Director of Public Prosecutions v Hall
[2022] VCC 1137
•15 July 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00735
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN HEATH HALL |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2022 and 16 June 2022 | |
DATE OF SENTENCE: | 15 July 2022 | |
CASE MAY BE CITED AS: | DPP v Hall | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1137 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: intentionally cause injury – threat to kill – kidnapping (common law) – attempt to pervert the course of justice (common law) – persistent contravention family violence intervention order – theft – commit indictable offence whilst on bail – breach terms of bail – absence of remorse – mild intellectual disability - no nexus between intellectual disability and offending shown – no reliance on Verdins – disadvantaged background – prospects of rehabilitation guarded - COVID-19 considerations
Legislation Cited: ss30B and 30A(1) Bail Act 1977 (Vic); ss18, 20 and 74(1) Crimes Act 1958 (Vic); ss123(2) and 125A Family Violence Protection Act 2008; ss3(1), 5(2H), 6AAA and 18(4) Sentencing Act 1991 (Vic)
Cases Cited:Brown v The Queen [2020] VSCA 60; Bugmy v The Queen (2013) 249 CLR 571; DPP v Hall [2017] VCC 393; DPP v Josefski (2005) 13 VR 85; Muldrock v The Queen (2011) 244 CLR 120; R v Verdins (2007) 16 VR 269; The Queen v John Healy (unreported); The Queen v Madex [2020] VSC 145; Worboyes v The Queen [2021] VSC 169
Sentence: Total effective sentence of five years and eight months’ imprisonment, non-parole period of three years and nine months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Gray | Office of Public Prosecutions |
| For the Accused | Mr R Backwell | McNally & Gleeson Lawyers |
HER HONOUR:
1JUSTIN HEATH HALL, you are to be sentenced in respect of six charges on Indictment No. L12601085. Those charges are:
· one charge of causing injury intentionally contrary to section 18 of the Crimes Act 1958 (“the Act”) (Charge 1);
· one charge of making a threat to kill contrary to s20 of the Act (Charge 2);
· one charge of kidnapping contrary to common law (Charge 3);
· one charge of theft contrary to s74(1) of the Act (Charge 4);
· one charge of attempting to pervert the course of justice contrary to common law (Charge 5); and
· one charge of persistent contravention of a Family Violence Intervention Order or Family Violence Safety Notice contrary to s125A of the Family Violence Protection Act 2008 (Charge 6). These charges are the subject of Indictment No. L12601085.
2You are also to be sentenced in respect of related summary offences contained in Notice of Related Summary Offences dated 12 August 2021. Those charges are:
· Charge 7 – committing the indictable offence of kidnapping whilst on bail, contrary to s30B of the Bail Act 1977;
· Charge 8 – contravene a conduct condition of bail by failing to notify the informant of a change of address contrary to s30A(1) of the Bail Act;
· Charge 25 – contravene a final Family Violence Intervention Order by communicating with the victim contrary to s123(2) of the Family Violence Protection Act; and
· Charge 26 – another charge of contravening a final Family Violence Intervention Order by communicating with the victim contrary to s123(2) of the Family Violence Protection Act.
3The maximum applicable penalties for the charges on indictment are:
· intentionally causing injury – 10 years’ imprisonment;
· making a threat to kill – 10 years’ imprisonment;
· kidnapping – 25 years’ imprisonment. This is a Category 2 offence pursuant to s3(1) of the Sentencing Act 1991. Accordingly, a term of imprisonment must be imposed on this charge unless one of the exceptions contained in s5(2H) applies. There is no suggestion that any relevant exception applies;
· theft – 10 years’ imprisonment;
· attempting to pervert the course of justice – 25 years’ imprisonment; and
· persistent contravention of a Family Violence Intervention Order – five years’ imprisonment.
4The maximum applicable penalties for the related summary offences are:
· committing an indictable offence whilst on bail – three months’ imprisonment or a fine of three penalty units;
· contravening a conduct condition whilst on bail – three months’ imprisonment or a fine of 30 penalty units; and
· contravening a Family Violence Final Intervention Order – two years’ imprisonment or a fine of 240 penalty units.
5You pleaded guilty when arraigned before His Honour Judge Tinney on 3 September 2021. The matter was adjourned on that date. Your case was eventually listed for plea hearing before me on 10 March 2022.
Circumstances of offending
6The circumstances of offending are well set out in the Summary of Prosecution Opening upon Plea dated 17 February 2022, a copy of which was tendered as Exhibit A. You accept that the contents of that document accurately summarise the facts relevant to the charges before me. Rather than repeat the entirety of that document I shall attach a copy of Exhibit A as Annexure A to these reasons for sentence.[1]
[1]Exhibit A as attached to these remarks has been amended for consistency with the anonymisation of the victim’s details in the remarks, and to remove other identifying details of the victim.
7By way of summary, however, you and the victim Ms Joyce Rogers[2], who was aged 30 years at the time of offending, had been in a domestic relationship for approximately one year. You committed the majority of the offences on 2 November 2020 after both you and Ms Rogers had consumed methylamphetamine. The night before, you started an argument with Ms Rogers. You screamed at her, accusing her of making a pornographic video with one of your friends. You thought the activity had been captured on an SD card in a GoPro device.
[2] A pseudonym
Charges on indictment
8Charge 1, intentionally cause injury, is a rolled-up charge including five acts of violence you perpetrated over a period of time against Ms Rogers after you accused her of making the pornographic video and after demanding to see it. During the period covered by Charge 1, you used a plank of wood to strike Ms Rogers, using a motion as if you were swinging a baseball bat. You struck Ms Rogers on her left leg and left arm with some force. Ms Rogers felt immediate pain. You then demanded the SD card saying “I’ll give you 20 seconds to find it.” That is the first act of violence covered by the charge.
9You placed the plank of wood down and continued assaulting Ms Rogers, slapping her face and hand. She pretended to search for the SD card, knowing that there had never been such a card.
10While Ms Rogers was searching for the card, you became angrier. You grabbed a roll of black duct tape and used it to bind Ms Rogers’ mouth, face and hands. You taped one of her hands above her face and the other below her face. The tape was put over the bridge of Ms Rogers’ nose, causing her pain. You then grabbed a towel and wrapped it around her head, cutting her air supply. This is the second act of violence included in the rolled-up charge.
11You released your grip of the towel and Ms Rogers fell to the floor. Whilst on the floor you used your foot to put pressure on her spine. Ms Rogers quickly got up off the floor and continued to search for the non-existent SD card. During the search, you noticed a box of condoms in a kitchen cupboard. You believed Ms Rogers had used them with someone else. You walked to the back door and picked up a crowbar before walking back to Ms Rogers who was still in the kitchen. You demanded to know which of your friends she had used the condoms and GoPro containing an SD card with. You threatened her, saying “tell me or the crowbar is going through your head”. You then struck Ms Rogers with the crowbar to her back and legs causing her to fall to the floor. You then stomped on her head approximately three times and placed a fist over her throat. These acts comprise the third and fourth acts of violence included in the rolled-up charge.
12Ms Rogers stood up and saw you holding a pair of scissors. You told Ms Rogers “if you want to fuck boys, you can look like a boy”. You then cut at her hair while you pinned her down on the couch.
13In an attempt to escape your attacks, Ms Rogers told you that the SD card was in the boot of your car, which was parked at the front of the house. You then grabbed Ms Rogers and dragged her outside to the car, before opening the boot and searching. Both you and Ms Rogers removed items from the boot during the search.
14Approximately one minute into the search you said to Ms Rogers “you’ll be a dead body when I dump you at Mount Disappointment”. That threat is the subject of Charge 2, make threat to kill.
15You then tried to grab and lift Ms Rogers to put her in the boot, however she was able to struggle free from your grip although she fell to the ground whilst doing so. You then bent down, picked her up and forced her into the boot of the car before closing the lid and driving off at speed. That is the subject of Charge 3, kidnapping. I note that CCTV footage was obtained from security cameras affixed to your home. The footage depicts you dragging Ms Rogers outside to the car, searching in the boot of the car, hitting Ms Rogers on the head with carpet from the boot before putting Ms Rogers into the boot of the car and driving off. The footage was tendered as Exhibit B.
16After driving a short distance you stopped the car, got out, opened the boot and dragged Ms Rogers by her hair to the passenger seat of the car. You then got back into the driver’s seat and drove off. All the while, you ordered Ms Rogers to keep looking for the card. By this stage, Ms Rogers realised that you were driving towards your friend’s house. As you slowed the vehicle, Ms Rogers opened the passenger door and tried to escape, however you stopped her by grabbing hold of the top she was wearing. Ms Rogers struggled with you and was eventually able to wrestle out of her top and free herself from your grip.
17Once out of the car, Ms Rogers ran. You reversed the car. The passenger side door was still open and it clipped Ms Rogers, causing her to fall. She immediately got up and yelled out to her friend. You then drove away.
18During the incident you stole Ms Rogers’ mobile telephone (Charge 4).
19Ms Rogers was able to take refuge at her friend’s house where an ambulance was called.
20At approximately 3.15am you telephoned Ms Rogers’ friend. During the call you admitted that you had bashed Ms Rogers and that you had nearly killed her. You said that you had run over Ms Rogers with the car, that you had slammed her head into the ground and that you had stomped on her head. You also admitted that you had cut Ms Rogers’ hair off, that you strangled her, that you had assaulted her with planks of wood and with an iron bar, and that you threw her into the boot of the car.
21When police later attended and spoke to Ms Rogers, they were wearing body-worn cameras. A number of photographs of Ms Rogers’ injuries were taken whilst she was in the back of the ambulance. The photographs were tendered as Exhibit C.
Injuries sustained by Ms Rogers
22At 5.15pm on 3 November 2020, Ms Rogers was examined by Forensic Medical Registrar, Dr Fred Jayawardene. During the examination, Ms Rogers told Dr Jayawardene what had occurred during the assault. In addition, Ms Rogers informed Dr Jayawardene that prior to the assault, both she and you had taken methylamphetamine.
23Upon physical examination, Dr Jayawardene observed injuries to Ms Rogers’ head and neck, consisting of abrasions, bruising and swelling, circular bruises at the front of her left shoulder, a bruise on her left upper back, lacerations and a bruise on her right hand and finger, bruising on her left arm, hand and finger, swelling of her right knee, and bruising and abrasions on her right shin, ankle and foot.
24Dr Jayawardene was of the opinion that the injuries were consistent with Ms Rogers’ account. He noted that neck compression during family violence assaults increases the chance of a victim’s death. A number of photographs taken during the medical examination were tendered as Exhibit E.
25Following the execution of various search warrants and the seizure of various items, you were arrested at your aunt’s home on 4 November 2020. You were taken to the Mill Park Police Station where you participated in a record of interview.
