Director of Public Prosecutions v Gareth (a Pseudonym)
[2022] VCC 999
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GENE GARETH[1] (A PSEUDONYM) |
[1] To ensure that there is no possibility of identification of the victim, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the offender.
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 11 April 2022 | |
DATE OF SENTENCE: | 24 June 2022 | |
CASE MAY BE CITED AS: | DPP v Gareth (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 999 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – Causing injury intentionally – Common law assault – Aggravated animal cruelty – Breach of bail – Breach of family violence intervention order –Serious offending – Permanent intellectual disability of offender – No criminal history
Legislation Cited: Crimes Act 1958, s18; Sentencing Act s18
Cases Cited:R v Worboyes [2021] VSCA 169, R v Verdins & Ors (2007) 16 VR 269; R v Boulton [2014] VSCA 342
Sentence: 295 days imprisonment (reckoned as served) followed by a community correction order for a period of two years
Section 6AAA: 30 months imprisonment with a minimum non-parole period of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Fitzgerald | Victoria Legal Aid |
HIS HONOUR:
1Gene Gareth[2], you have pleaded guilty on Indictment K12504219 to a charge of common law assault and another charge of causing injury intentionally. The maximum penalty for common law assault is five years. The maximum penalty for intentionally causing injury is 10 years' imprisonment. You have also pleaded guilty to three related summary offences: aggravated cruelty to an animal which carries a maximum penalty of two years' imprisonment, breach of bail - three months' imprisonment and breaching a family violence intervention order - two years' imprisonment.
[2] A pseudonym
Background of the offending
2You were born in April 1978. You are now 44 years old. At the time of the offending in September 2019 you were living at an address in Yarram with your mother, the victim in this matter, Erin Gareth[3].
[3] A pseudonym
3Since you were granted bail on 30 June 2020 you have been living at Charlton House, a DHHS Disability Interim Justice Accommodation facility in Bundoora. You were in custody for 295 days or nearly 10 months before being granted bail.
4When you were in Year 7 at school you were diagnosed with an intellectual disability and assessed as having an IQ of 63. The school provided you with a support aide. You were bullied because of your disability, and you ended up leaving school in Year 11.
5Going back into your history, when you were 14 years old your father committed suicide. The material suggests he had problems with alcohol. Your half-sister Milly,[4] Erin Gareth's daughter from an earlier relationship, was raised with you in Yarram. At the time of your father's death, she was living with your maternal grandparents. Later she alleged that your father had sexually abused her when she was a child. It is not entirely clear to me when she first made that allegation. Nonetheless, you did not accept this. The allegation upset you and you harboured ill-feeling towards your sister as a result.
[4] A pseudonym
6After school you worked casually doing some gardening work at the Yarram Hospital and in the mid-1990s you worked at a sawmill doing odd jobs. You also had casual employment at local farms. Some of this employment was supported by disability employment agencies. Otherwise, you have relied on a disability support pension.
7As regards your background, you mother did deal with this to some extent in her first statement to the police and I will briefly quote from her statement. She said this:
'Gene’s father passed away by suicide on 15 November 1991. Gene has always had difficulty with his thought processes. He had learning difficulties at school and processing information. Gene has always had difficulty in social situations and conversing in large crowds. He had varying employment after finishing school but finished working in 2011 after a heart operation and threw the towel in a bit.'
8Then she went on to say with respect to your heart condition:
'Gene was born with a hole in his heart and he had his first operation when he was 18 months old when it was identified he had Von Willebrand disease which is a blood deficiency.'
9She goes on to talk about some of the difficulties in your behaviour.
10You have had no intimate relationships as an adult. You have been a socially isolated person who has had no meaningful friendships. You lived alone with your mother in Yarram after your father's death in 1991 until this offending.
11This offending is summarised in detail in the Prosecution Opening, which very fairly includes references to your disability and its contribution to the serious offending you committed. I will summarise those circumstances.
Circumstances of the offending
12The Prosecution Opening describes your life as characterised by strict routines. If they are disrupted, you become very upset. Your mother said this in her statement:
Gene's life is very routine and if that routine is distracted it tends to upset him. One of the routines is that Gene makes the first cup of coffee in the morning and I make the second. Sometimes this changes, but it's mostly this way.'
