Director of Public Prosecutions v Harvey (a pseudonym)

[2022] VCC 1166

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RORY HARVEY (a Pseudonym)

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2022
DATE OF SENTENCE:	4 July 2022
CASE MAY BE CITED AS:	DPP v Harvey (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1166

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:              Plea to offences of recklessly causing injury, conduct endangering persons, make threat to kill and sexual assault – offences committed against domestic partner – incidents of violence and threats of violence offending committed over a span of ten years – limited but relevant criminal history - substantial delay between most serious instances of offending and sentence – utility of plea during COVID-19 pandemic – dysfunctional childhood marked by family violence - strong work history over past three years – reduced alcohol consumption significantly - reasonably good prospects of rehabilitation – general deterrence,  denunciation and community protection – combined sentence of imprisonment and community correction order

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991; Summary Offences Act 1966

Cases Cited:Mercer (a pseudonym) v. The Queen [2015] VSCA 257; R v. Worboyes [2021] VSCA 169; Bugmy v. The Queen (2013) 249 CLR 571; Black v. The Queen [2022] VSCA 125

Sentence:                  12 months’ imprisonment and a 2-year community correction order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Crouch	Office of Public Prosecutions Victoria
For the Accused	Mr T. Fitzpatrick	SWD Legal

HER HONOUR:

1Rory Harvey[1], following a sentence indication given by me on 11 April 2022, you pleaded guilty to the following offences on 24 June 2022:

(a) recklessly causing injury contrary to s 18 of the Crimes Act 1958 (‘the Act’),  the maximum penalty for which is five years’ imprisonment (charges 1 and 3);

(b) conduct endangering serious injury contrary to s 23 of the Act, the maximum penalty for which is five years’ imprisonment (charge 2);

(c) making a threat to kill contrary to s 20 of the Act, the maximum penalty for which is ten years’ imprisonment (charges 4 and 6); and

(d) sexual assault contrary to s 40 of the Act, the maximum penalty for which is ten years’ imprisonment (charge 5).

[1]A pseudonym

2You have also pleaded guilty to a related summary offence of unlawful assault contrary to s 23 of the Summary Offences Act 1966, the maximum penalty for which is 15 penalty units or three months’ imprisonment.

3These offences relate to incidents of violence, threats of violence and a sexual assault committed against your former domestic partner, Ms Laura David[2] between 2010 and 2020.

[2]A pseudonym

4You have admitted your prior criminal history, which relevantly includes two prior convictions for violent offending against Ms David for which you were sentenced to terms of imprisonment.

Circumstances of offending

5The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 2 June 2022,[3] which is the agreed basis upon which you are to be sentenced.

[3]Exhibit  A

6By way of background, you and Ms David commenced a relationship in August 2009. You were 22 and she was 19 years old at that time. The relationship was a good one at first, and you soon moved in together, living with your sister. In September 2009, Ms David learned that she was pregnant. At 27-weeks, she went into pre-term labour and was flown to Melbourne. At this stage, you remained supportive despite difficulties with periods of homelessness. When Ms David returned from Melbourne, she obtained housing in Warrnambool through family services. On 14 April 2010, Ms David gave birth to a daughter at 35-weeks. The baby remained in hospital for a period after  Ms David had been discharged. It was while the baby was still in hospital and Ms David had returned home that you were first violent towards her.

Charge 1 – Recklessly causing injury

7Soon after Ms David returned home, on a date between 21 April 2010 and 28 April 2010, the two of you had an argument about you not providing Ms David with enough support and not attending the hospital to see your child. Ms David told you that “she was done and that you weren’t helping” and that you needed to leave the house. In the course of the argument, Ms David went to close the fly screen door and had her left hand near the frame of the door. You were screaming at Ms David when you grabbed the door and slammed it on her hand. This conduct is the subject of Charge 1 – recklessly causing injury.