26During the interview, although you admitted an incident had occurred, you attempted to lay blame on Ms Rogers. In essence, you stated that Ms Rogers was the aggressor. You denied punching Ms Rogers or using any weapons against her. You denied hitting Ms Rogers with a piece of wood, stating “if I had have hit her with a piece of wood, I would have broke her leg or broke her arm, you know.”
27You also denied wrapping the towel around Ms Rogers’ head. You denied hitting her with the crowbar. You also denied stomping on Ms Rogers’ head, stating “this is all lies”. You denied cutting Ms Rogers’ hair, instead saying she had done that herself. You denied dragging Ms Rogers to the car and you denied threatening her “you’ll be a dead body when I dump you at Mount Disappointment”. You agreed that Ms Rogers had attempted to jump from the vehicle when it was travelling at approximately 45 to 50 kilometres per hour and that you grabbed her T-shirt in an attempt to stop her, and that then you saw her fall to the road. You denied striking her with the passenger door of the car.
28You now admit that your denials were false.
29At the conclusion of the record of interview, you were remanded in custody where you have remained ever since.
Charge 6 – persistent contravention of a Family Violence Intervention Order
30On 4 November 2020, police obtained an Interim Family Violence Intervention Order. The order prohibited you from contacting Ms Rogers in any way. You consented to the making of the order and were present in court when the order was made. That day you were also served with a copy of the order.
31A Final Family Violence Intervention Order was made on 11 December 2020, in the same terms as the interim order. The order provided that you were prohibited from contacting Ms Rogers by any means. The order was served on you on 8 January 2021. The Interim Family Violence Intervention Order remained in place until the final intervention order was served.
32In breach of the Family Violence Intervention Order, you contacted Ms Rogers by telephone on 11 separate occasions between 16 December 2020 and 6 January 2021.
Charge 5 – attempting to pervert the course of justice, related Summary Charge 25
33Between 2 December 2020 and 26 January 2021, you contacted Ms Rogers by telephone on a number of occasions. During the telephone calls (which were recorded), you asked Ms Rogers to make a statutory declaration and you also told your sister to tell Ms Rogers to say it (being the actions giving rise to Ms Rogers’ injuries) was a sex act gone wrong. You made calls of this nature on 2, 4, 16, 24 and 28 December 2020 and on 12 January 2021. The contact made on the last occasion is the subject of related Summary Charge 25.
34On 8 February 2021, Ms Rogers provided a statutory declaration to police in accordance with your instructions.
35You exerted pressure on Ms Rogers to make the statutory declaration. You told her what to write, and she complied. You told Ms Rogers that if you were released on bail you would be able to return her property (being two vehicles) to her. Although you have never been interviewed about this charge, you admit the facts that support this rolled-up charge of attempting to pervert the course of justice and the related summary charge.
Related summary charges
36I have already referred to the circumstances supporting Summary Charge 25.
37Insofar as the balance of the summary charges are concerned, at the time of committing the offences the subject of the charges on indictment, you were on bail for other matters (Summary Charge 7, commit indictable offence whilst on bail). In breach of the terms of your bail you failed to inform police of a change of address (Summary Charge 8).
38In breach of the Family Violence Final Intervention Order imposed on 11 December 2020, you contacted Ms Rogers on 12 January 2021 (as mentioned, that contact is the subject of Summary Charge 25) and on 26 January 2021 (Summary Charge 26).
Procedural history
39Helpfully, a table setting out the procedural history of the matter was included in Exhibit A.
40Referring to that table, on 2 November 2020 you committed the offences.
41On 4 November 2020, you were arrested. There was a filing hearing conducted, and you were remanded in custody.
42On 28 January 2021, there was a committal mention. The committal was listed for June 2021.
43On 26 February 2021, there was a special mention. The committal date was vacated as the informant was not available. The committal was listed for 12 April 2021.
44On 12 and 13 April 2021, there was a contested committal hearing. You were committed to stand trial.
45On 11 May 2021, there was a directions hearing. The matter was adjourned to 8 July 2021.
46On 8 July 2021, the directions hearing was held. The case was listed for case conference on 27 August 2021.
47On 27 August 2021, a case conference was listed before His Honour Judge Tinney.
48On 2 September 2021, a plea offer was made and accepted.
49On 3 September 2021, you were arraigned. Short form arraignment was completed, then that was listed for plea hearing on 1 December 2021.
50On 1 December 2021, the plea hearing was vacated due to delays involved in obtaining a psychological report. The plea was administratively adjourned till 10 March 2022.
51On 10 March 2022, the plea hearing commenced before me.
Date Event Outcome 2 November 2020
Offences Committed
4 November 2020 Accused arrested and Filing Hearing conducted Remanded in custody 28 January 2021 Committal mention Committal listed in June 2021 26 February 2021 Special mention Committal date vacated as informant not available and Committal listed for 12 April 2021 12 & 13 April 2021 Contested Committal Accused committed for trial 11 May 2021 Directions Hearing Adjourned to 8 July 2021 8 July 2021 Directions Hearing Listed for Case Conference on 27 August 2021 27 August 2021 Case Conference Listed before Judge Tinney 2 September 2021
Plea offer made by defence and accepted by prosecution
3 September 2021 Accused arraigned Short form arraignment completed.
Listed for plea hearing on 1 December 20211 December 2021 Plea hearing vacated due to delays involved in obtaining a psychological report Plea administratively adjourned to 10 March 2022 10 March 2022
Plea Hearing
Gravity of your offending
Intentionally causing injury, kidnapping and making threats to kill
52As your counsel has noted, these offences took place during one terrifying episode and are serious examples of the crimes charged.
53In addition, it must be observed that your offending occurred in the context of domestic violence against a defenceless woman. The incident took place both in your home, outside it, and in the car. You committed an act of humiliation during the incident when you cut Ms Rogers’ hair.
54The gravity of the kidnapping charge warrants special mention. Your crime was accompanied by a serious threat to kill, and followed a number of previous acts of violence as encompassed by the rolled-up charge of intentionally causing injury. The maximum applicable penalty for kidnapping, 25 years’ imprisonment, indicates the inherent gravity of such a crime.
Attempting to pervert the course of justice
55As was observed by Charles JA in The Queen v John Healy:[3]
[3]Unreported decision Supreme Court of Victoria, Court of Appeal, 4 August 1997, BC9703737
“ ‘the administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.’
Indeed, in R v Andrews (1972) 57 Cr.App.R. 254, Lord Widgery, C.J. said, at 258, that –
‘there are few more serious offences possible in the present day than those which tend to distort the course of public justice and prevent the courts from producing true and just results in the cases before them ...’
Plainly any sentence should reflect a substantial element of general deterrence.”[4]
[4]Ibid at pages 5–6
56In assessing the gravity of this offence I take into account:
· Your conduct constituted a continuing offence and was persistently pursued until Ms Rogers acquiesced;
· There was an element of premeditation;[5]
[5] See for example DPP v Josefski (2005) 13 VR 85 at paragraph 74
· Your conduct actually influenced Ms Rogers to falsify evidence;
· You were the instigator of the attempt to pervert the course of justice; and
· You were motivated by purely selfish reasons – to escape the consequences of your brutal attack on Ms Rogers.
57In cases such as these, ordinarily principles of denunciation and deterrence, both specific and general, are important sentencing considerations.
Effect of your offending on the victim
58Ms Rogers’ Victim Impact Statement, dated 14 October 2021 but declared on 17 November 2021, was tendered as Exhibit F. In this detailed document, Ms Rogers states:
“The crime has scarred me for life. I have forgiven... but I will never forget.
The emotional impact this crime has had on me has changed me for who I am unfortunately. For many months after the crime, I suffered daily vivid flashbacks multiple times a day making me physically distraught and distressed, I would find myself disconnecting from reality and going into dissociative states of minds regularly as a coping mechanism. And at night, there was no rest from the torment with the realistic nightmares that would disrupt me though out the night. Waking up profusely sweating, my heart would be racing from fear, and waking up sometimes physically crying and distressed. I was living one hell of a nightmare that I couldn't escape from mentally which made my mental health severely impacted to a concerning level. I was exhausted mentally and emotionally each morning when a woke, from dealing with numerous interrupted sleeping patterns every night, most mornings I was finding myself waking up extremely anxious, really depressed and so sad to the point most mornings I would be an emotional wreck crying because I knew what sort of day I would be in for and it was mentally, physically, and emotionally taking its toll on me in every way imaginable. I was running myself ragged into the ground and there wasn't a thing I could do about it. I was too far and in too deep of a dark hell hole of gloom, fear, darkness and all-time low sadness. I was lost. I didn't know who I was anymore, and my will to live and survive was gone at that stage. So much so, I was seriously contemplating suicide on numerous occasions that I had it all planned out and everything ready to go. I was also grieving for a relationship, as I believed that Justin and I had been happy and in-love. I couldn't get my head around what had happened and still to this day I cannot understand why he did this to me. I was also longing for the original Justin the one I knew and fell deeply in-love with. The Justin that I originally first met. My best friend, my mate, my partner in crime, my love. I spent endless nights trying to heal my broken heart crying myself to sleep most nights as I just missed him. For the crime came suddenly without warning signs and that too was the hardest part to get my head around. And knowing I will never have the closure or answers to my questions from Justin is one of the hardest things I have to internally accept with my heart and be ok with.
…
I was also dealing with my identity of being a female stripped from me when Justin decided to shave all of my hair off during the crime to a men's haircut level 1. Call me vain, or call me shallow, but being stripped of your femininity and being made to look like a man is absolutely humiliating, and beyond embarrassing, especially for someone like me who already suffers from very poor non-existent self-esteem, and self-confidence, and already had body image issues that are buried and scarred in deep from past childhood trauma I have been through in life. I didn't know how to cope with this new form of belittling humiliation. All I could do was purchase a cheap wig online to try and fill the void of not having any hair left. And when the wig came, I had to overcome a huge sense of embarrassment as my wig looked like a wig not like it was my natural hair, but I couldn't afford a wig made of higher quality with real human hair. So I made do with what I had. When recovering from the physical injuries I suffered from the crime, I withdrew myself from my family, friends, and loved ones as I felt like I just wanted to hide from the world, and from all the gossip that was beginning to spread like wildfire about me and what had happened. Again, I just wanted to die. I wanted to end my existence and just die! I was so fearful of the outside world that I began to form a moderate case of Agoraphobia. Agoraphobia is extreme or irrational fear of entering open or crowded places, or leaving one's home or the safety of their home. Which then manifested into complex anxiety and panic attack disorders to the extent every time would try to leave the safety of my home, I would get myself into such a worked-up state physically to the point I was almost hyperventilating and shivering like a leaf from anticipation and fear, that would end up retreating back inside the front door and falling to the ground in a heap and bawling my eyes out and telling myself out loud "l can't do this, I can't do this!" I was very insecure and fearful of my surroundings and what was possibly lurking outside for me. I was convinced there was going to be some sort of retaliation from Justin's family or friends. The Narcissistic hold and effects of our relationship was still embedded strongly in me as I felt as though I was in the wrong, and that I had done something really bad to Justin, and that took a long time for me to come to terms with that I was in fact the victim, and that had done nothing wrong at all. I was finding myself jumping at every little noise heard, and I was making myself mentally sick when I first got out of hospital by watching the security cameras 24/7. I was expecting something really bad to happen to me for the first month or so being released from intensive care.
