Director of Public Prosecutions v Holmes

[2023] VCC 1679

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00494

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART HENRY HOLMES

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2023 (Horsham)
DATE OF SENTENCE:	15 September 2023
CASE MAY BE CITED AS:	DPP v Holmes
MEDIUM NEUTRAL CITATION:	[2023] VCC 1679

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Plea of guilty – aggravated burglary – intentionally cause injury – persistent breach of family violence intervention order – drive while disqualified – trespass – person present – use of weapon – efforts towards rehabilitation in custody – good prospects of rehabilitation

Cases Cited:Boulton v The Queen (2014) 46 VR 308

Sentence:                  428 days’ imprisonment, 18-month Community Correction Order

s6AAA – Total effective sentence of 4 years’ imprisonment, non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty (Plea) Mr A. McCowan (Sentence)	Office of Public Prosecutions
For the Accused	Ms J. Ball	Adrian Paull Criminal Lawyers

HER HONOUR:

1Stuart Holmes, on 28 June 2023 at Horsham County Court you pleaded guilty on indictment N11476235.1 to 3 charges of persistent contravention of family violence intervention order, 1 charge of aggravated burglary and 1 charge of intentionally cause injury. In addition, you agreed to two related summary offences being dealt with by this court; Charge 5, drive whilst authorisation suspended and Charge 39, without authority or excuse enter private place – commonly known as trespass. You pleaded guilty to those two charges.

2After hearing a comprehensive plea made on your behalf, I adjourned your matter and ordered an extended pre-sentence report from Corrections to explore your suitability for a Community Correction Order. I have received a very thorough report from Corrections, and I can indicate you have been assessed as suitable for such an Order.

Circumstances of the offending

3The agreed factual basis upon which you are to be sentenced is documented in the Summary of Prosecution Opening that was tendered and marked Exhibit A on your plea. What follows is a summary of that.

4At the time of your offending, you were 43 years old. You had been released from gaol on 1 July 2022. You had no home to go to and no real plan on where to settle in the community. Previously, you had been in an intimate relationship with Erin Hamilton. There were considerable issues within this relationship and a Final Family Violence Intervention Order was made on 20 July 2021 at Horsham Magistrates’ Court. Amongst other things, the Order prevented you from having contact with Ms Hamilton for a period of 12 months.

5In contravention of this Order and whilst you were in custody, your Corrections call record history revealed that you contacted Ms Hamilton on numerous occasions, as now detailed.

6Between 22 April 2022 and 16 May 2022 you called Ms Hamilton via telephone 12 times, (Charge 1 - persistent contravention of a family violence intervention order).

7Between 23 May 2022 and 9 June 2022 you called Ms Hamilton via telephone 4 times, (Charge 2 - persistent contravention of a family violence intervention order).

8Between 21 June 2022 and 12 July 2022, you called Ms Hamilton via telephone 101 times. Upon your release from custody, Ms Hamilton contacted you via telephone a further 58 times, (Charge 3 - persistent contravention of a family violence intervention order).

9In addition, there were two occasions on 7 July 2022 and 14 July 2022, where you were within 5 meters of Ms Hamilton in contravention of the Order. On the first of these dates, you drove Ms Hamilton to a property in Kiata where the victim, Peter Keogh, lived. Ms Hamilton had previously been in a 6-week intimate relationship with Mr Keogh. That relationship had ended in late June about 2 weeks prior to 7 July. Whilst together with Mr Keogh, Ms Hamilton had purchased a television. She had left this television with Mr Keogh after they broke up.

10The purpose of your visit to Mr Keogh was seemingly to recover the television for Ms Hamilton. Together, you and Ms Hamilton arrived at the Kiata property at about 3.30 am. Mr Keogh was asleep in his bedroom. You drove to the rear of Mr Keogh's residence and then did a U-turn and parked your car approximately 5 metres from the front door. You got out of the car and entered the lounge room area, and then Mr Keogh's bedroom. (Related Summary Offence Charge 39 – trespass).