8You continued yelling at Ms David, saying “your fucking finger’s bleeding”. You took Ms David to hospital for treatment, but told her not to say anything. Ms David told hospital staff that her hand had been jammed in the door.

9A radiology report from the hospital confirmed that no fracture or joint injury to the finger was detected on X-ray.

Charge 2 – Reckless conduct endangering serious injury and charge 3 – recklessly cause injury

10Charge 2 relates to an incident in October 2013. At this time, you planned to go away on your own as it was close to the anniversary of your mother’s death. Ms David remained at home with the two children. On the day after you left, Ms David contacted you stating she needed help with the children as she was unwell. You returned home, but became angry because you thought Ms David was not as ill as you were led to believe.

11You told Ms David to get out of bed. An argument followed, and in the course of that argument, you grabbed the victim by the throat, held her up against the door and continued pushing against her throat with one hand. This conduct is the subject of Charge 2 – reckless conduct endangering serious injury.

12In response, Ms David tried to knee you in the groin. You then punched her to the left side of her face. This conduct is the subject of Charge 3 – recklessly causing injury. Ms David took the children into the bedroom and would not let you in. You were yelling, kicking and throwing items around. You then left in your car.

13Following the punch to her face, Ms David’s ear hurt and she realised blood was coming out of it. She did not seek medical treatment until she was no longer able to hear out of that ear. Ms David now suffers ringing in that ear and slight hearing loss.

Charge 4 – threat to kill

14Towards the end of October 2013, you returned home in a bad mood. Ms David asked you for help with the children and in response, you called her fat and lazy. Ms David proceeded to bathe the two children. You entered the bathroom, grabbed her by the hair and yelled, “I’m going to drown you, you dumb dog. You have a smart mouth on someone who is as fat and ugly as you.” This is the conduct that is the subject of Charge 4 – make threat to kill. Ms David told you to leave and you replied, “Yep, I’m not fucking coming back.”

Relationship between late 2013 and 2019

15The relationship ended in November 2013 although you continued to see each other on a casual basis. In late December 2013, Ms David found out she was pregnant to you. You told her that you did not want her to keep the baby. On 6 January 2014, Ms David went into hospital with pains and asked you to pick up the other children up from the hospital. When you attended, you said to Ms David, “I hope you die from this”. Two days later, she suffered a miscarriage.

16You continued to attend Ms David’s house frequently. You would ask her to make it “worth your while” which she understood to mean that you wanted to have sex. Ms David did so as she believed you were both working on your relationship.

17In late March 2014, Ms David discovered she was pregnant to you. She refused your request that she have an abortion.

18In June 2014, Ms David became aware you were in another relationship and sought to end all contact, as you were frequently angry. However, you continued to see each other from time to time and to engage in sexual intercourse.

19Ms David gave birth to a son in October 2014 and then soon found out she was again pregnant. She gave birth to another son to you in October 2015. Prior to the birth, your eldest daughter moved in with you. Ms David agreed to this arrangement as you had told her she would otherwise lose custody of her children.

Charge 5 – sexual assault  and summary charge 9 – unlawful assault

20The next incident occurred on 17 February 2019, by which time you were 30 and the victim was 27 years old. On that occasion, Ms David was waiting for you to pick up the children. You were not allowed inside her house. Nonetheless, you entered the house to hurry the children up, and as you passed Ms David in the hallway, you grabbed her breast saying, “We should have some fun”. Ms David replied, “Maybe you should wait outside for the girls.” This is the conduct that is the subject of charge 5 – sexual assault. You then slapped Ms David to the left side of her face and walked outside to the car to wait for the children. The conduct of slapping the victim to the side of her face is the subject of the summary charge of unlawful assault.