The crime has permanently changed me and the way now I now perceive males. I don't think I could allow myself to ever lower my security barriers around men at all now. The damage is too significant. To bring myself to have trust in another male and to be in a relationship again exposing myself and being in an vulnerable position in-front of a male I can reassure you will never ever happen again mark my words. My interest in men has vanquished me once and for all.
…
To this date, I actively engage with a psychologist who specializes in PTSD.
PHYSICAL IMPACT:
The physical impact of the crime was fair to say, "Cosmetic". My physical injuries such as my internal and external bruising and lacerations healed completely within 3 weeks of the crime. My nose took months to heal from its "Sensitivity" and for it to return back to a normal state where I can actually touch it again. The "Sensitivity" was almost unbearable it was very intense! And lastly, for roughly 2 or so months after the assault, I was removing bits of Asphalt/Gravel from the complete right side of my face daily from when Justin hit me with the car and me hitting the Asphalt with such impact that night. My physical injuries were nothing compared to the state my mental health and wellbeing was in.”
59HER HONOUR: I will not read the rest of it now, but included in my reasons for sentence are the extracts of the victim impact statement concerning financial impact and social impact. I will say take and read unless either of the parties wish me to read the rest of the passage that will appear in the revised reasons for sentence.
60MS GRAY: No, Your Honour.
61HER HONOUR: Thank you.
62MR BACKWELL: No, Your Honour.
63HER HONOUR: Thank you very much.
“FINANCIAL IMPACT:
The financial impact and hardship I have encountered from the crime associated with Justin have been significant property damages to the interior and exterior of my home recklessly caused by Justin himself have been substantial, costing me considerably large amounts of money to try and fix all of my property's damages.
… [deleted passage not relied upon]
And lastly, my mental health care psychologist, Gwyn Gresham,[6] has been working extensively with me on a regular basis to get my mental health stabilized to a rational and steady state. and I have nearly used up all of my health care plan 10 free sessions, and I will be paying her private consultation fee of $270.00 per hour for each additional session I have with her. I see this as a significant financial expense that I will incur as a result from the crime.
[6] A pseudonym
SOCIAL IMPACT:
This crime has had a significant and very negative effect and impact on my two young daughters' Eliz,[7] aged 8 years old, and Serina,[8] aged 5 years old. This is because my daughters were removed from my care by Child Protection because I was involved in an intimate relationship with Justin who is a "Serious Violent Offender" / SVO, and they removed my children from what they thought was immediate and direct danger from Justin. … [deleted passage not relied upon].
[7] A pseudonym
[8] A pseudonym
As I said from the very start of my Victim Impact Statement, I will and have forgiven Justin, but I sure as hell will never ever forget nor will I ever understand the reasons as to why he committed his crimes like he did....lt's just something I'm going to be working on in therapy for many years to come...”
Plea in mitigation
64Your plea in mitigation commenced before me on 10 March 2022. Mr A Pyne then appeared on your behalf. Mr Pyne tendered an outline of submissions dated 8 March 2022 on your behalf, Exhibit 1.
65Your counsel conceded the gravity of your offending, noting that Charges 1 and 2 are serious examples of the crimes of causing injury intentionally and making a threat to kill. He also acknowledged the presence of aggravating features including the extent of violence, the use of weapons and the degradation of Ms Rogers. He also conceded that Charge 3, the charge of kidnapping, is serious because you committed it in the context of a violent episode. Mr Pyne conceded that the offending covered by these three charges must have been terrifying for Ms Rogers.
66Mr Pyne conceded that the only appropriate response to your offending is the imposition of terms of imprisonment, and that although there are areas of overlap, a degree of cumulation is required. I now turn to the matters raised in mitigation of penalty.
Guilty plea
67You have pleaded guilty to the charges and are entitled to have that fact taken into account in your favour. A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your guilty plea I take into account the following factors:
· the timing of your plea – your plea was offered after a contested committal hearing that took place on 12 and 13 April 2021. During the committal, Ms Rogers was cross-examined extensively;
· even though your plea did not come at the earliest opportunity, you are nevertheless entitled to a statutory sentencing discount;
· it was not suggested that your plea evidences any degree of remorse. This does not aggravate penalty, it simply means that remorse cannot be taken into account in your favour in the assessment of the weight to be attached to your guilty plea;
· you have avoided the cost of a trial and, more significantly, you have spared Ms Rogers and the other witnesses the inconvenience, embarrassment and ordeal of giving evidence at trial; and
· there is social utility inherent in your pleas of guilty. This factor must be given additional weight during the current period of the COVID-19 crisis, which crisis has had considerable negative impact upon the justice system.[9]
[9]Worboyes v The Queen [2021] VSC 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
68In addition to the extra weight that your guilty plea must attract because of COVID‑19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i) You may face a higher risk of contracting the disease whilst in custody;[10]
[10]The Queen v Madex [2020] VSC 145 at paragraphs [51]-[52]
(ii) There is an increased likelihood of periods of quarantine or isolation; and
(iii) The pandemic may cause additional stress and concern for prisoners and their families, as it is for every member of the community.[11]
[11]Brown v The Queen [2020] VSCA 60 at paragraph [48]
69You have spent well over a year in custody, 618 days, and have experienced some of the disadvantages attributable to the pandemic.
Personal circumstances
70Now I turn to your personal circumstances. It is difficult to gain a true picture of your personal circumstances. Although the matter was previously adjourned to enable psychological reports to be obtained, none were tendered by Mr Pyne on 10 March 2022. The transcript of that day records the following exchange:
“MR PYNE: …The information that I have is that he was born in respiratory distress following a pethidine injection.
It took up to five minutes to be revived. And that at least to his mind - and Your Honour will note his comments to this effect in his interview - that has left him with what he describes as an intellectual disability.
HER HONOUR: Has that been confirmed by professional diagnosis?
MR PYNE: He has been assessed. Unfortunately, the reports I've received are not of assistance to the court and I'm not relying on them.
HER HONOUR: Well, I don't have any before me, and quite often if - well, you'd expect that if an assertion is made about an intellectual disability or any other form of disability, there would be professional expert evidence to support such an assertion.
MR PYNE: Well, I don't have a report that I can tender that would be of assistance to the court in that regard, I just don't have it.
HER HONOUR: Do you want to obtain one? Because I will grant an adjournment to allow you to obtain it, as clearly it could be an important mitigating factor. You've dedicated more than a page [in your written submissions] to disadvantaged background. If you say there are any Verdins factors that are relevant, I think you should get evidence.
… I can't just take hearsay or lay evidence on the medical - or other matters in respect of which expert evidence is expected and required.
MR PYNE: I understand that. I cannot - I'm not advancing a Verdins submissions, I don't have the evidence for that. …”[12]
[12]Transcript of plea (T), pages 45 – 46.
71The transcript then records that an adjournment was granted to enable your legal representatives to obtain further psychological reports.
72The matter returned before me on 16 June 2022. On that date Mr Backwell appeared on your behalf in place of Mr Pyne. Mr Backwell stated that “there [was] no new report [to be] put before the court,”[13] although he tendered the sentencing remarks of his Honour Judge Taft of 7 April 2017 in case CR-16-02125 when you were dealt with on a charge of participation in a prison riot.[14] In those proceedings, a neuropsychological report prepared by Dr Linda Borg dated 4 December 2015 was tendered. The contents of that report were accepted by His Honour. Mr Backwell tendered that report in these proceedings, Exhibit 3. As is evident, that report was not prepared for the current proceedings and it says nothing about any nexus between any intellectual disability and the offences before me. Your intellectual disability was described by Dr Borg as “mild”.[15] Despite being given a further opportunity to obtain evidence that might shed light on any such nexus, Mr Backwell declined, declaring that, like Mr Pyne, no reliance would be placed on any Verdins factors.[16] Instead, Mr Backwell called in aid the principles enunciated in Muldrock v The Queen.[17] He relied upon your personal circumstances as accepted by his Honour Judge Taft, and which I gratefully adopt:
[13]T 53
[14]Exhibit 2
[15]Exhibit 3, page 1
[16]R v Verdins (2007) 16 VR 269
[17](2011) 244 CLR 120
“[25] I turn to your personal circumstances which are addressed in a psychological report authored by Carolyne Thompson ...”[18]
[18]This report was not tendered in the proceedings before me
73And I interpose, also, that report was not tendered before me.
“… written in May 2000 when you were a 14 year old student, and in a more recent report authored by Dr Linda Borg, clinical neuropsychologist, dated 4 December 2015.
[26] You were born and raised in Epping. Your childhood was difficult and you were exposed to family violence. Your father was eventually gaoled for drug-related offending. Your parents ultimately separated and while you have some contact with them, you are not close.
[27] Your education was limited. You attended South Morang Primary School and as a result of your behaviour and intellectual limitations you were asked to leave Mill Park Secondary College in Year 9. You attended Reservoir Special School for one month but did not continue.
[28] Subsequently, you commenced work with your father in his demolition business and learned how to operate a range of excavating equipment. When your father was gaoled, you started work with a local butcher to financially assist your mother but lost a finger in a meat grinder. Once you recovered from this injury, you returned to work as a labourer and have worked at various times as a brick layer, concreter, truck driver, and excavator. Other than when in prison, you have worked consistently throughout your life.
…
[30] You have a history of drug use. You told Dr Borg that you smoked cannabis from the age of 15 or 16 and that your habit quickly escalated until you were remanded in custody in March 2015. Of greatest concern is your use of ice since the age of 19. By around the age of 23, your usage escalated to a daily pattern that at its heaviest involved the use of $1,000 worth of methamphetamine each day. You instruct that you have ceased using illicit drugs since March 2015 and there is no evidence to the contrary.
[31] You have a relevant criminal record, although you have only been sentenced to one actual term of imprisonment. At the time of the riot, you were on remand for a matter that resolved on 2 May 2016. On that day you were sentenced to seven months’ imprisonment, which was reckoned as time served, and a Community Correction Order requiring you to participate in a Justice Plan. That order is still to be completed but this Court was advised that your participation has been sporadic.
[32] Since 2012, you have been placed on a number of Community Correction Orders for a variety of offences including dishonesty matters, recklessly causing injury, burglaries, failures to answer bail, contravening intervention orders and driving offences. You have found it most difficult to complete any order and have repeatedly been breached for further offending or non-compliance.”[19]
[19] DPP v Hall [2017] VCC 393
74I note that in his written submissions Mr Pyne referred to your multiple attempts to rid yourself of your drug addiction and that there have been periods of abstinence. On this occasion, however, it is clear that you had relapsed into abusing illicit drugs, this time committing the offences whilst both you and Ms Rogers were under the influence of methylamphetamine. That fact has not been offered as any excuse for your offending. Nor is it put as a mitigating factor.
