Director of Public Prosecutions v Funnell (a pseudonym)

[2019] VCC 943

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL FUNNELL (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 June 2019
CASE MAY BE CITED AS:	DPP v Funnell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 943

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown
For the Accused	Ms A. Burnnard

HER HONOUR:

1Mitchell Funnell[1], you have pleaded guilty before me to one charge of intentionally causing injury and one charge of making a threat to kill.  The victim was your then-partner, Natasha Nuttall[2].  She has an acquired brain injury, and the two of you had been a relationship since December 2017.  However, a family violence interim intervention order was granted against you on 8 February 2018, and served on you on 9 February, the conditions being, amongst others, that you were prohibited from being within five metres of Ms Nuttall and from committing family violence against her. 

[1] This is a pseudonym name.

[2] This is a pseudonym name.

2On the morning of 10 March 2018, Ms Nuttall attended your house in Doveton, where you were present with some associates.  Later that day, you, she and a friend, Sam Brown[3], left in a car belonging to another friend.  Ms Nuttall was sitting in the back seat.  You were in the front passenger seat, and Mr Brown was driving.

[3] This is a pseudonym name.

3The car stopped at one point, and you started talking to a friend of the victim, after which an argument developed between you and her, and you climbed into the backseat of the car and started assaulting her.  You put your hands around her neck and squeezed as if you were trying to choke her, which is part of Charge 1 on the indictment, a rolled-up charge of intentionally causing injury.

4The victim tried to fight you off, and you bit her multiple times on the arms and legs and then used your kneecap to knee her in the eye.  These actions are also part of Charge 1.

5You said to her, 'Today's the day you're gonna die', words which underline Charge 2 on the indictment, making threats to kill.

6The car returned to Fugosia Street and the three of you got out, but the victim refused to go back inside and instead ran to a house in a nearby street where the resident was in the process of moving.  She saw the victim had a number of bruises.  The victim said her partner had assaulted her, and she called police.

7Ms Nuttall was examined by doctors at the Dandenong Hospital, who noted circular bruises over her arms and legs and bruising on her eyes. 
She was examined that day and then three days later by separate forensic medical officers.  She suffered blunt force trauma, mainly focused on the head and arms, including extensive bruising and sub-conjunctival haemorrhage to the left eye, as well as bruising to the left side of her neck, an abrasion on the right side, and a number of round-shaped bruises on her neck, arms and legs which were consistent with bite marks.

8You were arrested that day and taken to police for interview, but there you indicated you needed insulin for diabetes and wanted police to call an ambulance, and the interview was terminated.  You were remanded in custody on that date, and have remained there ever since.

9The maximum penalty for intentionally cause injury is 10 years' imprisonment.  The maximum penalty for making a threat to kill is 10 years' imprisonment.

10You also pleaded guilty to the summary charge of contravening an intervention order, which your actions in being in company with the victim on that day comprise, and the maximum penalty for that charge is two years' imprisonment. 

11I now turn to your personal circumstances.  You are 34 years of age.  You had an uneventful home life and a good upbringing, reaching Year 12 at Brandon Park Secondary College, although you did not complete that year. 
You compiled a good work history.  You worked for a chemist during school.  You worked as a batch maker at Leisure and Hospitality Services, a firm called Easyclad, a firm called PZ Cussons, Dulux, and the Consolidated Chemical Company.  You also completed a Certificate III in Aged Care at Box Hill TAFE, and became a carer for the grandmother of your then-partner.

12In late 2012, your mother died, then your grandfather and grandmother in early 2013.  Around this time, your relationship ended with your fiancée just two days short of ten years.  You had engaged in some sporadic drug use, but this increased after your grandmother died and your fiancée left.

13You did not begin offending until the age of 31, but may I say Mr Funnell, in that time you certainly made a good fist of consistently getting into trouble with police.

14The first prior matter on your criminal history relates to an appearance at the Dandenong Magistrates' Court on 6 May 2016, where you were dealt with by way of a community corrections order on charges of trafficking methylamphetamine, trafficking cannabis, cultivating cannabis, dealing with property suspected of being the proceeds of crime, a series of driving offences, and possessing a prohibited weapon without approval.