13The other aspect of your behaviour referred to in the Prosecution Opening is that you were controlling of your mother. It seems that you would become upset when she was socialising or even talking to other people. This included when other family members, including her grandchildren, were present at your home.
14Turning then to the circumstances that gave rise to the offences in this case. On 4 August 2018 Erin Gareth received a phone call from her grandson (Milly’s son) informing her that her ex-husband had passed away in Merimbula. After that phone call Erin Gareth observed a change in your behaviour and a deterioration of your mood.
15You had a dog named Lady that Erin Gareth had given you for your 30th birthday in 2008. On 4 August 2018 at about 10 pm you took Lady from your mother's bedroom outside to urinate. This was the usual routine. This time, however, once outside you kicked the dog. You then took Lady back into your mother and told her that you had kicked Lady. Not long after this Lady died from injuries caused by you kicking her. You said to your mother, 'It's your fault that Lady died. I don't want you to have anything to do with any family'. Those are the circumstances of the related summary charge of aggravated cruelty to an animal.
16On 21 December 2018 your mother was driving you home from Sale when out of nowhere, and seemingly for no reason, you slapped her to her left ear. She felt pain and burning. She pulled the car over immediately and said, 'Don't you ever do that again. If you ever hit me again, you'll be out the door so fast'. You said, 'I'm sorry, I'm sorry. It'll never happen again'. Your mother thought your behaviour was caused by the fact that you were mourning Lady's death. This is the basis of the common assault charge.
17The next incident took place in September 2019. On 23 September 2019, Jane[5] and Michael[6]your niece and nephew, Milly’s children, came over to visit. Jane had her three children aged five and under with her. When Jane pulled up in the driveway with the others, you approached the passenger side of the car and said, 'I'd appreciate it if you would just go'. You were upset and when one of the grandchildren asked you how you had been you replied, 'Shithouse; my dog died'. Jane said to you, 'I have a new baby'. You did not reply but gave Jane what she described as 'the shock look expression'. You stood staring at the grandchildren, occasionally looking back over your shoulder to the house. You asked them to leave and they left.
[5] A pseudonym
[6] A pseudonym
18You then went inside and your mother asked you, 'Who was that?' You told her it was 'somebody looking for directions'. Your mother knew you were lying but she did not press you as she did not want to antagonise you. That evening you told her you had been speaking to her grandchildren.
19The next morning when Erin Gareth woke up at about 5.30 am you were already out of bed. She went outside for a cigarette and when she walked back in you were sitting with your back to the entrance and your coffee cup at the end of the kitchen table. She got up and turned towards the kitchen and said to you, 'Are you ready for your second cup?' As I said earlier, making each other cups of coffee throughout the morning was part of you and your mother's routine.She put the kettle on. She turned away from you.
20You approached her holding a meat tenderiser and said, 'You think this is fucking funny'. You struck her to the head with the meat tenderiser. You pushed her to the ground and you struck her again to the forehead with the meat tenderiser. She started bleeding profusely. She rolled over onto her stomach and placed her hands around her head to protect her skull. You climbed on top of her, pinning her down and then struck her a further nine times forcefully to different parts of her head. Some of those strikes hit her fingers and hands but the majority hit her skull. She thought she was going to die.
21After a few minutes you put the meat tenderiser down. You then placed both your hands around her throat and strangled her for what is estimated to be one to two minutes. She was able to position herself so that she could get some air into her lungs. She thought she was going to die and attempted to scream to a neighbour, who occupied a unit on the property not far from the main residence where you and your mother lived. You then released your grip on her throat and placed your hand across her mouth to prevent her from screaming.
22You said to her, 'This is your fault. I'm going to give that money to the church'. Your mother said to you, 'God wouldn't want blood on him. God wouldn't like what you're doing'. You released your grip and you got up and you walked outside. Ms Gareth continued to bleed from her head, but she managed to get to her feet. You were covered in blood and you went next door to the neighbour’s unit and said, 'I've hurt Mum, I've hurt Mum'. You were mumbling, 'Mum had no right to ask those visitors to come here'.