75Because of the lack of evidence, it is difficult to determine whether your mild intellectual disability had any role to play in these crimes, whether your violence was fuelled solely by ice, or indeed whether both intellectual disability and your use of ice were contributing factors.
76I now turn to your prior criminal history, the full details of which are set out in your criminal record dated 3 November 2021. Without repeating each court appearance, I note, as did his Honour Judge Taft, that you have been given many opportunities in the past to rehabilitate yourself. Unfortunately you have not made the best of those opportunities.
77Your prior criminal record notwithstanding, your disadvantaged background is a matter that must be taken into account when sentencing you today.[20]
[20]Bugmy v The Queen (2013) 249 CLR 571
78Two letters were tendered on your behalf, one from your mother, Annette Hall,[21] and one from your sister-in-law, Karlie Marshall.[22]
[21]Exhibit 4
[22]Exhibit 5
79The letter from your mother confirms the difficult environment in which you grew up. She paints a very gloomy picture of the hardships that you faced, including domestic violence, sexual abuse, addiction to drugs, difficulty at school, trouble with the law, and your diagnosis of an intellectual disability.
80The letter from your sister-in-law states that you have been a great help during very difficult and traumatic times that she has experienced.
Sentences to be imposed
81Little was said by way of your prospects of rehabilitation. Given your prior criminal history and your inability to beat your drug problem, I assess your prospects of rehabilitation as guarded, if not poor.
82I take into account all of the matters personal to you to which I have referred. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this, although I moderate this factor in light of your mild intellectual disability and your conceded reduced moral culpability. I am required to take into account the question of the protection of members of the community from you, a factor that is important in your case. I must also bear in mind the likelihood of your re-offending.
83I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I also take into account the impacts of COVID-19, as previously mentioned.
84On Charge 1, causing injury intentionally (rolled-up charge), you are convicted and sentenced to three years’ imprisonment.
85On Charge 2, making a threat to kill, you are convicted and sentenced to one year’s imprisonment.
86On Charge 3, kidnapping, a Category 2 offence pursuant to s3(1) of the Sentencing Act, you are convicted and sentenced to four years’ imprisonment.
87On Charge 4, theft, you are convicted and sentenced to one month’s imprisonment.
88On Charge 5, attempting to pervert the course of justice, you are convicted and sentenced to two and one-half years’ imprisonment.
89On Charge 6, persistent contravention of a Family Violence Intervention Order, you are convicted and sentenced to twelve months’ imprisonment.
90Turning to the related summary offences:
91On Charge 7, committing an indictable offence whilst on bail, you are convicted and sentenced to two months’ imprisonment.
92On Charge 8, contravening a conduct condition whilst on bail, you are convicted and sentenced to one month’s imprisonment.
93On Charge 25, contravening a family violence final intervention order, you are convicted and sentenced to six months’ imprisonment.
94On Charge 26, contravening a family violence final intervention order, you are convicted and sentenced to six months’ imprisonment.
Cumulation
95On the question of cumulation, I note that there is a degree of overlap in some of the charges, and that the conduct the subject of Charges 1, 2, 3 and 4 occurred during a continuing episode. Nevertheless they are discrete offences. You committed these offences whilst on bail. You have also been sentenced on summary charge of committing the kidnapping charge whilst on bail. I need to ensure that there is no element of double punishment. There is also a degree of overlap between the charge of attempting to pervert the course of justice, the charge of persistent contravention of a Family Violence Intervention Order, and the summary charges of contravening a Family Violence Intervention Order.
96I consider it appropriate to order some period of cumulation in respect of charges on the indictment. I therefore direct that 12 months of the sentence imposed in respect of Charge 1, four months of the sentence imposed in respect of Charge 5, and two months of each of the sentences imposed in respect of Charges 2 and 6 be served cumulatively upon the sentence imposed in respect of Charge 3, the base sentence, and with each other. That results in a total effective sentence of five years and eight months’ imprisonment.
97The sentences on the summary charges will be served concurrently with the sentences.
Minimum non-parole period
98Turning to the minimum non-parole period. Among the matters to be taken into account when fixing the non-parole period are:
(a) That a non-parole period has a punitive element;
(b) That where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) An offender’s prospects for rehabilitation are almost always a significant consideration.
99In fixing the non-parole period, I take into account all of the matters to which I have referred. I direct that you serve a minimum of three years and nine months’ imprisonment before becoming eligible for parole.
100We just turn to the total effective sentence again. Hopefully counsel have now had the opportunity to double-check the base sentence, which is Charge 3. Charge 3 is four years' imprisonment. 12 months of the sentence imposed in respect of Charge 1, and four months of the sentence imposed in respect of Charge 5, and two months of each of the sentences imposed in respect of Charges 2 and 6 are to be served cumulatively upon the sentence imposed in respect of Charge 3, the base sentence, and with each other, resulting in a total effective sentence of five years and 8 months’ imprisonment.
101The sentences on the summary charges to be served concurrently.
102MS GRAY: Your Honour, can I clarify that Charge 4 is also to be served concurrently to get to that 5 years 8 months?
103HER HONOUR: Yes, Charge 4 is concurrent.
104MS GRAY: Thank you.
Presentence declaration
105Under s18(4) of the Sentencing Act 1991, I declare that the period of 618 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Statement and direction under s6AAA Sentencing Act
106Pursuant to s6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea I would have imposed a total effective sentence of eight and one half years’ imprisonment.
107I would have directed that you serve a minimum of five (5) years and eight (8) months’ imprisonment before becoming eligible for parole.
108I direct pursuant to s6AAA that the sentences that would have been imposed but for the plea of guilty be noted in the court’s records.
Ancillary order
109Turning to the ancillary order. I make a disposal order in accordance with the draft minute submitted for my signature, noting that the making of the order is unopposed.
110Are there any other matters?
111MS GRAY: No, Your Honour.
112MR BACKWELL: No.
113HER HONOUR: Mr Backwell, do you want time on the link to discuss anything with your client?
114MR BACK WELL: No, Your Honour. I'll organise a private conference with Mr Hall next week.
115HER HONOUR: Very well, thank you Mr Backwell. Very well. Yes. I'm sorry, your client has his hand raised, Mr Backwell.
116OFFENDER: Can I speak to my barrister please, Your Honour?
117HER HONOUR: He just said he'll make an appointment to speak to you next week, but I will allow time now if Mr Backwell you want to have a brief chat to your client. We can arrange a private conversation for you.
118MR BACKWELL: Yes thank you Your Honour.
119HER HONOUR: All right, Mr Hall, your barrister is going to have an opportunity to speak to you now. It's not overly lengthy time but he'll at least be able to go through what has happened today. Thank you very much.
120OFFENDER: Thank you.
121HER HONOUR: My staff will now arrange that.
122MR BACKWELL: If Your Honour pleases.
- - -
ANNEXURE A
Summary of Prosecution Opening upon Plea (Anonymised) [23]
[23]This version of the Summary of Prosecution Opening annexed to the Sentencing Remarks of her Honour Judge Morrish (15 July 2022) has been anonymised for consistency with the sentencing remarks. The names of friends, addresses, phone numbers and licence plates have been omitted or pseudonyms used. The names of family members related to Mr Hall have not been anonymised.
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
Court Reference: CR-21-00735 Indictment No: L12601085
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
THE DIRECTOR OF PUBLIC PROSECUTIONS
v
JUSTIN HEATH HALL
SUMMARY OF PROSECUTION OPENING UPON PLEA
Date of Document:
Filed on behalf of: Prepared by:
ABBEY HOGAN
Solicitor for Public Prosecutions 565 Lonsdale Street
Melbourne Vic 3000
17 February 2022
Director of Public Prosecutions
Solicitors code: 7539
Reference: 2005382
Telephone: (03) 9603 7560
Introduction
1. The accused in this matter is Justin Hall (the accused). The accused was born on 9 March 1986 and was 34 years old at the time of the offending.
2. The accused has pleaded guilty to the following offences:
| No | Charge | Details | Maximum Penalty |
| 1 | Intentionally Causing Injury | Rolled up charge comprising of the following: 1. Striking the victim on the left arm and left leg; 2. Wrapping a towel around her head; 3. Hitting the victim’s back and lets with a crowbar; 4. Stomping on the victim’s head about three times; and 5. Placing a fist over the victim’s throat. | 10 years imprisonment |
| 2 | Making a Threat to Kill | Telling the victim, “You’ll be a dead body when I dump you at Mount Disappointment” | 10 years imprisonment |
| 3 | Kidnapping | Putting the victim in the boot of his car and driving a short distance before then taking her out of the boot and walking the victim to the front seat of the car. | 25 years imprisonment |
| 4 | Theft | Of the victim’s mobile phone (admitted in ROI). | 10 years imprisonment |
| 5 | Attempting to Pervert the Course of Justice | Contacting the victim between 2 December 2020 and 26 January 2021 and requesting her to make a statutory declaration to replace her police statement and to provide such statutory declaration to police. | 25 years imprisonment |
| 6 | Persistent Contravention of a Family Violence Intervention Order | Contacting the victim by telephone between 16 December 2020 and 6 January 2021 | 5 years imprisonment |
| Summary Offences | |||
| 7 | Committing an Indictable Offence Whilst on Bail | At the time of the offending, the accused was on bail for other matters. | 3 months imprisonment or 30 penalty units |
| 8 | Contravening a Conduct Condition Whilst on Bail | At the time of the offending, the accused did not inform police of a change of address. | 3 months imprisonment or 30 penalty units |
| 25 | Contravening a Family Violence Final Intervention Order | The accused contacting the victim on 12 January 2021, after having been served with a Final Family Violence Intervention Order. | 2 years imprisonment or 240 penalty units |
| 26 | Contravening a Family Violence Final Intervention Order | The accused contacting the victim on 26 January 2021, after having been served with a Final Family Violence Intervention Order. | 2 years imprisonment or 240 penalty units |
3. The victim in this matter is Ms Joyce Rogers, who was 30 years old at the time of the offending. Ms Rogers met the accused at her friend’s home and shortly thereafter, a relationship commenced. The accused moved into Ms Rogers’ residence at [address omitted] after a short time. At the time of the offending, she had been in a relationship with him for almost one year.1 Both Ms Rogers and the accused were regular users of methamphetamine at this time.2
4. All of the charges stem from offending that occurred to Ms Rogers on 2 November 2020. Both the accused and Ms Rogers had consumed methylamphetamine prior to the offending.3
Circumstances of offending
5. At about 3pm on 1 November 2020, Ms Rogers and the accused were at their home, entertaining two of their friends, being Brenda WILLIAMS and Aaron GREEN. During the afternoon, Mr Green was helping the accused build the back deck. Whilst present at Ms Rogers’ home, Brenda and Aaron noticed that there was a lot of tension between Ms Rogers and the accused.4
6. Brenda and Aaron left the house somewhere between 9.30pm and 12.00am the following morning. After they left, Ms Rogers and the accused were talking. The accused located a GoPro
1 Statement of Joyce Rogers, pg 543 Depositions
2 Committal evidence of Joyce Rogers, pg 1139-1140 Depositions
3 Committal evidence of Joyce Rogers, pg 1145 Depositions
4 Statement of Brenda WILLIAMS, pg 97 Depositions
camera that was on charge in the kitchen and checked for the SD card, but there was no SD card in the device.