15Then on 2 June 2017, you were placed on a second community-based order on charges of intentionally causing injury, theft, driving whilst disqualified, and failing to answer bail.  You also served 90 days imprisonment.  On that date, you were also dealt with for breach of the first community corrections order.  That order was varied and was extended for a 12-month period to commence from your release from prison.  You were placed on an adjournment to be of good behaviour in December 2017 for dishonestly undertaking the retention of stolen goods.

16The situation, therefore, was one that when you committed these offences that have brought you before this court, you were on two sets of community corrections orders which I understand are to be dealt with next Monday at the Dandenong Magistrates' Court, where a plea of guilty will be entered to two charges of breaching your community corrections order.

17A report as to your progress on the order was tendered by your counsel. 
There was initially good engagement by you on your release from prison. 
You returned to your premises, which had been occupied in your absence by your uncle, who had also allowed in a tenant who was living there in a caravan.

18Your counsel told me that, essentially, in some ways the house in your absence had become a bit of a halfway house.  But it would also appear that your use of drugs had made you somewhat known in the area, and that you had a number of associates in the area who were well aware of where you lived.  Indeed, during the plea in this court, your father indicated it was his desire that you sell that house because of the problematic associates in the area where your home is located.

19According to the Corrections report, you initially engaged well. 
You engaged in supervision with Corrections, participating in offence mapping, case planning and workbooks.  You obtained employment on a full-time basis as a storeman in a cheese factory.  You undertook a course which allowed you to apply for and regain the license that you had lost in the course of your offending.

20However, later that year, the victim, who was known to you, contacted you.  A relationship formed and soon after she moved in with you.  She was a user of several drugs, including ice and GHB.  Other people started coming around.  Inevitably, you fell back into drug use and your compliance with your corrections orders fell away rapidly.

21You attended for two sessions of treatment for substance abuse, and thereafter failed to re-engage.  You returned one urine screen in September 2017, which returned a positive result for cannabis, of which you have been a long-term user - although not ice.  But once you fell back into ice use, your counsel told me you simply became too ashamed to attend and to possibly undergo the inevitable revelation of your resumption of drug use that that would have involved.

22You also had a mental health condition and obtained attendance upon a psychologist who it appears you did not like.  You were directed to engage, but you simply failed, as the report puts it, to make any progress in relation to this condition.

23You were also referred to an offender behaviour program which was the Bridging Employment Support Program.  You attended but were unable to find the building where the program was held.  Your counsel informed me that you persisted to find it for around an hour however, that simply went nowhere.  You were also referred for grief counselling but failed to make any appointments.

24So essentially, after a good start but fairly brief start, the corrections orders simply fell away.  By the time you offended in the manner that has brought you here before this court, you had fallen back into drug use.  You were not attending to the conditions of your community corrections order, and you were then, as I have said, remanded in custody.

25You were remanded in custody primarily because of a series of serious sexual assaults, including rape, which were alleged against you in relation to the victim.  I was informed, and the prosecution accepted that from the outset, that there were indications that a plea would be made to the violence matters involving your victim but not the sexual matters.  Things progressed on.  There was a contested committal at which only the informant was cross-examined, as other subpoenaed witnesses failed to appear.

26The complainant who had initially been compliant with police failed to turn up, and eventually the charges were withdrawn.  It was conceded by the prosecution that the charges you face today could have been dealt with on a summary basis.  It appears that you have largely been held for a fairly inordinate period of time in custody simply because of the failure for there to be resolution of the serious charges which were ultimately withdrawn.

27You have used your time in custody well, although it has not been without incident for you.  There have been two occasions where there has been a report to separate prisoners arising from the perception in the gaol that you were some sort of paedophile because you were charged with offences involving alleged sexual offending, and this got you into at least two occasions of altercation.

28Additionally, you had been a Type 1 diabetes sufferer since you were a toddler.  You require thrice-daily injections but these were not delivered to you in any acceptable form until you were recently moved to Karreenga, a very new facility.  It is the court's experience that the newer the gaol, the better the services.  In any event, I accept there has been an amount of what might be termed 'extracurial punishment' whilst you have been held in custody. 

29You have used your time in gaol well.  You have worked on a full-time basis virtually since the day you went into gaol, since the day you went into the MRC after the usual obligatory stay at the MAP.

30You have undertaken a number of courses, including a drug and alcohol course, and certificates attesting to your participation in those courses - which include a six-hour AOD and stress program course, a managing loss program, managing emotions program, managing sleep program, together with units undertaken with the Box Hill Institute in traffic control, administering life support, operation of a computer - together with three urinalysis results up to January this year, all proving to have a negative result.