23The neighbour then went to help your mother. While he was doing this you were saying, 'I've got Dad's suicide tape. Would you like to hear it?' The neighbour eventually got Erin Gareth to his vehicle and took her to the Yarram Hospital where she was admitted to the Emergency Department. She was subsequently taken to the Latrobe Regional Hospital.
24Dr Phillipa Brook, a forensic physician employed by the Victorian Institute of Forensic Medicine, reviewed Ms Gareth's file from the Latrobe Hospital and noted the following injuries:
· choking;
· multiple wounds to the frontal and parietal areas of her scalp which were cleaned and closed with multiple staples;
· a bruise to her left eyelid;
· a bruise to her left upper arm and shoulder;
· a bruise to her right ear;
· bruises to her left hand and upper arm;
· an abrasion to her left cheek;
· an abrasion and bruising to her neck;
· ongoing memory loss and headaches; and
· symptoms of post-traumatic stress disorder.
25A CT scan excluded any brain haemorrhage or cervical spine injury.
26Ms Gareth provided a statement in which she indicated a decline in her health and that she experienced ongoing headaches. She described a deterioration in her memory and said that she was finding it impossible to operate loud machinery and almost impossible to be in large crowds.
Arrest and interview
27You were arrested on 24 September 2019.
28When you were interviewed by police you told them that you had lied to your mother about you niece and nephew and their children attending because you did not want your mother to have a relationship with them. You said you blamed your half-sister, their mother, for your father's suicide. You said you had difficulty sleeping the night before the assault because you were upset by the death of your dog and by their visit. You said you were also thinking about who would look after you when your Mum died and whether you would ever have a partner, and if you did whether that partner could look after you like your mother does. You said you were confused over the allegations that your father had molested your sister.
29You made admissions to being angry just prior to the assault and snapping, and grabbing the mallet and striking your mother when she was facing away from you. You admitted striking your mother repeatedly with the mallet. You accepted you had done so with significant force. You said that you believed your mother would be hurt and possibly killed if you got angry enough and continued hitting her for long enough. You also made admissions to strangling your mother and said something in your brain made you stop.
30In relation to kicking Lady, you said you were angry about your sister's children trying to get close to your mother and you did not want this.
31You were remanded in custody until you were bailed in 2020 with conditions that you were not to contact witnesses for the prosecution and you were to comply with an intervention order made against you in favour of your mother. You were not to go to Yarram. You were bailed to live at Charlton House.
Further offending
32On 10 December 2020 you attended at the Mill Park police station with a residential care worker, Mr Michael Tompsett. Mr Tompsett told police you had breached both your bail conditions and the intervention order. Police conducted a brief interview with you and you said your mother had contacted you and told you that the phone contact condition had been lifted. You admitted going to your mother's address on 7 December 2020. You said you understood you were in breach of the intervention order. You said you did not let your residential workers know you were going.
33Police contacted your mother. She did not want to provide a statement and did not want you to be charged over these breaches. She told police she was not willing to provide a statement because you had 'been through enough'.
34Your neighbour, however, made a statement confirming he saw you at your mother's address. Phone records show you had contacted your mother by phone on 30 November 2020.
35You were ultimately granted bail in respect of this further offending.
Victim impact
36Your mother declined to make a victim impact statement, but I have referred to the effects of the assault that she described in her second statement and also the reasons she detailed for not wanting to make a statement about the breach offences. The assault here though was a terrifying one and I have no doubt that the impact, both physical and psychological, on your mother will be enduring.
37This matter was listed for a contested committal on 14 January 2022, but an agreement for resolution was struck the day before and no witnesses were cross‑examined.
Guilty plea
38You are entitled to a significant benefit for the utilitarian value of your plea which is heightened in the current circumstances where this court faces a very significant backlog of trials because of the pandemic. The increased utilitarian value of a plea in the current circumstances was recognised by the Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169 where the court said the sentencing discount must be palpable. I apply those principles.
39Your plea of guilty has also spared your mother the trauma of having to give evidence and relive this distressing event. I accept your plea of guilty demonstrates a willingness to facilitate the course of justice and is indicative of remorse for your offending. You must receive a significant sentencing discount for your plea of guilty.