7. The accused asked Ms Rogers where the SD card was, before starting to scream at her. The accused suspected Ms Rogers of making pornographic movies with his friends and was becoming very agitated.
8. The accused found a plank of wood inside the house (which was undergoing renovations at the time) and swung the wood at Ms Rogers, in a baseball bat type of swing. The accused struck Ms Rogers on her left leg and left arm with some force (Charge 1: Intentionally Causing Injury). Ms Rogers felt immediate pain and the accused told Ms Rogers to give him the SD card and to find it. The accused said to Ms Rogers, “I’ll give you 20 seconds to find it.”5
9. The accused put the plank of wood down and continued assaulting Ms Rogers with his hands, slapping her to her face and hand. Ms Rogers pretended to search for the SD card, knowing that there had never been an SD card used for the GoPro.
10. While Ms Rogers was searching for the SD card, the accused became angrier. The accused grabbed a roll of black duct tape and used it to bind Ms Rogers’ mouth, face and hands, with one of Ms Rogers’ hands taped above her face and the other below her face.6 The duct tape was put over the bridge of her nose, causing her pain. He grabbed a towel and wrapped it around Ms Rogers’ head, cutting her air supply (Part of Charge 1). Upon releasing his grip, Ms Rogers fell to the floor and whilst on the floor, the accused put pressure on her spine with his foot. Ms Rogers quickly got up off the floor and continued to search for the SD card.
11. Upon opening up a top corner cupboard in the kitchen, a box of condoms became visible. The accused believed the box of condoms was new and accused Ms Rogers of using them with someone else.
12. After seeing the box of condoms, the accused walked to the back door and picked up a crowbar, before walking back to Ms Rogers who was still in the kitchen. The accused asked Ms Rogers to tell him which one of his mates did she use the condoms and SD card with, threatening her by saying, “tell me or the crowbar is going through your head.”7
13. Using the crowbar, the accused hit Ms Rogers to her back and legs, causing her to fall to the floor. He then stomped on her head about three times and placed a fist over her throat (Part of Charge 1).
14. Ms Rogers got up of the floor to see the accused with scissors in his hands. The accused said to Ms Rogers, “if you want to fuck boys, you can look like a boy,” before cutting at her hair when he pinned her down on the couch.
15. In an attempt to escape, Ms Rogers told the accused that the SD card was in the boot of their car, which at that time was parked at the front of the house.
16. The accused grabbed Ms Rogers and dragged her outside to the car, before opening the boot and looking inside the boot. Both Ms Rogers and the accused removed items from the boot to assist with the search.
5 Statement of Joyce Rogers, Depositions pg 544
6 Statement of Joyce Rogers, Depositions pg 555
7 Statement of Joyce Rogers, Depositions pg 546
17. After about one minute of searching, the accused said to Ms Rogers, “You’ll be a dead body when I dump you at Mount Disappointment” (Charge 2: Make Threat to Kill). The accused then tried to grab and lift Ms Rogers to put her in the boot, but Ms Rogers was able to struggle out of his hold, before falling to the ground. The accused then bent down, picked her up and forced her into the boot, before closing the lid and driving off at speed (Charge 3: Kidnapping).
18. CCTV was obtained from security cameras affixed to their home. The footage depicts the accused dragging Ms Rogers outside to the car, searching for the SD card, hitting her on the head with carpet from the boot and putting Ms Rogers into the boot of the car before driving off. This footage will be played at the Plea hearing.
19. After driving a short distance, being a few hundred metres, the accused stopped the car, got out and opened the boot. He then dragged Ms Rogers by her hair to the passenger seat of the car, before returning to the driver’s seat and driving off.
20. The accused told Ms Rogers to continue looking for the SD card. By this time, Ms Rogers realised that the accused was driving towards their friend’s house. As he was driving slowly, Ms Rogers opened the passenger door and tried to get out of the car but was stopped by the accused who had hold of her top. Ms Rogers started striking out at the accused, screaming that she hated him and was eventually able to wrestle out of her top and his grip.
21. Once Ms Rogers was out of the car, she ran away from the car. The accused reversed the car, with the passenger side door still open. The open passenger side door clipped Ms Rogers on her back, causing her to fall. After falling, Ms Rogers immediately got up and was yelling out to her friend, who she knows as Johnny. At this time, the accused drove away.
22. Ms Rogers was able to reach her friend’s house. Inside the home was Ms Rogers’ friend, Johnny (real name Eric BAILEY), his partner Amy FOSTER, his daughter Heather MARTIN and his grandson Wayne CARTER. Mr Bailey heard yelling by both parties, before he heard Ms Rogers screaming for her life.8 He then heard banging on the door, and he let Ms Rogers into his house. He observed that Ms Rogers looked a mess, with her face being swollen, her hair had been cut, there was a big lump on her forehead, had cuts on her feet, she couldn’t breathe through her nose and she had no shoes or top on.9 Ms Rogers yelled at Mr Bailey to shut the door. At this time, Mr Bailey could hear the sound of the accused’s car, but could not see it. Mr Bailey then got into his car in an attempt to locate the accused but couldn’t find him.
23. After approximately 20 minutes, Mr Bailey called an ambulance, as initially Ms Rogers told Mr Bailey that she did not want to call police.10 Mr Bailey was concerned and wanted to call an ambulance as he noticed Ms Rogers’ head swelling up more and more as she was sitting in his home.11
24. Given the noise, Ms Foster got up and saw Ms Rogers inside her home. Ms Foster noticed that Ms Rogers had no top on, her face was grazed and when she put her hand on her back, she felt little rocks all over her. Ms Rogers was crying, shaking and was fearful that the accused was going to return.12
8 Statement of Eric BAILEY, pg 571 Depositions
9 Statement of Eric BAILEY, pg 571 Depositions
10 Statement of Eric BAILEY, pg 571 Depositions and Committal evidence, pg 1190
11 Eric BAILEY Committal evidence, pg 1196 Depositions
12 Statement of Amy FOSTER, pg 563 Depositions
25. Ms Rogers told Ms Foster that the accused had run her over with the car, that she was in the boot and he put her in the passenger door, that she jumped out of the passenger seat while the car was moving, that the accused grabbed her on her top to try and stop her from getting out, her top ripped off, she got out of the car, that the passenger door hit her, she fell to the ground and the accused ran her over with the car.13
26. Ms Rogers also told Ms Foster that when they were at home, the accused ‘just turned’ and that he accused her of sleeping around, started beating and bashing her and dragged her into the boot. She told Ms Foster that the accused hit her with a plank of wood, a baseball bat and a tyre lever multiple times and that he had cut her hair off to make her look like a bloke.14
27. Ms Foster offered to either call an ambulance or take Ms Rogers to hospital, but Ms Rogers refused.
28. At approximately 3.15am, Ms Brenda Williams received a telephone call from Ms Rogers’ mobile number. Upon answering the call, she heard the accused on the phone. Ms Williams put the call on loudspeaker so that Mr Green could also hear the call.15 The accused told Ms Williams that he had bashed Ms Rogers and nearly killed her, telling her that he had run her over with the car, he had slammed her head into the ground and stomped on her head. He also told Ms Williams that he cut Ms Rogers’ hair off, he strangled her, assaulted her with planks of wood, an iron bar and he threw her the boot of the car.16
29. The accused told Ms Williams that Ms Rogers was on Bridge Inn Road and told her that he wanted her to know so that she could check up on Ms Rogers, and said that she, being Ms Williams, wouldn’t be able to recognise Ms Rogers as he bashed her up pretty bad.17 Mr Green thought that the accused sounded panicked.18
30. After trying to find out where the accused was so that she could contact police, Ms Williams hung up on the accused and she and her partner Aaron headed to Ms Rogers’ house. As they were on their way, Ms Williams received a Facebook message asking her to call [phone number omitted] as Joyce was hurt. Ms Williams called the number and a female answered the phone (being Ms Foster) and provided the address to attend.
31. Ms Williams and Mr Green attended at Ms Foster’s house not long after the call. At the address, Ms Williams saw Ms Rogers on the couch and noticed that her face was 3 times the size it normally is, that her hair had been cut off and there was a lot of bruising mainly to the right side of her face. Ms Williams noticed that Ms Rogers’ eyes were swollen, her nose was swollen and bloodied and she had grazes to her feet and ankles.19
32. Ms Rogers asked her friend to go to her house to lock up the house, as her front door had been left open. Mr Green drove to Ms Rogers’ address and upon arriving at the address, saw that the front door was wide open and that there was stuff everywhere. He noticed that this was
13 Statement of Amy FOSTER, pg 564 & 565 Depositions
14 Statement of Amy FOSTER, pg 564 & 565 Depositions
15 Statement of Aaron GREEN, pg 108 Depositions
16 Statement of Brenda WILLIAMS, pg 97 Depositions
17 Statement of Brenda WILLIAMS, pg 98 Depositions
18 Aaron GREEN, Committal evidence, pg 1211 Depositions
19 Statement of Brenda WILLIAMS, pg 98 Depositions
different from when he previously attended the home only hours before.20 He noticed a big red tyre iron on the bed. After entering the home, Mr Green locked the front door, grabbed the hard drive to the security cameras and walked out the rear of the property via the sliding door, leaving that door slightly ajar so Ms Rogers could be back in. Mr Green then returned to Ms Foster’s address.21
33. Upon arriving back at Ms Foster’s address, Mr Green observed Ms Rogers’ injuries.22
34. Ms Williams told Ms Rogers she needed to go to hospital, but Ms Rogers refused. At 4.46am Mr Green called an ambulance and passed the phone to Ms Williams, who spoke to the telephone operator. Ms Williams was still on the phone at the time police and ambulance arrived at the address.
35. Members of Victoria Police who attended at the address activated their body worn cameras at the time of entry to the property and during conversations with Ms Rogers. During the conversations, Ms Rogers told police what had occurred.
36. Ms Williams told police about her conversation with the accused.
37. Police took photographs of Ms Rogers’ injuries whilst she was in the back of the ambulance. Ms Rogers was transported to the Northern Hospital where she was treated for her injuries.