11Mr Keogh pretended to be asleep but was able to see you in his bedroom. You walked to where the television was on top of a cupboard and removed it. You then left the residence and put the television on the backseat of your car.

12You then got a 37 cm long piece of timber from the boot of your car. With the timber weapon in your hand, you went back inside Mr Keogh's residence (Charge 4 - aggravated burglary). Mr Keogh sat up and saw you. You yelled at him ‘You wanna go cunt’ and as Mr Keogh moved to get out of his bed, you swung the timber weapon down and hit Mr Keogh on the top of his head, causing immediate pain and bleeding (Charge 5 – causing injury intentionally).

13Mr Keogh told you to ‘Fuck off’ and you left, dropping the timber weapon and your hat on the floor. You got back in your car and drove away. The entire offending took one and a half minutes. Mr Keogh went after you but by the time he got to the front door you had driven away. From the sound of the exhaust, Mr Keogh thought the car was Ms Hamilton's Ford Falcon, as he had travelled in and worked on the vehicle previously.

14At the time of this incident, your driver's licence was disqualified (Related Summary Offence Charge 5 – driving while disqualified).

15As a result of the assault, Mr Keogh had blood on his face and required medical attention. At 3.38 am, Mr Keogh contacted Aaron McCartney, who also lives on the Kiata property.

16Mr McCartney drove Mr Keogh to Nhill Hospital. There, Mr Keogh presented with a 7 centimetre laceration on the top of his skull. The laceration was cleaned, and Steri Strips and dressing were applied. Mr Keogh was provided 1 gram of Paracetamol for the pain and advised he needed to attend Wimmera Base Hospital in Horsham to have the laceration sutured.

17Mr Keogh attended Wimmera Base Hospital and was treated at 3:15 pm by Dr Matthew Oates, who observed a large laceration to the top of Mr Keogh's skull 'with deep ligaments on view'. Mr Keogh's injury required 10 large stiches. He also received a tetanus injection to avoid any infection.

Arrest and interview

18On 8 July 2022, Mr Keogh reported the matter to the police. You were arrested on Thursday morning, 14 July 2022, in Warracknabeal. You were sleeping inside your car, which was parked with the engine running. Ms Hamilton was in the front passenger side of the car.

19You were taken to Horsham police station, where you were interviewed by the police. You denied all allegations in relation to the offending at the Kiata property and advised police you had been at the White Hart Hotel at the time of the offending. You admitted ownership of the Ford Falcon but told the police it had been parked at Ms Hamilton’s mother's address on the night of the offending.

20You were charged and remanded in custody on 14 July 2022. You have remained in custody since that time and have now served 428 days (which is 1 year and 2 months) on remand.  So, 14 months on remand.

Victim impact statement

21The victim impact statement of Peter Keogh was read and tendered at your plea. Mr Keogh described the fear he felt at the time of the incident, thinking that it would be his last day. The stitches Mr Keogh required served as a constant reminder of the incident. Mr Keogh described how he continued to be fearful in his home, that he did not sleep or eat properly, and how he has now moved.

22Mr Keogh lost income due to being unable to work and became homeless as a result. He continues to be isolated because of the impact of your offending.

23I have taken into account the victim impact statement of Mr Keogh in the sentence I will impose.

Nature and gravity of offending

24In determining the gravity of your offending, I have had regard to the maximum penalties for each of the offences, that is 25 years for aggravated burglary, 10 years for intentionally cause injury, 5 years for persistent contravention of a family violence intervention order, 2 years’ imprisonment or 240 penalty units for the driving whilst disqualified charge and 6 months’ imprisonment or 25 penalty units for the offence of trespass.  The maximum penalty of an offence is the yardstick set by Parliament and the starting point when considering objective seriousness.

25You went to Mr Keogh's home in the early hours of the morning seemingly to recover a television purchased by Ms Hamilton. You had been told by Ms Hamilton that she had been assaulted by Mr Keogh, which no doubt had made you angry. You entered Mr Keogh's premises and took the television but then armed yourself and returned to assault him. I accept that the piece of wood that you used was a makeshift weapon that was to hand in your vehicle. Nonetheless, you used the weapon to cause significant damage to Mr Keogh who was defenceless and as far as you were aware, sleeping. You hit Mr Keogh to his head which is a vulnerable region of the body.