Gravity
40Objectively assessed, this is very serious offending. The assault on your mother was a shocking event, with obvious potential to have caused extremely serious or even fatal injuries. It seems to me it was largely a matter of luck that the consequences were not even more serious. The intentionally causing injury charge carries a maximum penalty of 10 years' imprisonment reflecting its seriousness. The behaviour towards your dog was also brutal, causing her death. Your conduct in attacking your mother would be incomprehensible if committed by a person without your intellectual deficits and mental health problems and it would merit a substantial and lengthy sentence of imprisonment.
Psychological material
41Three psychological reports were tendered by your counsel Mr Fitzgerald.
42The first of those is a neuropsychological report from Ms Laura Scott who is a clinical neuropsychologist. Ms Scott assessed you when you were in prison in March 2020.
43She conducted several psychological tests. She assessed you as having a Full‑Scale IQ of 60, which is lower than what I understand to be the figure when you were first identified as intellectually disabled. She also administered tests relating to psychological distress and said that you were experiencing a severe level of distress. Ms Scott said you had an intellectual disability in the mild range and that historically you required considerable assistance from your mother and community services to function in the community. Your intellectual disability is described in the report as 'lifelong and permanent'. Your thinking is rigid and inflexible, and you were heavily reliant on the rules and routine your mother provided. You have a tendency to become stuck on an idea, phrase or action and you find it very difficult to shift your thinking.
44Ms Scott said that the symptoms of your intellectual disability would have been operative at the time of the offending. She was also of the view that you were experiencing intense psychological distress at the time of the offending. The basis of this distress is the background of your sister's allegations of childhood sexual abuse against your father about which you had been ruminating. This was something you were plainly angry about.
45Ms Scott noted various traumatic events, including your sister's return to Yarram in 2015 which ignited concerns surrounding her allegations of sexual abuse against your father. The disability overview report supplied with the justice plan assessment refers to your admission to Latrobe Hospital in 2015 for mental health concerns, including suicidal thoughts.
46Ms Scott describes you as having experienced significant and cumulative trauma across your life. This trauma would have been complicated by your reduced level of cognitive function. She said your recovery from your psychological trauma will take time and require intensive supports. Ms Scott noted that you have been heavily reliant on the structure provided by your mother. She describes you as extremely naïve, with a limited capacity to cope with novel or unexpected situations. She further describes you as extremely reliant on routine and slow to adjust to change.
47Ms Scott describes you as extremely vulnerable in a custodial setting and said that this vulnerability has made you fearful within the prison environment. She expressed deep concern about the impact of ongoing detention on your mental health and said there is a high risk your mental health will deteriorate further in prison. In her report she describes your psychological distress as being at ceiling levels. She notes a risk of aggression or self-harm behaviours and says that you are at risk of institutionalisation in a custodial setting. She also observed that you had witnessed or been made aware of acts of serious violence in the time that you were remanded in custody in prison.
48Finally, Ms Scott describes a significant link between your traumatic experiences, your social isolation, increasing mental illness and cognitive deficiencies to the offending in this case. At p18 of her report she said this:
'There seems to be a significant link between Mr [Gareth’s] traumatic experiences, exposure to family members associated with those experiences and acts of violence. There also seems to be broader factors of a lack of meaningful daily occupation, social isolation and increasing mental illness on the background of significant complex trauma. Encouragingly, Mr [Gareth] has responded well to interventions in the past addressing education, employment and mental health.'
49The next report tendered was that of Dr Joseph Sakdalan dated 2 July 2020. You also spoke to Dr Sakdalan when you were in prison. He assessed you as having a moderate risk of committing future violent offences. The scenario placing you most at risk would be one of emotional distress combined with contact with your mother. Dr Sakdalan says your risk of violence would be substantially reduced if you are not allowed to have contact with your mother, half-sister or her children. Dr Sakdalan was of the view that you are a low risk of violence towards the general community. He noted you have no history of violent offences other than these matters.
50The third report was from Ms Emily Antolasic dated 8 March 2022. Since 5 July 2021 you have undergone counselling with Ms Antolasic who is a psychologist and a clinical neuropsychological registrar. You were referred to her by your NDIS support coordinator to manage symptoms of anxiety and depression and to assist with social interaction and emotional regulation.