38. After calling Ms Williams on Ms Rogers’ phone, the accused called his sister, Kylie HALL (Kylie). The accused told Kylie that he needed help and Kylie drove towards the Epping area, before receiving a call from the accused and then picking him up from a specified address. During the call, Kylie asked him where the car was and the accused told her it was in a side street. Before the accused got into the car, Kylie noticed the accused dry retching.23 Kylie also noticed that the accused was distraught and appeared unwell, in that he was withdrawing from drugs.24 She noticed that he had scratches on his face, chest and had a black eye. She subsequently took photographs of those injuries.25
39. Kylie dropped the accused off at a friend’s house in Reservoir, as he had started vomiting and coming down from ice. Kylie did not want her children to see the accused in that state.26
40. Later that night, Kylie contacted the accused’s auntie, Sharyn Hind, and asked her if the accused could stay with her for a short while. At some stage, the accused had a conversation with Kylie and told her that he woke up to Ms Rogers touching his bits, he tried to get the phone from her, she lunged at him and scratched his face. The accused told Kylie that he wanted to hand himself in to be responsible and Kylie said she would organise it.
41. On 3 November 2020, Ms Hinds had a conversation with the accused. Ms Hind recalls the accused crying and he told her that he woke up to Ms Rogers touching him sexually, filming him and putting it on the internet. The accused said that once he realised what was happening, he wanted the SD card from the camera. He asked Ms Rogers for it and Ms Rogers started attacking
20 Aaron GREEN Committal evidence, pg 1212
21 Statement of Aaron GREEN, pg 109 Depositions
22 Statement of Aaron GREEN, pg 109 Depositions
23 Statement of Kylie HALL, pg 131 Depositions
24 Committal evidence of Kylie HALL, pg 1217 Depositions
25 Committal evidence of Kylie HALL, pg 1217 Depositions
26 Statement of Kylie HALL, pg 131 Depositions
him. He told Ms Hinds that he left and Ms Rogers followed him. He told Ms Hinds that he drove a little then got her (being Ms Rogers) out of the boot, that he asked her for the card and she ran off and that she jumped out of the car and he drove off.27
Injuries sustained by the Victim
42. At 5.15pm on 3 November 2020, Ms Rogers was examined by Forensic Medical Registrar, Dr Fred Jayawardene. During the examination of Ms Rogers, Ms Rogers told Dr Jayawardene what had occurred during the assault. In addition, Ms Rogers informed Dr Jayawardene that prior to the assault, both she and the accused had taken methylamphetamine.
43. Upon physical examination of Ms Rogers, Dr Jayawardene observed injuries to her head and neck, consisting of abrasions, bruising and swelling, circular bruises at the front of her left shoulder, a bruise on her left upper back, lacerations and a bruise on her right hand and finger, bruising on her left arm, hand and finger, swelling of her right knee and bruising and abrasions on her right shin, ankle and foot.28
44. In considering the account Ms Rogers provided, together with the injuries he observed, Dr Jayawardene is of the view that many of the injuries to her hard, neck, upper limbs, back and chest and lower limbs were ‘blunt force injuries’ from blows or other impact. Further, Dr Jayawardene is of the opinion that it is possible that the bruises on Ms Rogers’ face and neck occurred in the timeframe of the alleged incident, the bruising to her neck was the result of blunt force, either from compression from/against a blunt object or surface, or a blow from a blunt object and further states that “it is worth noting that the neck is not a common site of accidental injury (for example from a fall) and is more commonly associated with inflected injury.”29
45. Overall, Dr Jayawardene was of the view that:
“The bruising and abrasions are located on multiple body sites and tissue planes which is suggestive an infliction injury rather than an accidental injury. Accidental injury demonstrates patterns of bruising and abrasions on multiple sites of this nature usually only in a complex fall, extreme contact sports or a motor vehicle accident.
Bruising on the hands is in keeping with possible defensive injuries.
Yellow bruising on the anterior chest is more than 18 hours old and may be from fingertips but other causes cannot be excluded. It is not possible to determine the age of any of the other bruises, but they could have occurred at the time of the alleged assault.
Neck compression was reported in the patient's history. Absence of significant findings on physical examination to suggest injuries to the neck do not rule out more serious underlying neck injuries. Neck compression in family violence assaults increase the chance of death.”30
27 Statement of Sharyn HINDS, pg 139 Depositions
28 Forensic Medical Report of Dr Fed Jayawardene, Depositions pgs 576-577
29 Forensic Medical Report of Dr Fed Jayawardene, Depositions pgs 580
30 Forensic Medical Report of Dr Fed Jayawardene, Depositions pgs 581
Investigation, Arrest and Record of Interview
46. Upon attendance at [address omitted], police located a black bra and purple singlet outside of house number 32. At that time, Mr Green provided police with the CCTV box/hard drive that he had taken from [address omitted] when he had attended at the address as per Ms Rogers’ request.
47. Other police officers obtained a warrant to search [address omitted] and attended at that address at about 5.40pm, with the address having been guarded by police since 5.20am that morning. At that time, police located and seized the following items:
o Droplets of what appeared to be blood on the floor near the front doorway
o Several clumps of blonde hair on the floor
o A bedsheet with several droplets of what appeared to be blood and a crowbar on top of a bed located in the front living area
o The crowbar appeared to have blood smeared on it31
o A towel with the victim’s hair intwined
o Multiple droplets of blood throughout the ground floor
o A broken glass ice pipe
o Ammunition
o What appeared to be a black homemade firearm on the kitchen bench
48. The crowbar was forensically examined and blood matching both Ms Rogers and the accused was located on it.
49. The bedsheet was forensically examined and Ms Rogers’ blood was located on it.
50. At approximately 11.20am on 4 November 2020, police attended at [address omitted]. In the driveway of the address, they located the green Holden Sedan, [licence plate omitted] which at that time was covered by a tarp.
51. Upon knocking at the front door of the premises a short time late, Ms Hinds answered the door before the accused walked to the front door and made himself known to police.32 The accused was arrested, cautioned and taken to the Mill Park Police station.
52. At 1.52pm on the same day, the accused participated in a record of interview with police. During the course of the record of interview, the accused provided an alternate version of events and denied physically assaulting Ms Rogers. The accused told police:
o He woke up to Ms Rogers touching him with a GoPro
o He asked her for the GoPro, she wouldn’t give it to him
o She went upstairs and he grabbed the GoPro and saw the SD card was out of it
o He asked her for the SD car and she wouldn’t give it to him
o They went downstairs and were arguing
o He got stabbed in the hand with a crack pipe
o He was also punched in the face
o Things in the house started getting thrown around because he told her he was leaving and that the relationship was finished because of the sick things she does
31 Statement of Daniel ROONEY, pg 212 Depositions
32 Statement of Adam SMYTH, pg 250 Depositions
o He asked her what was on the SD card, she started crying and told him there were things on there that she couldn’t let him see
o She admitted to him that she had been sleeping with other men behind his back
o He asked her for the SD card again, she said it was in the shed
o They walked to the garage together, started going through boxes of stuff
o They went back inside to the kitchen area
o She grabbed the top shelf and the shelf has fallen down and a glass vase smashed him in the head and then heaps of condoms fell out onto the ground
o He asked her what she had been doing and if she had been selling herself
o She said that she’s been sleeping with other men
o He asked if they were his friends of people he knows and she said yes
o He told her she made hi sick, that he hated her and she walked away
o She said “please, please, don’t go” and that she would give him the SD car
o He said no, he wasn’t doing it anymore
o She grabbed a pair of scissors that was on the kitchen table, he tried to grab them out of her hand and his hands were cut
o She started cutting her hair and was yelling and screaming
o He told her that he would leave in please but wanted the SD card because he wanted to know what’s on it of him
o She told him to go to the boot of the car
o He’s opened the boot and asked where it was
o She said it was underneath the spare wheel arch
o He took the carpet out and she grabbed the spare type out
o She was searching around and he said “What are you searching around for? You’ve told me that it was in the garage. I didn’t see you go out to the garage . And now you’re telling me that it’s in the boot of the car? Now – never seen you walk outside to the boot either.”
o They wrestled out the front, behind the boot of the car and she fell into the boot
o He said that he felt like shutting the boot bit on her and she said, “Fuckin’ go then”
o She grabbed the lip holding the boot and pulled int as he had his hands on top of the boot
o The boot shut, he looked up and saw a neighbour out the front, so he jumped in the car, drove to the end of the street, turned right, stopped at the corner, turned right another 2 times then stopped and released the boot, told her to get out and she hopped in the car with him
o He’s turned onto Bridge Inn Road and she started attacking him
o As he’s gone up the road, he’s come to his mate’s house, Johnny and she was yelling and screaming out the front
o He was probably doing 50 or 45kmsp/h and she was trying to jump out of the car, he grabbed her by the T-shirt which has come off
o She’s opened the door while the car was still rolling, smashed her face on the road, he had to slam his brakes on to avoid side-swiping a parked car.
o He looked in the mirror behind him, reversed back and she’s got up as he’s come back
o She left the passenger door open
o He stopped and she was yelling and screaming, running up the street with no top on
o He called her friend, Brenda “explaining all the stuff that – that went on in the middle – in – in – in that night, like, in that few hours of what happened. And I rang my mate John and I asked my mate Johm, you know, “Is she all right?” and he said to me that her face looked fuckin’- like, looked fucked”
o When he was told that they rang an ambulance or something, he said to him (John) that “This is bullshit because now I’m going to be the one that looks like the fuckin’- the – the – the – like, the aggressor”
o He again spoke to Brenda the day after and asked if she (Joyce) was alright
o He asked Brenda to speak to her and make sure that she was all right because at that time, he had her phone in the car with him and couldn’t get in contact with her
o He was going to hand himself in to the police to provide his side of the story and show the photographs
o He got the GoPro about four days prior and it had a memory card in it
o It didn’t have any photos or anything on it
o It had 120 videos on it and he said to her that he hadn’t taken any videos, that it was brand new and he had left it on the bench
o He saw when it was opened a girl standing “there with a set of tits. And I said to her, “What the fuck have you been doing?” you know. And that’s how it all, like, started off, you know.”