26The prosecution submitted that in assessing the gravity of your offending I should take into account that the aggravated burglary occurred in the early hours of the morning and in a remote and isolated location. In addition, you offended within weeks of being released from prison.

27Your counsel conceded your offending was serious but submitted several factors combined to reduce the gravity of your offending. These factors include that you entered alone, through an unlocked door, your offending was of a very short duration, it was not premeditated, and your attack consisted of a single strike. Further your counsel submitted that your offending was partly motivated by bruises you observed on Ms Hamilton, and you hit Mr Keogh as a form of impulsive revenge.

28Although your breaches of intervention order were persistent, protracted and occurred partly whilst you were serving a sentence for the very offence you committed, I consider them to fall towards the lower end of seriousness, as submitted by your counsel. I agree with her description of your offending as consisting of phone contact that was not accompanied by threat, was not intimidating or demeaning, and was reciprocated by Ms Hamilton, the victim of this aspect of your offending.

Plea of guilty

29In terms of matters in mitigation, I accept your plea of guilty, although entered after several mentions, was entered at an early stage. I note, as submitted by your counsel, there was a delay in this matter caused by the provision of prison call recordings, and you had indicated your intention to plead guilty at the earliest opportunity. Your plea has a significant utilitarian value, in that you have spared the victim the need to give evidence and you have spared the court the time and expense of a trial. 

30I agree with the submission of your counsel that a plea of guilty in this period post- pandemic should attract a more pronounced amelioration of sentence than at another time, due to the crippling backlog of cases before the court. In the circumstances, I have given you a significant sentencing discount for your plea of guilty.

31Further, your plea of guilty is demonstrative of remorse and your willingness to facilitate the course of justice. Importantly, it shows that you have accepted responsibility for your offending. In addition, I note your expressions of regret to Ms Lechner, the psychologist who assessed you for the purpose of the plea and also to the assessing officer from Corrections who prepared the extended pre‑sentence report. I accept you have genuine remorse.

32I accept that a further impact of the COVID-19 pandemic in your case was that your time in custody on remand has been served amidst lockdowns and quarantines. Notwithstanding the difficult conditions, you have undertaken an impressive array of programs, courses and work whilst in custody. Your commitment to your reform has been recognised by the prison authorities and you have been trained and entrusted with the role of a peer listener. I will return to these matters shortly.

Personal circumstances

33You were born and raised in Shepparton. You are the only child of Sally and Stuart Holmes Senior and are of Māori heritage through your father. You reported to psychologist Carla Lechner that your biological father left your family when you were about 5 years old, after which time you had very limited contact with him, mainly due to his issues with drugs and alcohol.

34Your mother re-partnered with Jim Butler, who had two older children from a previous relationship. Your mother and Mr Butler had a child together, your half‑sister, Raina.

35You lived in fear of your stepfather, who would get drunk and terrorise you when your mother was out of the house. Your worst memory was around Christmas time when you were aged 12 and you were punched by your stepfather. You also suffered similar bullying and abuse from one of Mr Butler's older daughters.

36You were very close with your mother, who passed away in 2002 from pancreatic cancer. You remain close to your sister Raina, who has been supportive of you throughout these court proceedings.

37Your time in education, so your secondary schooling, was made difficult as you were the victim of bullying from classmates, specifically around and because of your hand-me down clothing. As a result, you regularly hung out around a service station behind your house, where you became friendly with some of the mechanics.

38You were expelled from school at the end of Year 8 due to poor behaviour, and after this worked as the workshop cleaner for a local mechanic on and off for a couple of years.

39When you were in your late teens, you had a falling out with your mother, who told you that you could no longer live with her. You felt abandoned by your mother when this happened. You went to Queensland to live with your biological father. However, this was short lived as your father ended up in prison.

40You then returned to Victoria, where you worked at a local service station for 5-6 years. Since then, you have worked at a variety of jobs, most recently with a recycling company. Since leaving school, you estimate that you have been employed about 40 per cent of the time. You are keen to work in either traffic management or as a stable hand upon your release.