51Ms Antolasic described your symptoms of depression, anxiety and stress as having improved. She notes that because of your intellectual disability you have difficulty understanding social conventions, body language, sarcasm and other more complex verbal communication. She said you may be vulnerable to exploitation from other inmates if sent back to prison. She notes that because of your complex mental health and cognitive impairments you need assistance regulating your emotions and the activities of daily living. She said your mental health is likely to deteriorate if you do not have access to regular psychology, occupational therapy and support staff.
52She offered the view that you meet the diagnostic criteria of an adjustment disorder with mixed anxiety and depressed mood. She notes that you have expressed regret and remorse for your actions towards your mother.
53Since you were granted bail in 2020 you have lived at Charlton House in Bundoora. Charlton House is a short-term accommodation option for people with a disability. It is managed by the Forensic Disability Service of the Department of Families, Fairness and Housing. Mr Jason Simms, the unit manager of Charlton House, provided a letter dated 2 February 2022. Charlton House is a supervised environment.
54Mr Simms said that when you arrived at Charlton House you presented as anxious and scared and very vulnerable. You discussed with staff at Charlton House several incidents you had witnessed in prison which had a traumatic impact on you. Mr Simms said it took a lot of reassurance from staff that you would be safe at Charlton House.
55Mr Simms said that during the early part of your stay you demonstrated minimal independent living skills and needed a lot of support and reassurance from staff. However, since then your skills have increased significantly. You are now able to cook several meals for yourself, you can complete your own shopping, you have the confidence to explore the area in which you live independently and you can use public transport.
56Mr Simms says that when you first arrived at Charlton House you had limited external supports in place. You were allocated a Disability Justice support worker shortly before your release from prison but other than that there were no external supports in place. You were not aware of what support services you could access. Mr Simms says it was clear that prior to your imprisonment your main form of support was your mother.
57Since you have been at Charlton House you have had your disability pension reinstated and an NDIS plan and coordinator have been put in place. A local general practitioner has been engaged to support you and an independent psychologist provides you with psychological support. Mr Simms says he believes that with continued access to external support services and treatment from a psychologist you will continue to grow and develop your independence.
58Mr Fitzgerald submitted that the plan for your accommodation is for you to stay at Charlton House until sentence is resolved in this case. Thereafter, the plan is that you will live in long-term supported accommodation. Mr Fitzgerald reiterated this morning that that is the plan for you in the future.
59Mr Fitzgerald submitted that at the time of these offences you were living a sad, socially isolated life where you were entirely reliant on your mother for support. Your intellectual disability deprived you of the ability to live independently and properly look after yourself. Mr Fitzgerald submitted that since being released from custody, and in the time you have been living at Charlton House, your personal circumstances have improved dramatically. He submitted that I should take a positive view of your rehabilitation and submitted you are a low risk of further violent offending with support.
Application of Verdins’ principles
60Mr Fitzgerald submitted that the principles in the case of Verdins have application. He submitted, given your intellectual disability, your moral culpability for this offending is diminished and you should not be regarded as a vehicle for general deterrence. He submitted that the time you were in prison on remand imposed a substantial burden on you because of your intellectual deficits and other mental health issues, and that a sentence of imprisonment would likely cause your mental health to deteriorate.
61Mr Batten accepted that there is a realistic connection between your mental state and the offences in this case and that the Verdins principles submitted apply.
62Your mental state issues are complex, and they are the cause of your isolated lonely existence, which did result in an unhealthy reliance and dependence on your mother. It is easy to see how in your circumstances of isolation your mother became your only real support. Your dependence on your mother was such that you over time sought to control her interaction with other family members. This was in the context of your objection to your sister because of her allegations against your father. It seems to me that your personal history, mental health issues and clear cognitive deficiencies resulted in a level of mental stress you were not able to cope with. You simply did not have the psychological resources to deal with the convergence of these issues.
63There is in my opinion a clear link between your psychological deficits and the offending in this case. Because of your intellectual disability, your rigid thinking, your psychological stress and your limited social skills, you did not have the emotional maturity and coping mechanisms to deal with the perceived problem of contact between your mother and your sister and her offspring.