Charge 6 – threat to kill

21Child care arrangements between the two of you continued to be points of conflict. In February 2020, Ms David asked to change contact arrangements for the children. You refused, stating that you had made arrangements to go camping with them. Ms David asked if the children could ring her so she could tell them herself. You became angry, saying, “How the fuck are they supposed to call you when I am at work” and that “You are going to end up in a body bag.” When Ms David asked what you meant, you replied, “Either I’ll do it or someone else will.” Ms David understood this meant you were going to kill her. This is the subject of Charge 6 – making a threat to kill.

22You were arrested and interviewed by police on 16 March 2020. During the record of interview, you denied the offending and provided an alternative version of events. You were remanded in custody and served 42 days before being granted bail.

Prior criminal history

23Your prior criminal history, although not extensive, includes two relevant prior convictions for offending involving Ms David. I note that the incident giving rise to Charge 1 in 2010 occurs prior to these convictions but the other charged incidents occurred subsequently.

24On 21 January 2011 you were sentenced to 6 months’ imprisonment for recklessly causing injury to Ms David. That charge arose from an incident on 1 October 2010 when you pushed a door knocking the victim to the ground and then proceeded to slam the door into her stomach three or four times. Ms David was approximately 11 weeks’ pregnant at the time. You received a total effective sentence of 10 months’ imprisonment on 21 January 2011 for this and other unrelated offending.

25On 17 April 2011, Ms David gave birth to another child. On a date in August 2011, you returned home from work where Ms David was using the computer at home. When she saw some female pornography on it, Ms David said to you, jokingly, “You get to have naked ladies, so I can have naked men.” In response, you punched her to the face and then smashed the computer.  Ms David called a friend and was picked up. Her mother called the police. As a result of this incident, Ms David lost custody of her children for one year.

26On 18 October 2011 you pleaded guilty in the Magistrates’ Court to a charge of recklessly causing injury to the victim arising from this incident. You were sentenced to 12 months’ imprisonment, with a non-parole period of four months for this offence and the offence of contravening a family violence intervention order.

27These prior matters are relevant to my assessment of your prospects of rehabilitation and the need for the sentence to specifically deter you from committing acts of family violence into the future. I will return to these matters later in my reasons for sentence.

28The other offences for which you have been sentenced are predominantly driving matters, including charges of driving whilst disqualified and dishonesty offences in 2008 for which you were sentenced to a period in youth detention. You received a 1 month suspended sentence for breaching an alcohol interlock condition in 2010, a sentence that was restored in January 2011 for other driving offences including driving whilst suspended and again breaching an alcohol interlock condition. It was on this occasion you were also dealt with for recklessly causing injury to Ms David, receiving a total sentence of 10 months’ imprisonment.  This was followed by the sentence of 12 months’ imprisonment imposed on 18 October 2011. You were sentenced to 2 months’ imprisonment in January 2015 for two charges of breaching an alcohol interlock condition and a dishonesty offence.

Nature & Gravity of offending

29I turn now to discuss the nature and gravity of your offending.

30Instances of violence, and threats of violence, in the context of a domestic relationship are viewed seriously by the courts and the community. As stated by the Court of Appeal in the case of Mercer:[4]

This Court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts…offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable.

[4]Mercer (a pseudonym) v The Queen [2015] VSCA 257 at [54]

31In relation to charge 1, you slammed the door on the victim’s hand knowing that when you did so, it would probably cause injury. Your conduct on that occasion has a number of aggravating features. The victim, then aged 19, had recently returned home following the birth of a premature child, and the assault occurred following an argument about your role in assisting her with your daughter’s care. Callously, you continued to yell at the victim after the incident, saying “your fucking finger is bleeding”. Although you took the victim to the hospital, you told her to not to say anything about the circumstances. Fortunately, the victim did not suffer any fracture or joint injury as a result.

32The second incident occurred in October 2013, after you were sentenced for the offence of recklessly causing injury to the victim in January and again in October 2011. These sentences had not deterred you from further violent offending against Ms David.