31The situation now is one that you informed the court that you are determined to turn your life around, if I might put it that way.  Essentially, what you said to me was that you are heartily sick of the life you were living.  It would appear this extended period of gaol has had a fairly profound effect upon you.  You are determined not to return there.

32I made it very clear, sir, on the plea hearing, that you have managed to accumulate such an amount of prior criminal convictions that any court is going to be reluctant to deal with you in any way other than by a term of imprisonment unless you make good on that determination.

33It is your ultimate desire to travel to Western Australia to work in the mines in an attempt to make a fresh start.  My concern is that you have fallen into drug abuse late in life, but it has had a very determined effect upon your life over a period of time with serious consequences to you and to the community.

34It is clear that the issue of protection of the community is a principle to which
I must have serious regard.  Fortunately for you, you have protective factors such as coming from a supportive and law-abiding family.  Your father was present in court, and it is clear you continue to enjoy his support.  Although at this point in time, whilst he expressed a desire that you dispose of your house, he is unable to offer you anything other than temporary accommodation at this stage.

35My concern is that whilst you may have made great strides within the confines and structured environment of prison, however difficult that may be, you will not be able to persist with this once you are released in community without some sort of additional structure once you land there.

36The prosecution submitted it would be appropriate that I deal with you by way of a combination sentence; that is, the imposition of a term of imprisonment combined with a community corrections order.  In my view, this is an appropriate disposition notwithstanding that you have spent 15 months in gaol.

37There was a conversation between myself and your counsel as to the fact that, had you been dealt with in the summary stream, it is unlikely you would have received more than the term of imprisonment you have already served on remand.  But that is in an environment where a magistrate would be constrained by a maximum available sentence of two years.

38In other words, in the Magistrates' Court, the maximum penalty that a magistrate can in fact impose - notwithstanding that the maximum available term of imprisonment for this offending is 10 years, a magistrate order no more than two years.  And in the environment of the magistrates’ court, with that ceiling as to what gaol may be imposed, it would be likely that a sentence in the vicinity of 15 months or less may have been imposed.  You are, however, not in that jurisdiction and this court is not constrained by that sort of maximum term.

39At the moment I can only regard your prospects of rehabilitation as guarded at best given that most of the strides you have made have been within the confines of gaol, and the issue of protection of community means that it is appropriate in support of both those principles that I deal with you by way of a disposition which combines both gaol and the structure of a community corrections order.

40You have unsurprisingly been assessed as unsuitable for further placement on a community corrections order because this will be the third time you have been placed on an order, and you have previously not taken advantage of the opportunity afforded you by the two community corrections orders that have been imposed upon you.

41I am satisfied that this period of gaol has had a real effect upon you, that it has afforded you the opportunity to detoxify and refrain from drug use, and that this places you in a different position than you were in at the time you appeared before the Magistrates' Court on the previous charges to which I have already referred.

42It is my view - again, I note this is not resiled from by the prosecution - that a combination sentence combining a rehabilitative structure with some coercive effect is appropriate in your case.  In other words, sir, I am not prepared to let you loose in the community just yet.

43I have therefore decided that I will sentence you a term of imprisonment which I will declare has already been served by way of pre-sentence detention, and then place you on the appropriate order.  Could you stand up, please, sir?

44On Charge 1, intentionally causing injury, I sentence you to nine months' imprisonment.

45On Charge 2, making a threat to kill, I sentence you to two months' imprisonment.

46On the charge of contravening an intervention order, I sentence you to one month imprisonment

47The base sentence will be the sentence imposed on Charge 1, and I order that one month of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of ten months.

48I declare that this sentence has already been served by way of pre-sentence detention.

49I can only place you on a community corrections order with your consent,
Mr Funnell, so I will outline the conditions to you and then ask whether you consent to be placed on the order.

50The order will be for a period of 18 months.  The conditions of the order that firstly, you must report to the community corrections order within two working days of the making of this order.

51Secondly, whilst on the order, you must not commit any offence punishable by imprisonment.  That does not mean you have to be sentenced to imprisonment to breach this order if you reoffend.  It means if you commit an offence for which you could be sentenced to a term of imprisonment, such as knocking off a box of matches from Woolworths, that will breach the order.

