Director of Public Prosecutions v Frecker

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-19-02338

DIRECTOR OF PUBLIC PROSECUTIONS

JAKE FRECKER

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JUDGE:	O'Connell
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May and 2 June 2020
DATE OF SENTENCE:	16 June 2020
CASE MAY BE CITED AS:	DPP v Frecker
MEDIUM NEUTRAL CITATION:	[2020] VCC 834

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:              Intentionally cause serious injury; Persistent contravention of family violence intervention order; Two victims are previous intimate partners of the accused; Serious example of family violence; Plea of guilty; No previous convictions; Positive prospects for rehabilitation; No substantial and compelling circumstances that are exceptional and rare that would justify the imposition of a Community Correction Order either alone or in combination with imprisonment; Denunciation; Just punishment; General deterrence.
Legislation Cited:      Crimes Act 1958; Family Violence Protection Act 2008; Sentencing Act 1991.
Cases Cited:The Queen v Consedine [2007] VSCA 253; DPP v Maskell [2013] VCC 749; Tan v The Queen [2019] VSCA 226; Hards v The Queen [2013] VSCA 119; DPP v Monteiro [2009] VSCA 105.
Sentence:                  Total effective sentence of 6 years’ imprisonment, non-parole period of 3 years and 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. McCarthy	Office of Public Prosecutions
For the Accused	Mr C. Edwards	Fitzroy Legal Service

HIS HONOUR:

Introduction

Jake Samuel Frecker, you have pleaded guilty to the following charges:
1.That at Mildura between 24 December 2016 and 30 November 2017, you assaulted Zara Angela Farwell[1], contrary to the common law. It should be noted that is a rolled-up charge.
2.That at Irymple between September and November 2017, you intentionally damaged two jewellery boxes belonging to Zara Angela Farwell without lawful excuse, contrary to s 197(1) of the Crimes Act 1958.
3.That at Irymple on 17 January 2019, you intentionally caused serious injury to Lara Michaela Knox[2] without lawful excuse, contrary to s 16 of the Crimes Act 1958.
4.That at Mildura and other places in Victoria between 17 January 2019 and 5 February 2019, you persistently contravened a family violence safety notice and an intervention order, contrary to s 125A of the Family Violence Protection Act 2008.
[1] A pseudonym.
[2] A pseudonym.
You also pleaded guilty to two related summary offences:
1.That at Irymple between 1 August 2019 and 31 August 2019, you contravened a family violence intervention order by causing Chris Tipping[3] to contact Lara Michaela Knox, contrary to s 123(2) of the Family Violence Protection Act 2008; and,
2.That at Irymple on 24 August 2019, you contravened a family violence intervention order by causing Hamish Arnold[4] to contact Lara Michaela Knox, contrary to s 123(2) of the Family Violence Protection Act 2008.
[3] A pseudonym.
[4] A pseudonym.
At the plea hearing, Mr McCarthy, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a prosecution opening. Mr Edwards, who appeared on your behalf, accepted that the opening accurately described the circumstances of your offending and could properly form the factual basis for sentence.