33Your conduct on this occasion was appalling. You grabbed the victim by the throat, then held her up against the door as you continued pushing against her throat with your hand. In choking her, you foresaw there was an appreciable risk of serious injury, but went ahead regardless. You again responded violently to a perceived grievance; this time about whether the victim was too ill to care for the children alone. The victim was in bed in her home at the time you began arguing with her. She was entitled to be safe from violence, particularly violence from you – her partner - in her home. This is a serious example of the offence of reckless conduct endangering serious injury.

34After choking the victim, you then punched her to the side of her face causing her immediate pain. The assault to the side of her face has left the victim with ringing in the ear and slight hearing loss. It is of concern that this incident occurred while the children were at home and then experienced the distress undoubtedly caused by you yelling, kicking and throwing items when Ms David took refuge with them in her bedroom.

35Again, it is in the context of an argument with Ms David about helping with the children that you grabbed her by the hair and then threatened to drown her in October 2013. The threat was preceded by offensive verbal abuse.

36Although your relationship with the victim was fraught with conflict thereafter, there was no further offending by you until February 2019; a gap of six years.

37The sexual assault by grabbing at the victim’s breast in February 2019, whilst unwelcome and disrespectful, was momentary.  I accept this is a less serious example of this type of offence. However, your conduct in slapping the victim to the face, following immediately upon her telling you to go outside to wait for the children, and the threat to kill her in February 2020, are further instances of you responding to an argument with your former partner by using actual or threatened physical violence.

38Your offending over this period has significantly impacted on the victim’s wellbeing and sense of trust. In Ms David’s victim impact statement dated 11 May 2022, she speaks of her loss of self-confidence, increased anxiety and sadness at this time. As a result of your conduct, she withdrew from social contact and became increasingly anxious; describing how loud noises and voices would fill her with fear. In addition to the physical effects of your violence, Ms David says her mental health was also affected. I have taken the multi-faceted impact of your offending on Ms David into account in sentencing you.

39In sentencing you for this offending, I must clearly denounce your violent conduct and deter others who are similarly minded to resort to violence or threats of violence when in conflict with their partner or former partner.

Personal circumstances

40I turn now to discuss your personal circumstances.

41You were born in March 1988 and are now 34 years old.

42You experienced a difficult childhood. You grew up in the Mortlake and Warrnambool areas; the youngest of three children. Your mother, who had raised you and your brothers until you were 7, passed away due to cancer in 1995. You were then raised by your grandparents, until moving to live with your father and his partner when you were 10 years old. Your father, an alcoholic, was a violent man and your childhood and early adolescence was punctuated by significant family violence. You report that your father would hit you if you “looked the wrong way” and that on one occasion you were thrown through a window.[5] You regularly witnessed your father physically fighting with others. You were also exposed to violence perpetrated by your father against your step-mother, ultimately leaving home following an incident where you intervened in a violent dispute between the two of them.

[5]Outline of Submissions For Sentence Indication, at [2]

43You, in turn, started drinking at the age of 15 years, and developed a problem with heavy drinking that persisted during your relationship with the victim. During your CCO assessment, you advised the Community Corrections officer that you were drinking daily at the time, consuming “a couple of bottles of bourbon each time”.[6]

[6]Community Correction Order Assessment Outcome Report dated 27 June 2022.

44You completed Year 11 at Mortlake High School. At the age of 17, you commenced a panel beating apprenticeship and completed two years of that apprenticeship only to discover that you had not been properly enrolled. Your employment history since then has been somewhat erratic. You undertook various roles working in factories over the next six years, then as a machinist for a paving company and as a mobile crane operator with a hardware store. You were unemployed for various periods, including at times during which this offending occurred. However, for the past three years you have been continuously employed on a full-time basis as a driver for Wheelie Waste, a waste management company.