o He was stabbed with the ice pipe and it would have been on the bed with his blood all over it
o When he told her he was leaving, he picked up the pipe off the bench and Joyce punched him in the face, grabbed him and the pipe shattered in his hands
o He then put her on the bed and told her that he wasn’t doing it anymore and that he was going
o Things were thrown around, including bags of sugar and V drinks
o When he said he was leaving, she grabbed him and told him that he wasn’t going anywhere and “then she fuckin’ went her little schizo attack, starting fuckin’ cutting her hair off, you know”
o His hands were cut when she got him with the scissors
o He asked his auntie to take photographs of the cuts
o He had his hand on the back of Ms Rogers when they walked to the car
o While walking to the car he said to her “Don’t run off”
o He said this because she was yelling and screaming and he said to her, “Don’t make me look like the bad one”
o He wasn’t holding her at that stage but he had his hand of the back of her neck
o While standing at the back of the car, she started getting aggressive with him, he grabbed her, she grabbed him
o “She’s gone into the - fallen into the boot and like I said, yeah, then I just – then I’ve, like – as I’ve looking and I – as the boot – I’ve seen the neighbour and I thought, “Fuck, here we go. That’s all I need””
o “And then she ended up fuckin’ going – then she grabbed her hand where the – where the – the – the – where the thingo is cause she’s gone in like this, grabbed it like this. I’ve had me hands on top of the boot. She goes, “Fuckin’ shut the – shut it,” carrying on. Boot’s gone down. I’ve drove out of the street, turned right, popped the boot release, told her to get the fuck out of the boot. She jumped in the car. She jumped through the back seat into the passenger seat”
o At the back of the car near the boot, they had a scuffle “Like – like, a scuffle, like – like – like, I dunno. Hard – it’s hard to explain, like, you know. And she’s gone in the boot and that’s all I really remember, is that the boot’s coming down. I’ve gone to the street, I fuckin’ popped the boot, I said, “Get the fuck out,” you know.”
o That he was wrestling with her and “I can’t really – like, I remember grabbing her like this. She’s gone into the fuckin’ boot. She’s in the – the – the whatever it was. She goes, “Fuckin’ shut the boot then,” you know. She grabbed the thing. I’ve gone like that with my hands on top of the lid. The boot’s gone down. Gone to the
end of the street, I’ve pulled over. I said, “Get the fuck out of the boot.””
o After Ms Rogers got out of the car, he drove though Mill Park, called his sister and spoke to his ex-partner and explained what the situation was.
o He called Aaron and Brenda and explained the situation and then met up with his auntie
o His auntie told him that go and stay with her and said that he had to hand himself in. He said, “Yeah, no worries” and told her that he needed a day or two.
o He had Joyce’s phone with him in the car and used that phone to call Aaron and Brenda.
o When asked where that phone was now, he answered “The phone, I threw it out ... (because) I – I was pissed off, you know” (Charge 4: Theft)
o He was not physical with Joyce, “I was just – it was – it was – it was yelling, that’s all it was. It was yelling and then fuckin’ shit started getting thrown around the house, you know.”
o He never punched her or used any weapons
o Earlier on the day of the incident, Aaron, Brenda and her daughter were at his house
o He and Joyce had had a few arguments for a few weeks about his believe that she was sleeping with other people
o He was aware of one incident with Joyce and his friend being involved in a video chat involving Joyce in the shower and his friend masturbating and that he confronted his friend about it
o After Brenda and Aaron had left, he was tired as he’d “been up for a couple of days” so he went and laid down. He woke up to Joyce on top of him with a GoPro and he asked her what she was doing
o He denied hitting Joyce with a piece of wood stating, “... if I had’ve hit her with a piece of wood, I would’ve broke her leg or broke her arm, you know.”
o He denied wrapping the towel around her head
o He denied hitting her with the crowbar
o He denied stomping on her head, stating “She’s – this is all lies”
o He denied cutting her hair
o He didn’t drag her along to the car
o He denied saying that “You’ll be a dead body when I dump you at Mt Disappointment”
o She tried to jump out of the car when it was travelling at 45-50 kms per hour and he grabbed her T-shirt that ripped of her and said, “What the fuck are you doing? And then, bang, see her hit the road and I’m like, “Oh, my God.” And then I’ve – I’ve looked to the side of the car and I’m like, inches away from side-swiping a car on the right-hand side”
o He said that he never hit her with the [passenger] door
When shown photographs taken from inside the property, stated:
o He couldn’t tell police how the crowbar, timber and a crack pipe got on to the mattress
o The blood on the bed was “cause two days before that she had her period, you know what I mean, and we had sexual intercourse and fuckin’ blood was everywhere, you know. . .’”
o The blood on the floor was from when Joyce cut herself on her foot while they were renovating
o The droplets of blood inside the house are Joyce’s from when she cut her foot
53. The vehicle used during the incident was forensically examined by police on 5 November 2020. As a result of the forensic analysis, the following was located:
o 2 blood swabs from the front passenger seat, with the blood matched to that of Ms Rogers
o A strand of hair located between the front passenger seat and the console
o 3 strands of hair on top of the front passenger floor pat
o Strands of hair on the driver side floor and on transmission hump33
54. At the conclusion of the record of interview, the accused was remanded in custody.
Charge 6 – Persistent Contravention of a Family Violence Intervention Order
55. On 4 November 2020, an Interim Family Violence Intervention Order was obtained by police. The order prohibited the accused from contacting Ms Rogers in any way. The accused consented to the order and was present in Court when the order was made. Constable Colosimo also served the order on the Accused on that date.
56. A Final Family Violence Intervention Order was made on 11 December 2020, in the same terms as the interim order, in that the accused was prohibited from contacting Ms Rogers by any means. This was served on the accused on the 8th of January 2021 by Constable Chamberlain. The Interim Family Violence Intervention Order remained in place until the final intervention order was served.
57. In breach of the Family Violence Intervention Order, the accused contacted Ms Rogers via telephone on 11 separate occasions between the 16th day of December 2020 and the 6th day of January 2021.
Charge 5 – Attempting to Pervert the Course of Justice
58. Between 2 December 2020 and 26 January 2021, the accused had telephone contact with Ms Rogers. During the telephone calls (which were recorded), the accused asked Ms Rogers about making a ‘stat dec’ and further told his sister to tell Ms Rogers to say it (being the actions giving rise to Ms Rogers’ injuries) was a sex act gone wrong.
59. On 2 December 2020, the accused telephoned his sister, Kylie Hall and she connected the phone call to Ms Rogers. During this telephone conversation (which was recorded), the accused tells Ms Rogers that he was on oxycontin and didn’t even really remember the night. When Ms Rogers says to the accused, “Judd, Judd, you could’ve end my life, yeah?” he replied with “Yeah, I know, I know, I fucked up. All right. I know that. All right.”
60. During this same conversation, all three persons discuss Ms Rogers making either an affidavit or a ‘stat dec:’
oMs Rogers: - - - gunna see - I'm gunna see what I can do on my end. Yeah? I can't fuckin' promise, you know, to move mountains, but I'll try.
oAccused: Yeah.
oMs Rogers: Even if I do, like, you're still gunna be looking at a big stint. Yeah?
33 Statement of Adam SMYTH, pg 253 Depositions
oAccused: Yeah, it's all right.
oKylie: Yeah. But any - anything will be a help.
oMs Rogers: I know, I know. I'll try.
oKylie: You know?
oAccused: All right.
oKylie: And that's what I said, if they - if they won't accept it, you just write the stat dec and then his solicitor
oMs Rogers: Yeah.
oKylie: - - - can just show it.
oMs Rogers: Or the affidavit.
oKylie: Yeah.
oMs Rogers: Yep. 'Cause that's the
oKylie: Yeah.
oMs Rogers: - - - court one, the affidavit I think.
oKylie: Yes. But - yeah. But if you write a stat dec that's a legal binding document
oMs Rogers: Yeah, I know.
oKylie: - - - sign a stat - yeah.
61. On 4 December 2020, in a recorded conversation with his sister, the accused tells his sister that he needs her to “to do that thing” and says, “”She’s fuckin’ around and I gotta say to her, “Listen,” you know what I mean, “what the fuck are you doing?”” Ms Kylie Hall responds with, “Yeah – nuh, nuh, nuh, don’t because that’s not gunna make her wanna do it.” After some further conversation, the accused says to his sister, “Yeah – no, I won’t. I just – she’s gotta say it was a sex act gone wrong, Kylie”
62. In a further conversation with Ms Rogers and the accused’s sister, Kylie, the following is discussed:
o Accused: Can I talk to you for a sec?
o Ms Rogers: Yeah.
o Accused: Hey, I don't wanna fight with ya. Yeah?
o Ms Rogers: Yeah.
o Accused: All right? I've fuckin' put me hand up. I've - I've nodded to a gun, all right. I got a charge on ammunition, yeah. I've been charged on fuckin' theft of a fuckin' car, that you're trying to charge me on, yeah. Like, come on, man.
o Ms Rogers: Mm'hm.
o Accused: Huh?
o Ms Rogers: Yeah.
o Accused: Like, what are you doing? Like, seriously, you're giving me clothes away. You're - you're - like, all right, you're dirty at me, all right. I'll cop it on the chin. But how much more do you wanna do to me? I don't wanna fight with ya, yeah. I got no intention - - -
o Ms Rogers: Mm.
o Accused: - - - of arguing with ya. I don't wanna fight with ya. I'm not carrying on. But just come on, like, please.
o Ms Rogers: What do you want me to do?
o Accused: Nuh, well, listen, I'm in the wrong, yeah, and I'm paying for the consequences of what I've done, yeah. But just, fuck, meet me in the middle a little bit, you know what I mean, like, please. Like, they've charged me on everything, you know.
o Ms Rogers: What do you want me to do?
- Accused: They've charged me on theft of a phone, they've charged me on fuckin' standing over. Like - like, come on, I never stood over ya. Like, come on, please. I don't want ya to say nothin'. Just just - just hear me out. Yeah?
o Ms Rogers: I'm hearing you out. Tell me what you want.
o Accused: Just fuckin' help me out, mate, like - - -
o Ms Rogers: With what? How?
o Accused: Mate, I'm looking .......... seven .......... five, you know what I mean, or - - -
o Kylie: Yeah. She's saying how do you want her to help out? 'Cause she's ..........
o Accused: Like, I'm not out - like, I don't wanna say too much on the phone, right. But the – the other two things, yeah. You know what I'm talking about. Yeah?
o Ms Rogers: Yeah.
63. In a further conversation
o Accused: It’s not about – listen, this is – I need you to do me a solid. Yeah?
o Ms Rogers: Well, what is it? Tell me then
o Accused: If you give a fuck about me, yeah, you’ll do one thing for me. Yeah? Yeah?.
o Ms Rogers: Mm
o Accused: I need you to go do that thing for me
o Ms Rogers: The stat dec?
o Accused: I need you to do a stat dec, yeah, ASAP
o Ms Rogers: Yeah
o Accused: Yeah?
o Ms Rogers: Mm’hm
o Accused: But I need you to say – my sister knows, you know what I mean
o Ms Rogers: Mm’hm
o Accused: Please
o Ms Rogers: Alright
o Accused: That’s all I’m asking ya
64. On 16 December 2020, during another conversation between the accused and Ms Rogers, the accused says “You haven’t done what I asked you to do?”
65. In a further conversation the following day, being 17 December 2020, the accused and Ms Rogers have the following conversation:
o Accused: Listen, have you done that thing, bub? Nuh?
o Ms Rogers: Well, not yet. I’ve had a long going on
o Accused: I can’t – I can’t say what was I was gunna say to you on the phone, but. . Right, I’m gunna try and go for credit bail, all right, but I need you to do that thing for me, please, bub
66. As a result of the telephone calls, on 18 December 2020 Ms Rogers made a statutory declaration seeking to recant and withdraw her original statement. In the statutory declaration, Ms Rogers stated her original statement of 3 November 2020 was not entirely true and that the assault that occurred “was in fact an intimate sexual act of roll playing that went too far and got way too out of hand very quickly with inexcusable actions made on my partner Justin Hall’s behalf.”