Circumstances of offending

In summary that offending involved the following:
In June 2016, you began a relationship with Zara Farwell. She was 21 years of age at the time. You commenced living with her in November of that year. The relationship ended in December 2017. It resumed in March 2018 but ended finally in about April 2018.
The first charge on the Indictment, common law assault, encompasses a number of instances in which you assaulted Ms Farwell. The first instance arose on 24 December 2016 in circumstances where you and Ms Farwell had returned home after drinking at a nightclub. You argued with her, and in the course of that argument, you punched Ms Farwell to her left arm.
A number of other instances occurred during the period September to November 2017. On one occasion, you argued with Ms Farwell about her smoking. During the course of that argument, you pushed her with both hands causing her to fall to the floor. On a different occasion, whilst you were arguing in bed, you grabbed Ms Farwell by both feet and swung her from the bed causing her to hit her head on the wall. Ms Farwell then went to sleep in another bedroom. Shortly afterwards, you entered that room and poured beer onto her as she lay in bed. You then snapped the lid off her jewellery boxes when she did not respond to you. That latter conduct comprises Charge 2 on the Indictment, criminal damage.
On another occasion, you pushed Ms Farwell over as you both ran to the front door of your house after a night out. She fell onto the concrete and grazed her right knee. When you got to the front door, you hit her across the chest causing her to fall against the brick wall and once you got inside the house, you punched her to the ribs and back. All of the instances where you struck Ms Farwell that I have just described have been rolled-up to comprise Charge 1.
You met the second victim, Lara Knox, in February 2018. She was then 35 years of age. You began a relationship shortly afterwards. Ms Knox told investigators that from about April or so of that year, she noticed that you would become angry at times for no apparent reason. Over time, your behaviour became more controlling and by October 2018, you had become physically violent towards her by pushing her.
On 16 January 2019, you and Ms Knox visited Ms Knox’s cousin. There were a number of people present all drinking alcohol. Ms Knox received a group message from an ex-boyfriend with whom she had remained in contact for the purposes of her work. After seeing the message you became angry and went outside and got into your car.
Ms Knox and her cousin followed you and tried to grab the car keys from you because they believed you had drunk too much alcohol to safely drive. You pushed Ms Knox away and drove off. She then followed in her car back to your home in Irymple. When you got out of your car, Ms Knox approached you and asked you whether you were okay. You told her to ‘fuck off cunt’. You then grabbed her and threw her to the ground and put your hand to her chest to hold her down as you stood over her. You were swearing and yelling at Ms Knox and proceeded to grab her around the neck and continued to push her down as she tried to get up. You then punched her to the left side of her face.
Eventually, you let her up and she began walking to the front door, however, without warning, you again punched her to the left eye. Ms Knox was understandably very upset and crying, and went inside to the bathroom to look at her face. Her cheek was swollen. She turned to you and said, ‘it’s not okay that you did that’. This made you become even angrier. You took Ms Knox’s car keys, then grabbed her arm and dragged her outside whilst she struggled with you. You yelled at her, ‘get the fuck out’.
Once outside, you pushed her against the wall of the house and told her to calm down. You said ‘do you want me to give you another one?’. Ms Knox said no and tried to push you away but you would not let her go. You then punched her again to the left side of her face which caused her to fall back onto the ground and lose consciousness. You then began dragging her by the arm inside the house.
Ms Knox’s next memory was of her lying on the tiles in the front doorway. You yelled at her ‘you still have a pulse so you can get up’. By this stage she was unable to open her eye and she could not feel the side of her face. She said, ‘I need you to call an ambulance please’. You told Ms Knox that you would call her mum and dad and an ambulance if she needed one. You got something cold and put it on her face and told her that was going to be all right and that it was not that bad.
As this was happening, a neighbour who lived across the road became concerned after hearing your voice yelling and the crying of a female. She rang ‘000’. This occurred at about 1am on what was now 17 January 2019. Police attended a short time later. When they arrived, you took them in to see Ms Knox who was lying on a bed. When police asked whether she needed an ambulance you said, ‘no, she is fine’. One police officer took you outside and you told him that she had fallen and hit her head on the concrete driveway.
The other police officer questioned Ms Knox as to what happened. She said she could not talk to him, that she had been drinking, that she could not really remember and would have fallen over. The police officer observed that she was crying and looked scared. An ambulance was called and after paramedics examined Ms Knox, you were arrested. She told paramedics that you had punched her in the face both outside and inside the house and had dragged her along the ground.
When Ms Knox arrived at hospital, the following injuries were noted:
·Large haematoma and swelling of left eye and cheek with the eye closed due to swelling;
·Bruising on the neck;
·Dark bruising on right upper arm;
·Smaller bruises on left upper arm;
·Bruising upper chest; and
·Graze right lower leg.