45You are the father of six children. Your eldest son has lived in your full-time care since April 2020 due to behavioural issues at school. He is 13 years old. Your eldest daughter lived with you for approximately five years between 2015 and March 2020. Your other daughter lived with you for periods between October 2018 and March 2020. Following your arrest and remand on these matters on 16 March 2020, you lost the full-time care of your two daughters. After being bailed in April 2020, you were only permitted supervised contact with your daughters which has since increased to unsupervised access on a fortnightly basis and during half of school holidays. You continue to pay childcare support to Ms David in respect of the children.[7]

[7]Exhibit 3, Child Support Assessment dated 15 February 2022

46In 2016, you commenced a new relationship. With your new partner, you bought a home in 2021 and share a mortgage of $260,000.00.[8] You have a child together. This relationship has since ended, but you remain on good terms and remain involved in the life of your child. Your former partner demonstrated her ongoing support for you by her attendance at your plea hearing and today. In a reference tendered on your plea, your former partner states she has known you for over 20 years and considers you to be someone who is “honest, supportive and reliable”. After you moved in together, your former partner states your families blended and says you have only ever shown her and the children love and dedication.[9] Your former partner’s parents have also written a reference on your behalf in which they describe you as hardworking and pleasant.[10]

[8]Exhibit 4, NAB Mortgage documentation

[9]Exhibit 2, Reference of your former partner (undated)

[10]Exhibit 2, Reference of your former partner’s parents dated 17 March 2022.

Matters in mitigation

47Having considered the objective gravity of your offending, I turn now to discuss other matters that were raised by Counsel on your behalf in mitigation of sentence.

48First and foremost is your plea of guilty. By your plea you acknowledge responsibility for your offending and you save the court and the community the time and cost associated with a trial. There is utility in your plea that is rendered more significant given the delay to jury trials as a result of the COVID-19 pandemic. Accordingly, your plea attracts ‘an actual and palpable amelioration of your sentence’.[11]

[11]R v Worboyes [2021] VSCA 169 at [35]

49Moreover, your guilty plea has saved the victim from the ordeal of giving evidence at trial. In cases such as these, this is a significant matter. Whilst I note the plea followed a contested committal at which the complainant gave evidence, it is nonetheless appropriate to acknowledge that your plea brings finality to this matter for the victim as well.

50The question of remorse is not as straight forward. In a reference provided by a long standing friend of yours dated 18 March 2022, she states that you have assured her that you are not guilty of these offences. Otherwise, she says you are caring, honest and hardworking.[12] In your assessment for a CCO, you were assessed as presenting with “some insight” but “limited remorse”; taking responsibility for some of the offending but continuing to deny the sexual offending and unlawful assault.[13] I am unable to conclude that your plea is accompanied by genuine remorse for the full extent of your offending.

[12]Exhibit 2, Reference dated 18 March 2022.

[13]Community Correction Order Assessment Outcome Report dated 27 June 2022

51Secondly, your difficult and dysfunctional childhood attracts some moderation in the sentence I impose. Consistent with the authority in Bugmy,[14] I accept that your experience of childhood exposure to extreme violence and alcohol abuse would have an enduring impact. As the recent authority of Black re-states, childhood and adolescent disadvantage operate to reduce moral culpability for offending conduct even where there is no nexus between the childhood deprivation and the offending conduct.[15] Here, however, it is realistic to posit that your childhood experiences may provide some explanation of your ready recourse to violence, particularly when alcohol-affected, as an adult. I have taken your background of disadvantage into account in sentencing you.

[14]Bugmy v The Queen (2013) 249 CLR 571

[15]Black v The Queen [2022] VSCA 125 at [25]

52Your counsel did not submit that your moral culpability for your offending was reduced by virtue of any mental impairment and in the absence of any psychological material, there is no basis to find that any of the principles in the authority of Verdins are enlivened.

53Thirdly, it was submitted that the loss of the custody of your daughters following your arrest and remand is a form of extra-curial punishment that should be taken into account. Whilst it is unsurprising that children may be removed from the care of a perpetrator of family violence, I accept that the loss of the day-to-day care of your two daughters would have been distressing for you, and have taken that into account.