64You have never done anything like this before. In my opinion with support, and if any contact with your mother is regulated, the risks of you reoffending again are low. Appropriate support can be facilitated through a justice plan, through the NDIS and through a community correction order. I assess your prospects of rehabilitation as very good in circumstances where these supports are in place.
65I accept the submission that you have begun a process of rehabilitation.
COVID-19 pandemic
66I accept that the burden of the period you spent on remand was increased by restrictions in the prison system in response to the pandemic. This meant that visits were suspended and access to programs was restricted. I have no doubt at all that your experience of over nine months in prison was a very difficult one for someone in your circumstances.
Submissions
67Mr Fitzgerald submitted that in the circumstances of this case a combination order of imprisonment and a community correction order is the appropriate sentence. He submitted that the time served in this case is a sufficient period to meet the purposes of sentencing and that you should not be returned to prison but released on a community correction order. Mr Batten accepted, it seemed to me, the mitigating features referred to by Mr Fitzgerald, but submitted the gravity of the offences in this case requires a sentence involving a non‑parole period and a head sentence. Such a disposition would involve returning you to prison.
68In this matter I sought an assessment as to your suitability for a community correction order, a justice plan, a disability overview report and a certificate of intellectual disability. I have been provided with that latter certificate indicating that you are a person with an intellectual disability.
69The Disability Overview Report written by Ms Nicole Hillard sets out your background, mental health issues and progress at Charlton House. The matters detailed in the report are in accordance with the material in the three psychological reports to which I have previously referred. None of this material is in dispute.
70The Justice Plan recommendations are as follows: that you engage with the Disability Justice coordinator for the duration of the community correction order and participate in further planning assessment and referrals as recommended; that you participate in a referral for Forensic Disability Clinical Services or other appropriate services; and that you attend therapeutic psychology sessions with Brain Matters or a similar treatment service as recommended.
71The Community Correction Order Assessment Report sets out your account of the offences again, which is broadly consistent with the accounts in the psychological material. A risk assessment was conducted. You were assessed as a low risk of reoffending. The assessment report refers to the positive impact of your placement at Charlton House. However, the report identifies that you have remained socially isolated in that period. You have not had any contact from any friends or companions in that time. You have, however, expressed interest in developing new social connections and a willingness to join the Men's Shed organisation. You are considered suitable for a community correction order with a justice plan attached.
72In discussion this morning Mr Fitzgerald pointed out to me in the Disability Overview Report that your mother would like you to move closer to where she lives in Yarram and there has been phone contact between you and your mother. For what it is worth, I do not think it is desirable that you return to live with your mother, but it is plain that you have a close bond with her, and it seems some ongoing contact is desirable. But I agree with the submission of Mr Fitzgerald that a return to Yarram seems undesirable. However, where exactly you live will be a matter for the NDIS worker in combination with your justice worker and Corrections.
73This was extremely serious offending. The potential for much worse harm from the cause injury offence was very real. The harm that you did cause was substantial enough. You savagely assaulted the person who has been your only support throughout your life. In the absence of the very significant mitigating factors that apply, a substantial sentence of imprisonment with a non‑parole period would have been the only option. However, I am of the view that your moral culpability is very substantially reduced by reason of your intellectual disability and your mental health issues and the lonely, isolated life you have led. You are a person who has led such a life because of your cognitive deficiencies and psychological conditions.
74In my opinion you are not an appropriate vehicle for general deterrence and the requirements of specific deterrence and denunciation are largely met in your case by the period of over nine months you spent in prison. You are a low risk of reoffending with proper support which you did not have when these offences occurred. Moreover, a process of rehabilitation has clearly commenced and with the right support, as I said earlier, the risk of reoffending is low. I am required by the Sentencing Act to facilitate where possible your rehabilitation. Community protection is, in my opinion, best achieved by addressing your rehabilitative needs in the community.
75In the case of R v Boulton [2014] VSCA 342, the Court of Appeal recognised that a community correction order can be imposed in serious offences for a period of years with conditions both punitive and rehabilitative, and, therefore, a sentencing court should ask the question whether there is any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option.
76Ultimately, balancing all the relevant matters as best I can, I have decided that the appropriate sentence is a combination sentence. In my opinion, in all the circumstances, it is not necessary, and it would serve no useful purpose to send you back to prison. The prison sentence I impose will be the same as the time served and you will be released on a community correction order for a period of two years.