52You must report any change of address or employment to the community corrections office within 48 hours of the making of that change.

53You must not attend upon the community corrections office under the influence of drugs or alcohol.  You must report to and receive visits from the community corrections office.  You may not leave Victoria without the permission of the community corrections office, and you must obey all lawful directions of the community corrections office.

54I am going to order that you undergo assessment and treatment for drug use, and you are also to undergo assessment and treatment for mental health difficulties. 

55I have decided not to impose any work hours as a condition of the community corrections order, because of the extracurial punishment that I am satisfied you have suffered whilst being held in custody on remand.  Are you prepared to enter this order?

56OFFENDER:  Yes. 

57HER HONOUR:  All right.  We will draw up the paperwork.  I note that you cannot be immediately released from custody because you are also being held there in relation to the breach of community corrections which are to be dealt with by the Magistrates' Court on Monday, but no doubt, your counsel can be informed of the decision that has been taken in this court and that will assist you.

58If the community corrections orders are dealt with by way of a further community corrections order, you will be released on that day.  I understand your father can offer you temporary accommodation in North Melbourne at the outset. 
That is likely to be short-lived, and given your age I very much understand that.  But he is seeking to make alternative arrangements for you.  If there is a change of address, as there is likely to be in your case, you need to let Corrections know about it immediately so that a transfer can be made to the appropriate local community corrections office of the address to which you then move.

59Sorry, I forgot to add that I am also ordering a condition of judicial monitoring which will take place three months after you are placed on this order at this point in time.  And I think we will stick to this date, because, even if there is a bit of a delay because of what happens in the Magistrates' Court, I think seeing you sooner rather than later will not be a bad thing.

60So we will have a judicial supervision on 23 August at 9.30.  Now, on that occasion, I will need you to attend here at court.  On future occasions, if you are doing all right, I will order that you need not attend to court for further judicial monitoring.  You can be beamed in from the community corrections office.

61But you and I will be seeing each other on a fairly regular basis, Mr Funnell, after that.  And I remind you that at each judicial monitoring I will have received a report as to your progress so that any difficulties you are having with complying with the conditions of the order will become apparent to me very early in the piece, and action will be taken at an early stage.  All right?  This is not a 'get out of gaol free' pass.  You will have obligations under this order which I will expect you to abide by and to comply with, and I will be making sure that you do, by way of this supervision.  Is that clear?

62OFFENDER:  Crystal.

63HER HONOUR:  Excellent.  Thank you.  Have a seat.  We will get you a copy of that order, and are you appearing for Mr Funnell on Monday?

64MS BURNNARD:  I'm not, Your Honour, but my instructor is and I'll be in close contact with her.

65HER HONOUR:  Instructor is.  We'll get you a copy of the order and she can take it to court.

66MS BURNNARD:  Thank you. 

67HER HONOUR:  So I will not be impressed by good starts, Mr Funnell.  You did a good start last time.  What I will be impressed by is longitude; that is, I will be impressed by ongoing progress on this report, and I will be intervening heavily if that does not happen.  All right?  So you need to keep that in mind.

68So me hovering over your life is meant to be both a threat, and it is also meant to be an encouragement.  And sometimes I find that for people like yourself, it is good to know that you have got a bite-sized chunk of time before you have got to front up and be assessed on your performance rather than, you know, 'I have got 18 months to get this right.'  That sort of attitude.  That will not be happening on this order.

69And one good performance at a judicial monitoring is not going to take you home either.  It seems to me I will need to be seeing you on a fairly regular basis, three months at the outside.  So you know, over that 18 months, depending on how things go, you and I will be seeing each other at least six times.  All right?  Good.  Thank you.  Yes, that is good.

70Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years and order that you serve a minimum term of 12 months.  Thank you.  We will get you to sign that.

71MS BURNNARD:  As Your Honour pleases.

72HER HONOUR:  Thank you.  Mr Funnell, seems it has been a very busy day for you.  You had to go back to work and come back again, and then make
45 phone calls in the meantime.  Is that right?

73MR FUNNELL:  I was (indistinct) 45.  I had a premises to look after, but I managed to ‑ ‑ ‑ 

74HER HONOUR:  That is pretty good going, in the circumstances.

75MS BURNNARD:  Your Honour, might I assist Mr Funnell with signing that order?