54Finally, and perhaps most significantly, is the matter of delay. A period of 12 years has elapsed since the offending giving rise to the first charge of recklessly causing injury. The second, serious incident giving rise to Charges 2, 3 and 4 occurred in 2013, over nine years ago. The charge of sexual assault arises from events in February 2019 and the charge of making a threat to kill occurred in February 2020, following which you were remanded. You have spent over two years on bail, having been subject to strict bail conditions since April 2020.

55There has also been considerable delay associated with the procedural history of this matter. You were arrested and charged in March 2020 and a committal hearing was conducted in October 2020. Thereafter, following supplementary disclosure,  the prosecution withdrew more serious charges on 7 May 2021. The case was then listed for trial in the Warrnambool circuit in October 2021, but was not reached. In October 2021, the Court delivered an evidentiary ruling and the matter was relisted for trial in the circuit commencing March 2022. The trial was not reached again, and on 11 April 2022 the matter proceeded as a sentence indication hearing consequent upon the evidentiary ruling made by the Court in October 2021. The plea proceeded before me on 24 June 2022, more than two years after you were first charged. This is a significant delay in the conduct of these proceedings for which you bear no responsibility.

56Undue delay is relevant to sentence in a number of ways. First, I accept that having serious criminal charges hanging over your head, not knowing what may happen, is a source of additional stress. Secondly, as highlighted by your counsel, the delay in being charged with the offending from 2010 and 2013 meant that you missed the opportunity to have these matters dealt with when you were sentenced to imprisonment for other offending in 2011 and 2015. As to the benefit that has been lost by virtue of this delay, it is appropriately conceded by your counsel that you would have received a sentence of imprisonment on these charges, although one moderated by the sentencing principle of totality. Thirdly, a period of delay may serve to demonstrate progress towards rehabilitation.

57Here, following your remand in custody, you were granted bail on 27 April 2020. Your period of 42 days on remand ran parallel to restrictions imposed in custody to respond to the pandemic. This will have made your time on remand more difficult. I accept that conditions in custody continue to be more onerous due to the impact of the pandemic and have taken this into account in respect of the custodial component of your sentence.

58Since being bailed, you have complied with all conditions of bail, and have no subsequent or pending matters. You have a supportive relationship with your former partner, with whom you have a child. Together you purchased a home, where she now lives. You  have jointly serviced the mortgage on this property since 2021. You have secured and maintained full-time employment with Wheelie Waste over the past three years. A reference provided by your employer dated 20 March 2022, was tendered on your plea.[16] Your employer, who has known you for ten years, speaks highly of your work ethic, stating you have been reliable and diligent and now hold a position as lead driver on night shift. Your counsel has confirmed that your position with your employer remains open to you.

[16]Exhibit 2 – Reference from Wheelie Waste dated 20 March 2022

59I accept that you have family and other support available to you, and that you are well-regarded and valued by your current employer. Consistent with your ability to maintain this employment is the fact that, since your release from custody in 2015, you have substantially reduced your alcohol consumption, advising Corrections that your work on night shift means that you only consume a few cans of beer each month.

60Each of these factors speak positively of your prospects into the future. However, given the serious nature and duration of your offending conduct, coupled with your relevant prior criminal history, I do not accept the submission made on your behalf that you have excellent rehabilitation prospects. I consider it important that you undertake and complete a Men’s Behavioural Change Program and any other programs recommended by Community Corrections to address the risk of future family violence and to develop insight into your offending behaviours.

61Presently, I assess you to have reasonably good prospects into the future. A sentence that fosters and promotes your future prospects, notably given your positive progress in the two years since being bailed, is important. Specific deterrence still has a role to play in sentencing you, but I consider that your improved prospects of rehabilitation now means this factor carries less weight than the need for the sentence to operate as a general deterrent.

Other sentencing considerations

62I now turn to other relevant sentencing considerations.