A CT scan confirmed a minimally displaced and depressed fracture involving the left infraorbital floor.
Photographs tendered on the plea depict those injuries in graphic detail. I will deal with other aspects of the injuries shortly.
You were interviewed at the Mildura police station. You told police that Ms Knox stumbled whilst walking up the driveway. You said she fell over and hit the side of her face on the concrete. You said you fell over as well but just hit your knee. You denied assaulting Ms Knox and said that you would never intentionally hurt someone, that it is not in your nature, it was not how you were brought up, ‘…especially against women… especially not [the victim]’. You said you did not know why you did not call an ambulance.
You were served with a family violence safety notice. The notice prohibited you from approaching, telephoning or otherwise contacting Ms Knox unless you were in the presence of a police officer. You were also prohibited from being within five metres of Ms Knox, or within 200 metres of her place of residence. A short time after police dropped you back at your home, you sent a text message to the victim asking her to call you. That conduct was in direct contravention of the family violence safety notice.
The following morning you rang the hospital to speak with Ms Knox but she did not answer the call. At 10:14am she answered another call from you. You apologised to her and offered to sit with her at the hospital. She declined the offer. You phoned the hospital six times throughout the day and spoke to Ms Knox three more times.
You arranged for your mother to go to the hospital. Whilst your mother was with Ms Knox, you had 11 phone conversations with your mother and on one occasion your mother provided the phone to her so that you could speak to her.
Unfortunately, Ms Knox felt embarrassed about what had happened, so she did not contact her family or friends.
Later that evening, at about 8:45pm, Ms Knox discharged herself from hospital against medical advice and went to stay at your mother’s home. Ms Knox phoned you twice after leaving the hospital and at about 10:30pm you went to the house and spoke with her. You asked, ‘Are you gonna (sic) get me in trouble? What did you tell them?’ Ms Knox told you that she had said nothing to the police, as she was scared to tell you the truth.
On 18 January 2019 at 8:27am, you sent a message to your mother telling her to ask Ms Knox to contact the police to have the family violence safety notice withdrawn. You later sent your mother the phone numbers for the police station and the court to facilitate that request.
Around lunchtime that day, police observed you park your ute across the road from your mother’s residence where you knew Ms Knox to be. You were arrested at your home a short time later and a further record of interview was conducted with you.
In that interview, you said that you remembered that you had hit Ms Knox once in the bottom half of her face, in the jaw, and at that stage she fell and hit the concrete at the top of the driveway. You said you only ever hit her once. You also made admissions to contacting Ms Knox when you knew that you were prohibited from doing so.
Your mother made arrangements for Ms Knox to stay at the hotel where she worked because she had other guests. In the early hours of the following morning, paramedics were called to the hotel to find Ms Knox nauseated and in significant pain. She was taken back to hospital.
On 21 January 2019, Ms Knox was examined by Dr Richard Barton, a plastic surgeon who specialises in the management of facial trauma at the Alfred Hospital. Dr Barton confirmed that your victim’s injury resulted in a blow-out fracture to her left orbital floor with significant bruising and swelling to the left side of her face. Having regard to the injuries and bruising, Dr Barton formed the view that it was likely that Ms Knox suffered multiple blows of significant force to the left side of her face. She underwent surgery which involved exploration and repair of the fracture. She was discharged the following day.
On 25 January 2019, a final family violence intervention order was made against you. You were served with a copy of that order and it included conditions that you were not to publish on the internet any material about Ms Knox, and not to contact or communicate with her by any means, or cause another person to do the same.
On that same day, you were interviewed by police in respect of the matters concerning Ms Farwell. In response to those allegations, you said that you had never physically harmed Ms Farwell and that although you had argued, you had not once laid a hand on her. You did say that you once pushed her off you when you were lying in bed, but the allegations she had made were false.
Between 20 January 2019 and 11 February 2019, you had regular phone conversations with your mother urging her to speak to Ms Knox on your behalf. For example, on 7 February 2019 you asked your mother to spend time with Ms Knox and invite her to your mother’s house.
On 12 February 2019, Dr Barton again saw Ms Knox for a post-operative review. She had normal vision in her left eye. She had some tethering and contraction of her left mid lid surgical incision. The scar was causing some ectropion and a scleral show. Regarding the nerve injury, she had some early recovery of sensation and some improvement in the power of the affected muscles along the left side of her face. The surgeon expected a full recovery.
On 18 February 2019, Dr Maaike Moller examined the medical notes statements and photographs regarding Ms Knox’s injuries. Dr Moller formed the view that the likely cause of Ms Knox’s injury to her face was a blow, but could not comment on the number of blows that were inflicted. Ms Knox had also sustained blunt force trauma to both arms and her chest causing bruising, and to her right leg resulting in grazing.
On 26 February 2019, Ms Knox attended at a dental surgery to have her teeth examined. She was found to have sustained three small enamel fractures and a cracked tooth which required restoration. On 4 April 2019, quite a deep restoration of the cracked tooth was completed.
On 25 June 2019, you were granted bail. A condition of your bail at that time was that you comply with the intervention order to which I have earlier referred.
On 30 June 2019, you sent a letter to a close friend of Ms Knox’s, although you did not yourself know this person particularly well. You apologised to that person for your behaviour and spoke of the courses and programmes that you had completed in prison. The letter was provided to police. That conduct does not form the basis of any charge against you, notwithstanding the obvious inference that you had hoped that the friend would forward that letter to your former partner.
Also around that time, you contacted another friend of Ms Knox, Hamish Arnold. You began regularly contacting him by sending him messages and by phoning him over the next six weeks. You asked Mr Arnold to contact Ms Knox on your behalf and on 8 August 2019, sent him photographs of a five page handwritten letter directed to Ms Knox. You asked him to give her a copy of that letter.
During the period July and August 2019, you were also in regular contact with Chris Tipping. You had known Mr Tipping at high school and you knew that he was also a friend of Ms Knox. You told him that you were frustrated because you couldn't communicate with Ms Knox and told him that you wanted to make things right with her. You explained that you were sorry and you told him about the courses that you had done in prison. Mr Tipping contacted Ms Knox on Snapchat in mid-August 2019 and told her that you had changed and still loved her.
On 30 August 2019, a further record of interview was conducted with you at Horsham police station. You told police that you had asked Mr Arnold if he would look at an apology letter that you had written to Ms Knox to get his advice on it. You denied asking him to pass the letter on.