76HER HONOUR:  Of course, yes.  That simply outlines the conditions that
I outlined to you, Mr Funnell.  I have declared that the time has already been served by way of pre-sentence detention?

77MS BROWN:  Yes, Your Honour. 

78HER HONOUR:  Good.  Fairly vital.  I should add that, according to the assessment, Mr Funnell remains a high risk of general reoffending.  So we will see whether that is right or wrong.  I will give the photographs back.  Thank you.  It was interesting, because the report - did counsel get a copy of the report?

79MS BURNNARD:  Yes, Your Honour. 

80HER HONOUR:  Yes.  The report said she could not make an assessment because of her contraventions coming up, but I have had, I should say for the record, a direct conversation with her where I indicated, in my view, the fact that Mr Funnell was appearing on Monday had nothing to do with an assessment for suitability in relation to these charges.  And ultimately, she agreed.

81Thank you very much.  I thank counsel very much for their assistance in this matter, and we will adjourn.  Yes?

82MS BROWN:  One brief matter, Your Honour.  The disposal order.

83HER HONOUR:  The disposal order.  Yes, I have got it here.

84MS BURNNARD:  That was never opposed.

85HER HONOUR:  No, I do not see how it could be, really.  Both counsel very helpful and made it much easier for me to simply sentence today, so I am grateful to you.  Thank you. 

86MS BURNNARD:  May it please the court.

87HER HONOUR:  Good.  All done.  Good luck, Mr Funnell.  You can do this. 
There is no reason for you to be coming to court on these sorts of matters.  It is all about drug use.  And you need to - you do not look terribly thrilled, as most blokes do not usually look terribly thrilled when I tell them that, to go and see a psychologist.  But it has been said to me you were dabbling in drugs which is incredibly common, between people from the age of about 18 to 40 in our community.  You have ticked over.

88And there was a reason for that.  Your relationship ended and you had three very important people in your life die.  You have had a fair bit of loss. 
You actually need to explore that.  You have to make a link between that and your drug use, which is probably pretty evident to you.  But you need to discuss things about how to handle those feelings of loss, and how to handle them without turning around and numbing yourself on drug use.

89Drug use has been ruinous for you.  You are a man who should never have appeared before this court.  It is most unusual to see someone of your age, with your history, end up in the position that you have been before this court. 
It simply should not have happened.  Your life has taken an appalling and quite unnecessary turn in the last three to four years.  You need to attend to the mental health difficulties which anyone in that situation has that assailed you.

90Life can be a very precarious business.  It can go terribly well for a while, and then it can take a sharp turn for the worse.  It happens to all of us.  Learning to deal with those sharp turns for the worse is an essential part of wellbeing generally.  So my view is that it is not enough that you simply have drug counselling.  You have to explore and undergo the mental health side of this.

91If you do not like the psychologist that you are teamed up with, and that can happen, you do not then decide that 'I do not want to know about this.  Who are these people?  He is a pain', or whatever it is.  'He did not know what he was doing.'  You go back, you say, 'I do not like him', and you get another one.  And seek the support of Corrections in getting that.  They are a resource as well as an overseer.  The people who do best on the community corrections order actually recognise the resource capacities of a community corrections order.

92The other reason why I like to have judicial monitoring is that sometimes there is a clash between a person such as yourself and the actual community corrections officer who has been assigned, or there is a problem with the high turnover of Corrections staff.  That is something else that you are going to have to deal with.  That is something I like to keep an eye on too.  That is the sort of thing I can sort out.

93So if there is an issue with the psychologist, and it is ongoing, let me know at judicial monitoring.  Not in terms of 'Corrections have been pathetic, the psychologist has been pathetic, and no-one's doing what they should for me.'  But in terms of, 'I am not finding this psychologist helpful, I would like another one.'  I can work in a sort of liaison role for that.

94I am always very interested to make sure that the programs that I have mandated under a community corrections order are appropriately being carried out, so you need to let me know.  But you need to put in as well.  All right?

95Enough lecturing.  We are done for the day.  Thank you very much to Mr Funnell Snr for coming to court today.  I wish you well, sir.  I am expecting to hear good things when I see you in August.  Is that right?  Yes.  Thank you.  Again, thank you, counsel.  We will adjourn to 9.30 tomorrow morning.  Thank you. 

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