Sentence
77Mr Gareth, if you could stand up, please.
78On the charge of common law assault you are convicted and sentenced to two months.
79On the charge of intentionally causing injury you are convicted and sentenced to a period of imprisonment of 295 days.
80On the related summary offence of aggravated cruelty to an animal you are convicted and sentenced to a period of imprisonment of six months.
81On the related summary offence of breach of bail you are convicted and sentenced to a period of imprisonment of seven days.
82On the breach of intervention order related summary offence you are convicted and sentenced to a period of imprisonment of one month.
83The base sentence is the injury charge and all the other sentences are concurrent. Look, there is a degree of artificiality in the sentences I impose in circumstances where it is a combination order and I will come back to what can happen in the event of a breach.
84Pursuant to s18 of the Sentencing Act I declare the pre-sentence detention to be 295 days which will be reckoned as time served.
85Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a sentence of 30 months, with a minimum non-parole period of 18 months.
86Was there a disposal order sought, Mr Batten?
87MR BATTEN: Yes. Yes, there is.
88HIS HONOUR: I will make that order. The conditions of the Community Correction Order will be that it will run for two years. Supervision, mental health, a Justice Plan and judicial monitoring - now, those are the conditions that were recommended and I will be imposing all those conditions. Look, he is on a disability support pension and I can't see the point in his circumstances of imposing community work.
89So those are the conditions, Mr Gareth. Look, every community correction order has core conditions. You will have to report to Corrections within 48 hours. I think it's South Morang, isn't it? Anyway, we'll print it out in a moment. So you have to do that. You've got to report to Corrections in 48 hours. Right. Corrections have to know where you're living. So if you change your address you've got to - Reservoir Correctional Services which is at 909 High Street, Reservoir. You've got to go there in 48 hours. Now, you can't commit another offence. Do you follow?
90OFFENDER: Yes.
91HIS HONOUR: Now, if you breach an intervention order that's in place in relation to your mother, you understand, like you did before - - -
92OFFENDER: Yes.
93HIS HONOUR: If you do that, well, you breach this Community Correction Order.
94OFFENDER: Yes.
95HIS HONOUR: You understand?
96OFFENDER: Yes.
97HIS HONOUR: Now, I haven't got the current terms of the order, but apparently it allows some contact at the moment by phone, does it?
98MR FITZGERALD: By phone it does, Your Honour, yes.
99HIS HONOUR: All right. So you're allowed to phone your mother apparently, but Mr Fitzgerald will go through all this with you. But there's no contact at the moment is that right, Mr Fitzgerald? No contact allowed.
100MR FITZGERALD: Other than by phone.
101HIS HONOUR: Other than by phone. No in-person contact?
102MR FITZGERALD: No in-person contact.
103HIS HONOUR: Do you understand?
104OFFENDER: Yes.
105HIS HONOUR: If you were to go down to Yarram to see your mum that's a breach.
106OFFENDER: Yes.
107HIS HONOUR: And just not only a breach of an intervention order, it's a breach of this Community Correction Order and I'll tell you in a moment what can happen. If that's what happens - so you can't commit another offence. Now, you've got to receive any visits and you've got to report to Corrections as required. If you change your address you've got to tell Corrections that you've done so. You can't leave Victoria without telling Corrections and you have to obey all Corrections' lawful instructions. All right.
108So if you go missing and you don't pay any attention to what Corrections are asking you to do you breach the order. All right. Supervision, that means you're to be supervised by Corrections for two years. Treatment and rehabilitation - yes, specifically I think that relates to mental health. So something will be organised. I suspect it will be a referral or an ongoing referral to the psychologist you're seeing, Ms Antolasic. So you've got to keep doing that.
109A justice plan. Now, I went through that earlier when I was reading the remarks. Ms Hillard provided a justice plan report. So here Corrections are working hand in hand with Justice Disability Services or the Department of Justice and Community Safety to help you. You understand? And on top of that you'll have your NDIS assistance as well. So you've got a lot of support and assistance.
110OFFENDER: Yes.
