relief and diazepam for stress.
23You were arrested at about 10:30 am the next morning on 23 June 2022. You were taken to the Frankston Police Station where you participated in a recorded interview at about 12:45 pm. You made some admissions (to the intervention order being in place, your being subject to bail) and some denials (there was no argument between you and Ms Robey, and that Ms Robey had been accidentally injured while suicidal).
Impact on victim
24A victim impact statement was later authored by Ms Robey and was provided on your plea.
25Ms Robey describes the effects of what you did to her. Her anxiety prevents her from doing normal things. She becomes overwhelmed by panic, and feels like the ‘walls are caving in’. She has suffered, and still suffers, from what you did to her and I take that into account on your sentence.
Criminal history
26You have admitted a range of prior convictions dating back to 2007; including, and most relevantly, contraventions of family violence intervention orders, common assault, unlawful assault, entering a private place without authority or excuse, recklessly causing serious injury, committing indictable offences on bail and contravening conduct conditions of bail. You have previously served terms of imprisonment, and breached Court orders. In 2019 you pleaded guilty to a charge of ‘aggravated assault of a female’ among other charges. Your previous victims include the victim in this case, Ms Robey. You have a significant criminal history involving the assault of intimate partners.
Nature and gravity of the offending
27
I turn now to the nature and gravity of your offending. You repeatedly assaulted your female partner, after convincing yourself she had been unfaithful to you. She had to absorb your inability or unwillingness to manage your emotional state. Your actions stemmed from jealous rage; you inflicted multiple blows on her over two days and left her injured. The most serious of these events is the conduct on
17 June 2022. This offending included your choking of Ms Robey: this was outrageous, and cowardly aggression and indicates a willingness to exercise an awful tyranny of your emotions and your body over hers.
28You left your partner injured and frightened. Your conduct was repeated , and breached a Court order made for her safety. In the case of Filiz v R,[14] the Court of Appeal made it clear that such offending would attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection. I am careful not to punish you twice for the breaches and the offending that you did that caused the breaches of the intervention orders. However, I do regard your moral culpability as high.
[14][2014] VSCA 212 [21] (‘Filiz v R’).
Personal circumstances
29You are 35 years old and at the time of your offending you were 33.
30Your biological father is of Aboriginal descent and your mother is of Irish decent. You have no siblings, and have had no contact with your biological father since birth.
31Your mother and father separated when your mother was 19 weeks’ pregnant. You consider your mother’s former partner, Mitchell Fitzpatrick, to be your father. Your mother entered into a relationship with Mr Fitzpatrick when you were 11 or 12 years old, and you still maintain a close relationship with him.
32Your life as a child was marred by the presence of alcohol, drugs, family violence and general deprivation. You regularly witnessed your mother’s partners harming her, both physically and mentally, and at times subjecting you to the same disgraceful and destructive treatment.
33At the age of four or five, you discovered your mother’s partner hanging in a garage at your home. You were the first to find him. He was resuscitated and ultimately survived.
34Following that relationship, your mother began a relationship with another man, who was extremely cruel to you and to your mother. You recall him breaking your mother’s nose, and inflicting other forms of terrible violence against her. When you and your mother fled, he followed you (sometimes attending your Primary schools) and continued to inflict violence. His Honour Judge Allen, in a previous sentence in this Court, described that conduct as ‘very serious stalking’ over a number of years.
35You were subject to your first drug use at the age of six. You were forced to smoke a ‘bong’ and had a severe asthma attack requiring medical treatment. You started regularly using substances from the age of 16 and your drug use escalated when your best friend died in a drink driving accident in 2006.
36You attended Rosebud Secondary College and completed Year 10, after which you commenced a painting apprenticeship. You were an apprentice painter for approximately eight to ten months, and then obtained employment in landscaping. You went to work mostly in labouring and landscaping prior to your remand.
37You have completed a number of certificates of achievement in custody.
Matters in mitigation
38You have pleaded guilty to the charges, which would be important at any time, but at the moment, when the administration of justice is still dealing with the delays caused by the pandemic: you stand to receive an additional ‘significant and palpable benefit’ by reason of your plea.
39I am aware that the time in which this discount can be called on is soon to be at an end, but I take into account the timing of your plea, and the fact that all delay in all Courts is not yet resolved, and continue to apply this feature as additional mitigation in your case.
Current sentencing practices
40I have had regard to current sentencing practices – no case is particularly like yours, but I have had regard to other similar cases and sentence you in that landscape.
41I note that in the past the perpetrators of family violence have been prosecuted rarely and, even when convicted, sentenced leniently. Authority on sentencing in this context has now turned a corner; success in prosecution, and sentencing practice reflect more accurately the community's expectation that offenders in your category will be dealt with sternly.
Bugmy principles
42Your counsel submitted that, consistent with the principles in the case of Bugmy, as illuminated in the reasoning in the case of Hermann,[15] your recourse to violence is explicable by reference to your exposure as a young person to alcohol and violence and I accept that submission. I apply it in the specific reduction of your moral culpability. I must also apply the principle of community protection where the Court in Bugmy also said: ‘the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.‘[16] You were taught as a child that violence against your loved ones was normal and acceptable and that mitigates your sentence. But that, in combination with your prior history of intimate partner violence, also means this sentence must convey specific deterrence and protect the community from you in appropriate measure.
[15]DPP v Herrmann [2021] VSCA 160; Bugmy v R [2013] HCA 37 [43]-[44] (‘Bugmy’).
[16]Bugmy (n 11) [44].