Victim impact

15 victim impact statements were tendered at the plea hearing that described the trauma Ms Knox, her family and her friends have been through as a result of your actions.
Ms Knox has had to deal with both the trauma of the incident and the trauma of trying to recover from it.
As to the incident, she has a clear memory of lying on the tiled floor, only able to open one eye, pleading with you to call an ambulance which you refused to do. She describes that as the lowest moment in her life. Her memories of the attack intrude into her everyday life. She has been told she suffers from post-traumatic stress disorder.
She was told that she would lose her eye without the surgery in Melbourne. The medical treatment she had to endure was exhausting. The psychological impact appears to have been even more significant. Before this, she clearly was an independent, confident, vibrant and fun loving person. She says that she is not that person any more. She has lost her sense of confidence and independence and fears that she will never get it back. Many of her friends and family make similar remarks.
She states:
Every morning I open my eyes, I run my fingers over the left side of my face only hoping to be able to feel some sign of improvement. Just more disappointment. I get up and look in the mirror and still see a crooked smile. That smile isn't mine. only time will tell if the feeling will return. And that eye, the idea that he has hurt me so badly beyond repair, I needed plates put into my face to hold the broken pieces together shatters me. That will be there forever. Looking at myself everyday no matter how much time passes, my reflection, looking in a mirror, a photo or video is a reminder of what happened to me and most of all it’s a reminder of him. It will be staring back at me for all my days.
Clearly what you did changed Ms Knox’s life profoundly. As her mother remarked in her statement, it has been heartbreaking to watch, and that has been so for all of those that took the trouble to provide victim impact statements.
Of particular concern to Ms Knox’s family was the fact that they were not notified of what happened for three days. As I indicated at the second plea hearing, you will not be sentenced on the basis that you prevented that contact.
Zara Farwell also made a victim impact statement. She turned 21 during your relationship and states that it was her first experience of an adult relationship. She recalls that at times she would blame herself for the abuse and the fighting. She felt embarrassed and worried that people would think she was the problem and not believe her. Even though the assaults occurred in 2017, she is still learning, in 2020, how to deal with the damage those assaults have caused her.