63I have had regard to the purposes of imposing sentence as set out in s 5 of the Sentencing Act 1991. In a case such as this, the most significant sentencing considerations are those of general deterrence, just punishment, denunciation and community protection. In sentencing you, I must deter others from engaging in physical acts of violence and repeated threats of violence directed towards their domestic partners. Such offending must be clearly denounced by the courts.

64I have also had regard to s 5(3) of the Sentencing Act 1991 which provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”.

65Neither counsel referred me to any authorities as informing current sentencing practice for these offences.  Assessing current sentencing practices is always more difficult where, as here, the offending  incidents span the period of a decade. As stated, I have had regard to the authorities which highlight the need for sentences to deter others from committing acts of family violence, given its prevalence. That said, every case must turn on its own facts.

66On your behalf, Mr Fitzpatrick submitted that no further time in custody was warranted and that the relevant sentencing considerations could be meet by the imposition of a community correction order. I rejected that submission at the sentence indication hearing given my assessment of the objective gravity of the offending, and its duration. However, I indicated that all of the relevant sentencing considerations could be reflected in a sentence of imprisonment combined with an appropriately tailored community correction order pursuant to s 44 of the Sentencing Act 1991. I consider such a disposition meets the need for the sentence to operate as both a general and specific deterrent, whilst recognising the various matters in mitigation, most particularly your plea, the impact of delay and my assessment of your more favourable prospects of rehabilitation. You have been assessed as suitable for such an order and have consented to it being made.

Sentence

67Balancing each of the matters to which I have referred, whilst having regard to the maximum penalty fixed for each of the offences, I now sentence you as follows:

68On Charge 1, recklessly causing injury, you are convicted and sentenced to five months’ imprisonment.

69On Charge 2, conduct endangering serious injury, you are convicted and sentenced to 8 months’ imprisonment. This is the base sentence.

70On Charge 3, recklessly causing injury, you are convicted and sentenced to 8 months’ imprisonment.

71On Charge 4, make threat to kill, you are convicted and sentenced to 10 months’ imprisonment.

72On Charge 5, sexual assault, you are convicted and sentenced to 4 months’ imprisonment.

73On Charge 6, make threat to kill, you are convicted and sentenced to 10 months’ imprisonment.

74On the summary offence of unlawful assault, you are convicted and sentenced to 1 month imprisonment.

75It is appropriate that there be some cumulation, reflecting the separate incidents whilst having regard to the sentencing principle of totality. I also have regard to the fact that Charges 2 and 3 relate to a course of conduct forming part of the one incident.  I order that one month of the sentence on Charge 1, one month of the sentence imposed on Charge 3, one month of the sentence imposed on Charge 5 and one month of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 2 and upon one another.

76This gives a total effective sentence of 12 months’ imprisonment. Pursuant to section 18 of the Sentencing Act 1991 I declare 42 days as having been already served by way of pre-sentence detention.

77Pursuant to s 44 of the Sentencing Act 1991, in addition to the sentences of imprisonment, in relation to all of the charges save for the summary offence, I order that you undergo and complete a Community Correction Order upon your release from prison, to operate for a period of 2 years subject to the following conditions:

(a)   that you be supervised, monitored and managed as directed by the Secretary;

(b)   that you undergo alcohol treatment and rehabilitation programs for which you are assessed as suitable; and

(c)   that you undertake treatment and rehabilitation programs aimed at addressing your offending behaviour.

78In addition to the conditions I have imposed there are standard conditions. First, and foremost you must not commit any other offences punishable by imprisonment during the two year order.  You must report within two working days of your release to the nearest community corrections office.  You are required to advise your supervising corrections office of any change of your residential or work address and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising corrections office.

79I indicated that you are entitled to a sentencing benefit for your plea. Pursuant to s 6AAA of the Sentencing Act 1991,  I declare that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a total effective sentence of three years’ imprisonment a non-parole period of 1 year, 9 months.