Verdins application
43A psychological report authored by Dr Paul Grech was tendered on your plea. It sets out your personal history, and all its tragic and violent and deprived parts. It has to be said that you were exposed to relentless family violence during your childhood. You saw things no child should see or experience and your misuse of drugs follows.
44Dr Grech opines ‘the diagnoses of PTSD, bipolar disorder and adult ADHD are highly relevant’. As I said at the hearing, I regarded this opinion as insufficient to properly support specific legal submissions in this sentence. As I have already said, I take your background into account as very significant in explaining your apparent acceptance of, and ease with, violence in your relationships.
45I have read and had regard to the sentencing remarks of His Honour Judge Allen delivered a decade ago in this Court in 2013.
46Your lawyers sought an adjournment to obtain more satisfactory psychological material, and a subsequent report of Dr Grech was provided and the subsequent report still did not contain any expert opinion that provided a suitable basis for submissions based on Verdins principles. In the end, such submissions were not pressed, which was appropriate given the state of the evidence on the subject.
Prospects of rehabilitation
47Turning now to your prospects of rehabilitation. These must now be seen as guarded, though I note you still have a family around you who are affectionate and supportive. You have a goal to recover some access to your children. You have available suitable accommodation with your family upon release. The task of undoing old habits of jealousy and expression through violence lies ahead of you.
Value of the plea
48There is a matter of some significance in relation to the prosecution case on incident 2 – which causes me to consider the value of your plea on those charges to be regarded as higher. Mr Hutchison, said to have been present at the time of your most serious assault of Ms Robey, made a statement to police saying that he was present at the time and no assault occurred. While there was other evidence of the assaults having taken place, the Crown would have had to cross examine their own witness which is not always productive of a simple route to proof. By your plea, you rendered this statement of Mr Hutchison false; successful prosecution of those charges was not necessarily perfectly assured. That fact, in combination with the fact that Ms Robey’s statement to police was obtained in the context of her being found by police inside a house that appears to have been burgled, should be taken into account on this sentence. A trial on those charges would no doubt have leant on a challenge to Ms Robey’s credibility and reliability. This elevates the mitigatory effect of your pleas in relation to that incident.
Hardship in custody
49It was submitted, and I accept, that in the period of your custody from June to December 2022 you experienced additional restrictions in custody caused by the efforts to contain the Covid-19 pandemic and I take that into account.
Purposes of sentence
50There is a heightened role for general deterrence in cases involving family violence: those considering similar brutal and degrading abuse of a domestic partner must understand that the courts will not hesitate to impose stern punishment upon wrongdoers.[17]
[17]DPP v Smith [2019] VSCA 266 [35].
51In the case of Filiz v R,[18] as I have already said, the Court of Appeal made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection.
[18](n 10).
52I have regard to your history of violence against women, and against the victim in this matter in particular, and find that there is a requirement for specific deterrence. This sentence must also be punitive and serve to protect the community.
Submissions of the parties
53The prosecution submitted that your case required the imposition of a head sentence with a non-parole period.
54Your counsel argued that a period of imprisonment in combination with a community corrections order was the appropriate disposition. Later, your counsel adjusted this submission to be for a ‘longer than normal’ period on parole.
55I considered the submissions carefully; I made it clear at a sentence indication hearing (after which you entered pleas of guilty) that I regarded a ‘combination’ sentence to be insufficient to meet the purposes of this sentence. I note the prior conviction for assaulting the same victim this case and on that charge you were sentenced to a correction order which you subsequently breached by committing further family violence against a different partner.
56You have not been deterred by the sentences imposed on you in the past. I considered the ‘combination’ sentence insufficient particularly for the purposes of general and specific deterrence.
57Another way of saying all this, Mr Fitzpatrick, is this. Sentences will just keep getting longer and longer until you stop.
Disposition
58
On charge 1, recklessly causing injury, you are convicted and sentenced to
11 months' imprisonment;
59On charge 2, common law assault, you are convicted and sentenced to seven months' imprisonment;
60
On charge 3, causing injury intentionally, you are convicted and sentenced to
20 months; imprisonment;
61
On charge 4, the indictable offence of contravening a family violence intervention order intending to cause harm or fear, you are convicted and sentenced to
seven months' imprisonment;
62And on the related summary offences I sentence you in this way:
63On the summary offence of breaching an intervention order you are convicted and sentenced to four months’ imprisonment
64And on the summary offences of:
· commission of an indictable offence while on bail;
· wilful damage;
· trespass; and
· contravention of a conduct condition of bail,
you are convicted and sentenced to one month's imprisonment on each charge.
65I make the following orders for cumulation. The sentence on charge 3, intentionally causing injury is the base sentence. Six months of the sentence on charge 1, four months of the sentence on charge 2, three months of the sentence on charge 4 and one month of the sentence on the summary charge of contravention of a family violence safety order are to be served cumulatively upon each other and upon the sentence on charge 3, making a total effective sentence of two years and 10 months' imprisonment.
66I direct that you are required to serve 22 months' imprisonment before becoming eligible for parole.
Section 6AAA
67Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty but been found guilty after trial, I would have imposed a total effective sentence of three years and eight months, with a non-parole period of two years and six months.
PSD
68Pursuant to s 18 of the Sentencing Act 1991 I declare that a total of 468 days of pre-sentence detention are to be reckoned as already served pursuant to this sentence. Mr White, have I neglected any orders?
69MR WHITE: No, Your Honour, I don't believe so. Thank you.
70HER HONOUR: All right. Is there anything outstanding then?
71MR WHITE: Nothing further.
72MR RANJIT: No Your Honour. If Your Honour pleases.
73HER HONOUR: All right. Thank you, counsel. We will rise until tomorrow.
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