You should understand that the impact your conduct has had on your victims and those close to them is a very important consideration in the formulation of your sentence.

Procedural history

Turning to the procedural history of this matter, you were charged with both the offences involving Ms Farwell and the offences involving Ms Knox in January of 2019. Indeed, you were remanded in custody on 18 January 2019. You sought bail on 8 February 2019, but that application was refused. You were finally granted bail after demonstrating new facts and circumstances on 25 June 2019. After the further breaches of the intervention order in August 2019, your bail was revoked on 3 September 2019.
On 10 September 2019, at the committal proceedings concerning the allegations made by Ms Farwell, you indicated that you would plead guilty to those matters. On 21 November 2019, at the committal of Ms Knox’s matters, you indicated that you would also plead guilty to those offences. Accordingly, each set of matters resolved before any witnesses were cross-examined.

Personal history

You were born on in December 1993, and are now 26 years of age. You were 23 years of age at the time of the offending involving Ms Farwell. You were 25 at the time of the offending involving Ms Knox. You have no prior convictions.
Your parents separated when you were just an infant and you continued to live with your mother whilst your father moved out to Horsham. He works in the fire service for Parks Victoria. You would see him on school holidays and you appear to have retained a good relationship with him.
Your mother re-partnered and you have two younger siblings. You did your primary schooling in Melbourne, but your family then moved to Mildura where you undertook your secondary schooling. It does not appear that you were particularly academic and you struggled at school in the sense that you were the target of some bullying because you suffered from severe acne which was ultimately controlled through medication. You were able to complete year 12 but you did not pass English so you did not receive your VCE.
Despite those problems, you showed some aptitude in sport. For example, you were elected house captain at school and enjoyed success in swimming, athletics, basketball and particularly in football. You captained the under 16’s at South Mildura and started playing senior football for Irymple at the age of 17. Most recently, you made a very valuable contribution to the Dimboola Football Club and I will come to that shortly.
You also developed a very strong work history. You always worked part-time during your schooling, and once you left school you obtained work with a local stationery business in Mildura. In that position, you were quickly given additional responsibilities before taking up a position as a branch assistant at Tradelink Plumbing Supplies.
You are clearly suited to that sort of work. Within a short period of time, you were promoted from trades assistant to assistant manager and finally, at the age of 23, to branch manager. As your counsel Mr Edwards emphasised, the company you worked for had some 230 different stores across the country and you were the youngest manager in Australia. It was a position with significant responsibilities dealing with all facets of the business. You saved and managed your money responsibly such that by the age of 24, you were able to purchase your own home on your own account.
31 written personal references were relied upon on your plea. It appears that all of those referees were aware of the charges to which you have pleaded guilty.
The first point to make that arises from those references is that despite the nature of the offences you have committed, you have significant family support. Your mother, father, stepfather, brothers and many members of your extended family all confirm that is so. Your aunt, Carolyn Ross for example, speaks of how you are much loved by your family and that they just want to see you get the help that you need to, and, as she puts it, ‘become the person he aspires to become’. Your Godmother, Kerrin Peacey has been visiting you in custody each week and has seen your attitude change significantly. She says that during those visits you have spoken in depth about the offending and have shown deep remorse and an awareness of the impact your actions have had on many people.
The secretary of the Dimboola Football Club, Colin Campbell, wrote of your commitment to make amends and of the solid contribution you made to the club whilst you were on bail. A former girlfriend, Chelsea Humphrey described her experience of her relationship with you in 2011 – 2012 as being positive and that you displayed no signs of aggression at that time. Indeed, nearly all the referees remark on how they believe your offending is so much out of character in their experience of you.
You were assessed for the purposes of your plea by a consultant forensic psychiatrist, Dr Jacqueline Rakov, on 13 February 2020. Dr Rakov documented a personal history which was consistent with what I have described above, however she noted that you had developed a pattern of heavy binge drinking on weekends in league with the use of cocaine on occasions. She also noted your report that your father had anger and alcohol issues and that your mother had a history of serious depression.
During your interview with Dr Rakov, you described the circumstances of your offending:
Mr. Frecker described the assault on Ms. Knox in reasonable detail. He approximated having drunk 15 Carlton draughts and consumed one gram of cocaine. He told me Ms Knox was also intoxicated. He said they became embroiled in a verbal argument due to his jealousy issues – he said contact from her previous partner triggered previous memories of infidelity. He said he grabbed his keys and drove home and ten minutes later Ms. Knox presented herself. The neighbours had called the police due to the increasing volume of their verbal argument. Mr. Frecker said that thereafter there was “push and shove by both parties… I reacted in a way I’ve never reacted before… [he said he hit her once] I can only recall one strike… then I cared for her with an ice pack, and offered to call an ambulance. By then the police arrived because of the yelling…”
Whilst on bail, Mr. Frecker wrote an apology letter to Ms. Knox, which he understood was a breach of the IVO.
Regarding Ms. Farwell, Mr. Frecker described that in their relationship, Ms. Farwell did not like him going out and drinking. They fought about this. At the time of the alleged offending, he said she was slapping and kicking him. He said he pushed her off him and off the bed (the assault charge) and then snapped her $200 jewellery box (property damage charge).
Dr Rakov formed the view that you had a genetic predisposition to depressive illness and alcohol abuse. She notes that you feel that you have never been able to discuss your emotions and this has tended towards explosive or angry frustration, and the problematic alcohol use was likely the main cause of your impaired judgement and disinhibited aggression.
She thought that your behaviour was consistent with an alcohol use disorder and that your presentation was likely more comprehensively explained by a co-morbid generalised anxiety disorder with panic.
Finally, Dr Rakov suggested that you did not convey any attitudes, beliefs or values that supported or condoned violence. She found no evidence of a personality disorder, and no psychiatric impediment to expressing remorse which she said you conveyed openly.