67. On 24 December 2020, the accused and Ms Rogers have another conversation:
o Ms Rogers: I did a stat dec yesterday
o Accused: Did you?
o Ms Rogers: Yeah. So I handed it in
o Accused: I love you, Joyce
o Ms Rogers: I love you, too, baby
o Accused: I had –
o Ms Rogers: I want you home
o Accused: - the teleconference call with the – with the solicitor. Yeah?
o Ms Rogers: Yeah
o Accused: If that’s done and it’s stating that – that we’re in a relationship and – and fucking – and you come to court...and you write – and – and – and you do in the bit of paper that we’re in a relationship, yeah, and you come to court, yeah, I’ll get bail he reckons
68. On 28 December 2020, the accused and Ms Rogers have a further conversation:
o Accused: Yeah, don’t worry. Alls you’ve got to do is what I said to you.
o Ms Rogers: I’ve done the stat dec.
o Accused: No, it’s not that. I’m not…
o Ms Rogers: I asked – your sister’s ---
o Accused: ---that – don’t worry about that.
o Ms Rogers --- taking me to court.
o Accused: like, just don’t – I can’t – everything I’m saying gets recorded….
o Accused: Just don’t go on the day and then I’ll get my sister to grab it because she’ll have to go and pick it up.
o Accused: Yeah, last night.
o Ms Rogers: And than – I already told her to give it to you.
And later in the conversation
o Accused: You’ve got to do a letter for my solicitor.
o Accused: Yeah. And fucking you can get – you’ll have to fucking probably get up and – you know what I mean?
o Accused: Because I’m – I’ve – I’ve – I was lodging a bail app but you know.
69. Again on 28 December 2020, the accused and Ms Rogers talk:
o Ms Rogers: She grabbed your shoes and the stat dec.
o Accused: What stat dec?
o Ms Rogers: That I did for ya.
o Accused: Oh had – oh, is – what is it? A photocopied one?
o Ms Rogers: No
o Accused: Huh?
o Ms Rogers: No
o Accused: What do you mean?
o Ms Rogers: it’s original
o Accused: How come – you – you – you gotta lodge it.
o Accused: You have to lodge it.
o Ms Rogers: I gave it to her, the original, to give to your lawyer.
o Accused: Oh, so – but I’m saying, that other – the other party they got it.
o Accused: And tell him that, and then – yeah, tell him that you – you’ve given the thingo to my sister and just explain to him – because you’ll have to get up – he’d probably want another letter from ya, to state that we’re in a relationship and all that shit.
70. On 12 January 2021, the accused and Ms Rogers have another conversation as follows:
o Accused: Nuh, fuck all. Hey, you know that thing you - you done?
o Ms Rogers: The what?
o Accused: You know that thing you done?
o Ms Rogers: Yeah.
o Accused: You didn't get the thingo to sign it.
o Ms Rogers: The - Smyth?
o Accused: No - no, the - no jack signed off on it, did they?
o Ms Rogers: No.
o Accused: It needs to be signed.
o Ms Rogers: All right.
o Accused: My sister reckons it's - it - it's - the way that it's done it looks like that I've fuckin' forced you to go and do it.
o Ms Rogers: Nuh, nuh, nuh, I'll sort it out.
o Accused: 'Cause they wanna get you up in a box and cross examine ya.
o Ms Rogers: Mm.
o Accused: I was speaking to me sister yesterday and she reckons she spoke to her. Babe
- - -
o Ms Rogers: Mm.
o Accused: - - - I think they're gunna subpoena you to come to court.
o Ms Rogers: Oh, O.K., fair enough.
o Accused: Yeah.
o Ms Rogers: When's this happening?
o Accused: I dunno, he said - he says they - he wants to put you in a - he goes - he wanted to put you in a box to cross examine ya, but you got a ........... chance that you get charged on perjury.
o Ms Rogers: Mm.
o Accused: And it's a gaol offence.
o Ms Rogers: Mm.
o Accused: I said, "Oh, fuck me dead."
o Ms Rogers: Well, what do you want me to do?
o Accused: Well, there's not much you can do, babe, you know what I mean. But I'm not gunna - - -
o Ms Rogers: So what, I'm looking at going to gaol?
o Accused: Nuh, well, I'm looking at four years. Four years on the top with two and half on the bottom.
o Ms Rogers: So when's your court case?
o Accused: - - - being in here, mate. I'm over gaol, mate, I'm over it. Just got a lot of stuff going, I'm stressed out at the moment.
o Ms Rogers: With - with what? The - - -
o Accused: ..........
o Ms Rogers: Huh?
o Accused: I need - I'm tryna fuckin' get me mum, she won't put her house up.
o Ms Rogers: Yeah.
o Accused: Fuck.......... if I get found guilty I'm looking at fuckin' five years.
o Mr J Rogers: Can you appeal it?
o Accused: Yeah, it's fucked still, fuck, five years is a long time, I've already done 10 years.
o Mr J Rogers: Fuckin' oath it is, fuckin' oath it is.
o Accused: 10 years and then fuck, another five, it's 16 fuckin' years of my life in gaol.
o Ms Rogers: Do you hate me?
o Accused: Nuh, I never hate ya, never hate ya. It is what it is, it's my own fault.
o Ms Rogers: Do you hate me?
o Accused: What?
o Ms Rogers: Do you hate me?
o Accused: It's my own fault, my own stupidity. Can't blame ..........
o Accused: At the end of the day it's like this, yeah. We're in a relationship, yeah.
o Ms Rogers: Yeah, fuckin' oath.
o Accused: Right. At the end of the day I haven't said nothing to you, he's done a statement of no complaint, yeah.
o Ms Rogers: Mm.
o Accused: Because we're in a relationship, yeah.
o Ms Rogers: Mm, mm.
o Accused: At the end of the day he can't do nothing.
o Ms Rogers: Yeah, but because I've withdrawn my statement that's where he can get me on perjury. I - I don't give a fuck anyway, I'll stick staunch, I don't give a fuck.
o Accused: You do give a fuck.
71. The contact on 12 January 2021 constitutes summary charge 25.
72. On 26 January 2021 the accused continued to contact Ms Rogers via a third party after her phone number was removed from his call list. This contact constitutes summary charge 26.
73. The statutory declaration was provided to the informant, Adan SMYTH via email on 8 February 2021.34
74. Ms Rogers was pressured to make the statutory declaration by the accused, with him telling her what to write in the document. Ms Rogers wrote the document as the accused told her that if he was released on bail, then he would be able to return her property (being two vehicles) to her.
75. The accused was not interviewed in respect of the attempt to pervert the course of justice and associated charges.
Victim Impact Statement
76. On 17 November 2021, Ms Rogers made a Victim Impact Statement which will be tendered on the Plea. Ms Rogers has requested that the contents of her Victim Impact Statement be read in open court.
Maximum Penalties
| No | Charge | Details | Maximum Penalty |
| 1 | Intentionally Causing Injury | Rolled up charge comprising of the following: 1. Striking the victim on the left arm and left leg; | 10 years imprisonment |
34 Adam SMYTH, Committal evidence, pg 1230 Depositions
| 2. Wrapping a towel around her head; 3. Hitting the victim’s back and lets with a crowbar; 4. Stomping on the victim’s head about three times; and 5. Placing a fist over the victim’s throat. | |||
| 2 | Making a Threat to Kill | Telling the victim, “You’ll be a dead body when I dump you at Mount Disappointment” | 10 years imprisonment |
| 3 | Kidnapping | Putting the victim in the boot of his car and driving a short distance before then taking her out of the boot and walking the victim to the front seat of the car. | 25 years imprisonment |
| 4 | Theft | Of the victim’s mobile phone (admitted in ROI). | 10 years imprisonment |
| 5 | Attempting to Pervert the Course of Justice | Contacting the victim between 2 December 2020 and 26 January 2021 and requesting her to make a statutory declaration to replace her police statement and to provide such statutory declaration to police. | 25 years imprisonment |
| 6 | Persistent Contravention of a Family Violence Intervention Order | Contacting the victim by telephone between 16 December 2020 and 6 January 2021 | 5 years imprisonment |
| Summary Offences | |||
| 7 | Committing an Indictable Offence Whilst on Bail | At the time of the offending, the accused was on bail for other matters. | 3 months imprisonment or 30 penalty units |
| 8 | Contravening a Conduct Condition Whilst on Bail | At the time of the offending, the accused did not inform police of a change of address. | 3 months imprisonment or 30 penalty units |
| 25 | Contravening a Family Violence Final Intervention Order | The accused contacting the victim on 12 January 2021, after having been served with a Final Family Violence Intervention Order. | 2 years imprisonment or 240 penalty units |
| 26 | Contravening a Family Violence Final Intervention Order | The accused contacting the victim on 26 January 2021, after having been served with a Final Family Violence Intervention Order. | 2 years imprisonment or 240 penalty units |
Category 2 Offending
77. The offence of Kidnapping is a Category 2 offence, pursuant to s3(1) of the Sentencing Act 1991. Accordingly, a custodial term must be imposed on this charge unless one of the exceptions contained is s5(2H) apply.
Pre-Sentence Detention
78. The accused has been in custody since his arrest on this matter which occurred on 4
November 2020. Accordingly, there is 491 days of pre-sentence detention available as at 10 March 2022.
Disposal Order
79. A Disposal Order is sought in relation to the items collected and seized during the investigation of this matter and set out in the Disposal Order dated 10 March 2022.
Chronology
| Date | Event | Outcome |
| 2 November 2020 | Offences Committed | |
| 4 November 2020 | Accused arrested and Filing Hearing conducted | Remanded in custody |
| 28 January 2021 | Committal mention | Committal listed in June 2021 |
| 26 February 2021 | Special mention | Committal date vacated as informant not available and Committed listed for 12 April 2021 |
| 12 & 13 April 2021 | Contested Committal | Accused committed for trial |
| 11 May 2021 | Directions Hearing | Adjourned to 8 July 2021 |
| 8 July 2021 | Directions Hearing | Listed for Case Conference on 27 August 2021 |
| 27 August 2021 | Case Conference | Listed before Judge Tinney |
| 2 September 2021 | Plea offer made by defence and accepted by prosecution | |
| 3 September 2021 | Accused arraigned | Short form arraignment completed. Listed for plea hearing on 1 December 2021 |
| 1 December 2021 | Plea hearing vacated due to delays involved in obtaining a psychological report | Plea administratively adjourned to 10 March 2022 |
| 10 March 2022 | Plea Hearing |
Michelle Zammit Counsel for the Prosecution
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