111HIS HONOUR: All right. So you have to participate in the services of the Justice Plan for two years. I will make one date for judicial monitoring at this stage on 4 October this year at 9.15. You can come in here if you want or, alternatively, an internet connection can be arranged. Corrections will give me a report which tells me how you're going. If you're going okay we may not need further monitoring, but we'll see what's happening. All right. So you've got to come back before me in October.
112Now, if you breach this order, if you don't do what you have to do, if you breach the mandatory conditions and the special conditions, if you reoffend, then you're in breach. The matter is brought back before me. All right? Then one of the options is that I cancel the order and I vacate the prison sentences that I impose. As I said to Mr Fitzgerald, there's a bit of artificiality in the prison sentences because it's combined with a correction order that runs for two years. So I would then reimpose the prison sentences potentially and cancel the order. Everything would be - you'd be up for resentencing. Do you understand?
113OFFENDER: Yes.
114HIS HONOUR: We go back to the beginning and you might have to go back to prison if that happened. All right. So you can't breach the order. Now, you've got to consent to this order. Do you consent to a community correction order?
115OFFENDER: Yes. Yes.
116HIS HONOUR: All right. Mr Fitzgerald, could you take that to - - -
117MR FITZGERALD: Yes, Your Honour.
118HIS HONOUR: Could you just take a little bit of time and explain it and I'll get him to sign it.
119MR FITZGERALD: Yes, Your Honour, I'll do that. Your Honour, just my - the report says the reporting base would be the - as Your Honour indicated in discussion South Morang.
120HIS HONOUR: Yes, I think that's where I got it from. Is there a Corrections at South Morang? I've got no idea.
121ASSOCIATE: Yes, Your Honour.
122HIS HONOUR: There is, is there? So he's at Bundoora right now. So South Morang is closer. It depends where it is in Bundoora I guess. Look, I might leave it at Reservoir. There's not much difference between - - -
123MR FITZGERALD: No. No, I suppose not, Your Honour.
124HIS HONOUR: Do we know where Charlton - how deep into Bundoora is - - -
125MR FITZGERALD: I do not know I'm sorry.
126HIS HONOUR: No, all right.
127UNIDENTIFIED SPEAKER: It's at the top end. It is probably closer to South Morang, but I don't suppose - it's, you know, much of a much I think. It is marginally closer. It's probably more direct.
128HIS HONOUR: We'll make it South Morang. Sorry, Reservoir is more direct - - -
129UNIDENTIFIED SPEAKER: No, South Morang is more direct.
130HIS HONOUR: We'll make it South Morang.
131MR FITZGERALD: If Your Honour pleases.
132HIS HONOUR: Because that's what I think the report said so - - -
133MR FITZGERALD: It is. I just noted it when Your Honour mentioned it.
134HIS HONOUR: Yes. No, I thought - I knew I'd seen South Morang somewhere.
135MR FITZGERALD: Yes, in McDonalds Road.
136HIS HONOUR: Yes. All right. South Morang it is.
137MR FITZGERALD: Thanks, Your Honour. I'll take that down once - - -
138HIS HONOUR: Yes. And I'll make that order - disposal order I think it is. All right. We'll just change that. Mr Gareth, do you understand all of that that I've just explained to you?
139OFFENDER: Yes.
140HIS HONOUR: What happens if you commit another offence?
141OFFENDER: Um, I'll go back to gaol because I've breached the, ah, custodial order.
142HIS HONOUR: And what happens if you go down to Yarram to see your mother, is that an offence at the moment?
143OFFENDER: I'll have to appear before you and go back to gaol.
144HIS HONOUR: All right. I think I made that disposal order last time, Mr Batten, so it's done.
145MR BATTEN: Yes, Your Honour.
146HIS HONOUR: Thanks, Mr Fitzgerald.
147MR FITZGERALD: Thank you, Your Honour.
148HIS HONOUR: All right. Thanks both of you. Mr Batten, thanks for attending today - appearing today in the circumstances where you've got COVID.
149MR BATTEN: Thanks, Your Honour.
150HIS HONOUR: So thank you. All right. Thanks, Mr Fitzgerald.
151MR FITZGERALD: Thank you.
152HIS HONOUR: I'll adjourn till 1.30 I think it is.
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