Defence submissions

In his careful and thorough submissions, Mr Edwards readily acknowledged the seriousness of this offending. He submitted that the serious injury sustained by Ms Knox was not quite as serious as would often be seen for that offence. No weapon was used and it seems she will make a full recovery. The offending involving Ms Farwell involved only minor injuries.
As to the intervention order breaches, it was submitted that you panicked when you realised how serious Ms Knox’s condition was, as you had never been in that position before. You have since learnt that breaching intervention orders result in serious consequences. The latter breaches, he suggested, were genuine attempts to apologise; they were not threatening or abusive.
It was submitted that your sentence should be substantially reduced given your pleas of guilty. Neither of the complainants nor any other witness was cross-examined. The savings in costs and resources by avoiding the necessity of a trial is significant. Aside from the first record of interview, liability was never in issue. You have throughout the process shown that you are willing to facilitate the course of justice and your pleas were very much consistent with remorse.
You have expressed your remorse for this offending which is confirmed in the references and psychiatric report. There is also tangible evidence of that remorse in the form of seeking assistance through a men’s behavioural change program, attending at Headspace, completing the Everton Mission residential treatment program at Ravenhall (involving a series of programs addressing alcohol abuse anger management and building healthy relationships) and the positive lifestyle program run by the Salvation Army and prison chaplaincy. Having regard to your motivation and commitment to address your offending behaviour, it was submitted that your prospects of rehabilitation should be seen as being very positive.
Mr Edwards also relied upon your relative youthfulness, your good character as set out in the references relied upon, and the sentencing considerations relevant to the COVID-19 crisis. He submitted that the Court should consider the time that you have already spent in custody and facilitate your rehabilitation through the imposition of a further term of imprisonment in combination with a Community Correction Order (‘CCO’).
It was acknowledged that because intentionally causing serious injury is a category 2 offence as defined in the Sentencing Act 1991 (‘the Act’) it would be necessary pursuant to s 5(2H)(e) to establish that there were substantial and compelling circumstances that are exceptional and rare which justify not imposing a term of imprisonment. For that purpose, Mr Edwards relied on the matters I have set out above.

Prosecution submissions

Mr McCarthy submitted that your circumstances did not come within the statutory exception and that the only appropriate disposition was one of imprisonment with a non-parole period. In support of that submission, he relied upon a number of factors including the applicable maximum penalty which is 20 years’ imprisonment for intentionally causing serious injury, the serious nature of the injury sustained by Ms Knox, the nature of the intent required to commit the offence, the vulnerability of Ms Knox and the context in which the injury was inflicted being family violence.
It was further submitted that limited weight should be given to your asserted remorse. You denied the offending initially and although you made some admissions in your second interview, it is apparent from what you told the psychiatrist that you continue to minimise your involvement and show a lack of insight into what you did.
It was accepted that the sentencing considerations relating to COVID-19 were relevant, but should have limited weight given that you would not be particularly vulnerable to that illness. Helpfully, I was also provided with a number of cases for comparative purposes being The Queen v Consedine[5], DPP v Maskell[6], Tan v The Queen[7], Hards v The Queen[8] and DPP v Monteiro[9], accepting that sentencing practice is but one of the many factors I must take into account pursuant to s 5(2) of the Act.
[5] [2007] VSCA 253.
[6] [2013] VCC 749.
[7] [2019] VSCA 226, (‘Tan’).
[8] [2013] VSCA 119.
[9] [2009] VSCA 105.
An alcohol exclusion order was also sought.

Consideration

Turning to my findings, I think I should make it plain at the outset that I am not at all satisfied that there are substantial and compelling circumstances that are exceptional and rare that would justify the imposition of a CCO, whether alone or in combination with a term of imprisonment. The conduct that constitutes Charge 3 is a serious example of the offence of intentionally causing serious injury.
This was a callous and brutal attack on a woman that cared for you and who merely had the temerity to ask if you were okay. The mental element of the offence requires that you intended to inflict injury that either endangered life or was substantial and protracted. You must be sentenced on the basis that when you responded to Ms Knox’s question as to whether you were okay, you at least intended to inflict an injury upon her that was substantial and protracted. As the medical evidence and victim impact statements make clear, you succeeded.
All of the 31 references put forward on your behalf assert that the person who inflicted those injuries was not the person they knew. I accept that is their experience of you. It is difficult, however, to accept that what you did to Ms Knox was completely out of character. The instances of assault on Ms Farwell in your earlier relationship undermines that assertion. It is true that another former girlfriend, Ms Humphrey, did not experience violence or aggression from you in her relationship with you and I take that into account, but that was long before your relationships with Ms Farwell and Ms Knox and their experience was very different.
The way you treated each of those two intimate partners suggests that what occurred to Ms Knox was not a complete aberration. You will be sentenced on the basis that have no previous convictions and that is a very important consideration, but you will not be sentenced on the basis that subjecting intimate partners to violence was completely out of character.
It is tempting to characterise your breaches of the family violence safety notice and intervention order, including the attempts at conveying apologies, as nothing other than attempts to manipulate Ms Knox in blatant disregard of the terms of those orders. However, I have been persuaded by your counsel’s submissions that you had never experienced a serious situation such as this before, that you panicked and perhaps failed to appreciate how very serious your conduct was. I am confident that being returned to custody as you were in early September 2019, taught you a very harsh lesson.
The sentences imposed for Charge 4 and the related summary offences still require some cumulation, but will be moderated for the reasons I have just indicated.
I certainly accept that you were a person capable of excelling in sport and in your work and that you have made a valuable contribution to the local community. There are a lot of people in your family and in the wider community that think highly of you and are prepared to support you. Those matters tell strongly in your favour. As does the work you have done to address your offending behaviour.
It is to your credit that you have seen fit to pursue the sort of courses and programs that will help ensure that you do not do this again. I do note that the comments you made to the psychiatrist that tend to minimise what you did, suggest that there is still a good deal of work to do. Nonetheless, I accept that your prospects rehabilitation are very positive, particularly when one has regard to the programs you have undertaken, your work history, your age and the level of family support you enjoy.
I also accept all of your counsel’s submissions with respect to the value of your plea of guilty and accordingly the sentence will be substantially reduced by reason of that plea.
I do accept that you are now sorry for your offending, but it seems to me that your understanding of the wrongfulness of your behaviour is still a work in progress. As I have already indicated, the comments you made to the psychiatrist make that point. As does your letter of apology where you speak of your ‘out of character behaviour’ towards Ms Knox, in circumstances where you have pleaded guilty to also assaulting another intimate partner.
Even though you do not fall into that category of an inmate who is particularly vulnerable to COVID-19, the added restrictions, particularly the lack of contact visits, I expect will weigh heavily on you and I have taken this into account in your favour.
I have derived some limited assistance from the comparative authorities to which Mr McCarthy referred. I do note that the definition of serious injury was amended on 1 July 2013 and that the older cases need be considered with that in mind. I also note that the later decision of Tan relates to a plea of guilty for recklessly causing serious injury which is punishable by a lesser maximum penalty.
The prosecution have sought an alcohol exclusion order. The application is not opposed. You will now be convicted of intentionally causing serious injury which is a relevant offence for the purposes of s 89DE of the Act. I am satisfied on the balance of probabilities, that at the time of the relevant offence you were intoxicated, that your intoxication contributed to the commission of the offence and that you have not been the subject of a previous alcohol exclusion order in relation to the circumstances that gave rise to this offending. Accordingly, I will make the order as sought. The order will be for a period of two years and will take effect upon your release from prison. You should be aware that there is a power to vary that order under s 89DG of the Act, should you meet the criteria set out in subsection (3) of that provision.
Returning now to the offending itself – when, after you had first punched Ms Knox to her left eye, she said to you, ‘it’s not okay that you did that’, she was right – it was not okay. That is a message that men in your position must learn. Family violence in any context, let alone, family violence resulting in the infliction of serious injury on women, is wholly unacceptable in our society.
The sentence I must impose in this case will strongly denounce and justly punish what you did to Ms Knox. It must serve to demonstrate to others that harbour attitudes that rationalise or legitimise violence against women, and more particularly to those that perpetrate violence against women, that they will be prosecuted and that they will be punished harshly.

Sentence

On Charge 1, common law assault, you are convicted and sentenced to 9 months’ imprisonment.
On Charge 2, criminal damage, you are convicted and sentenced to 1 month imprisonment.
On Charge 3, intentionally cause serious injury, you are convicted and sentenced to 5 years’ imprisonment.
On Charge 4, persistently contravene a family violence intervention order, you are convicted and sentenced to 12 months’ imprisonment.
On each of the two related summary offences of contravening a family violence intervention order, you are convicted and sentenced to 3 months’ imprisonment.
I will order that 6 months of the sentence imposed on Charge 1, 4 months of the sentence imposed on Charge 4, 1 month of the sentence imposed on the first summary offence and 1 month of the sentence imposed on the second summary offence be served cumulatively upon the sentence imposed on Charge 3.
I will order the sentence imposed on Charge 2 be served wholly concurrently with all of the sentences, rendering a total effective sentence of 6 years’ imprisonment.
I fix a non-parole period of 3 years and 8 months.
I will declare pursuant to s 18 of the Sentencing Act 1991 (‘the Act’) that you have already served 449 days of that sentence by way of pre-sentence detention. I will cause that declaration to be noted in the records of the Court.
I will also declare pursuant to s 6AAA of the Act, that but for your plea of guilty, you would have been sentenced to a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years and 6 months. I will cause that declaration to be noted in the records of the Court.

I will make the alcohol exclusion order. The order is effective upon your release from custody for a period of two years.
An order is sought for forfeiture. The order is not opposed. I will make that order.

[2020] VCC 834

16 June 2020