41In terms of your relationship history, you were in a relatively stable long-term relationship with Ms Kate Perri, with whom you have two children, Christian and Tyrone. This relationship broke down as a result of your drug use. Your subsequent relationships, including that with Ms Hamilton, have been drug-fuelled and toxic.

42Your current relationship, with Ms Valerie Gosney, commenced during this period of custody, and you have described the profoundly positive and pro-social impact this relationship has had on you. This relationship has given you hope for a brighter future, and you intend to reside with Ms Gosney upon release. Ms Gosney does not engage in any drug use and has been a positive influence in this regard.

43During this current period in custody, you have also worked to re-establish your relationships with your sister, your sons, and your father. You are in bi‑weekly contact with your eldest son, Christian, and hope that your continued sobriety and stability will give you the best opportunity to reconnect with your youngest son, Tyrone.

44Your father, now in his 70s, has become progressively unwell over the past couple of years, and now requires full-time care. Accordingly, you and Ms Gosney have been in the process of applying for funding and other supports to provide home care to your father.

45In terms of drug use, you began at age 14 with smoking cannabis, however, it made you feel uneasy, so you rarely smoked. You have continued to engage in drug use since this time, using speed in your late 20s, before switching to ice in your 30s. Your ice use peaked at ages 32-34, when you were smoking 2 grams a day.

46You have also used Xanax, Valium, and Karma. Ms Lechner noted that you present with symptoms of Stimulant Use Disorder, which is in early remission due to your sobriety whilst in custody.

Mental Health

47In her report dated 17 May 2023, Ms Lechner describes your upbringing as follows:

'An only child with a younger half-sister, Mr Holmes reports that his parents separated when he was aged about five years, after which he had very limited contact with his father. His mother re-partnered a violent and abusive man who appeared to single Mr Holmes out for physical punishment. He therefore felt rejected by his own father and unloved by his substitute father. In addition, he experienced some bullying at school, this leading to chronically low self-esteem and social anxiety that has persisted, to a degree, to the current time'.

48Your counsel submitted that your experience of childhood deprivation and abuse gives rise to the Bugmy principles. In my view, what you have experienced does not reach the level of profound deprivation and abuse that is required to invoke such principles. I do, however, take into account by way of mitigation in a more general way, your childhood and life experiences and the impact they have had upon you throughout your life. I accept the opinion of Ms Lechner that you continue to suffer low self-esteem and social anxiety.

49Ms Lechner considers that you evidence mild symptoms of Post Traumatic Stress Disorder and you reported to her long term symptoms of depression and anxiety that related to past experiences of trauma.

Prior History

50Your criminal history started in 2014 and is extensive, having been brought before the courts 15 times in 9 years. You have been sentenced to imprisonment a number of times, which you attribute to your home life going 'pear-shaped' when you started to use drugs. You have been in and out of gaol several times and have been unable to sustain significant change.

51It appears however, that this recent time in custody appears to have had a more significant impact on you and promoted more positive change. As submitted by your counsel, Ms Ball, you have undertaken a large number of programs whilst in custody to address your needs. You told the author of the Corrections pre‑sentence report that this is the first time you have completed such courses. More importantly, the assessor noted that you spoke positively of these interventions and the information that you had learned from them.

52Unlike the last occasion you were released from custody, you are now able to identify protective factors that you hope will assist you with your reform in the community. These include having a home with Ms Gosney, your motivation to lead a pro-social life, the education you have received this time in custody, and the support from Ms Gosney.

53Also submitted by Ms Ball was the relevance of your role as peer listener within the prison, which is considered a position for a trusted inmate. In this role you assist prisoners who are struggling, and advocate on their behalf within the prison administration for improved conditions. This role has been very fulfilling and instilled within you a sense of pride in your work.

Prospects of rehabilitation

54Ms Ball submitted that your prospects for rehabilitation are not beyond hope and that rehabilitation from addiction is not linear. Ms Ball noted specifically your previous 4-year gap in offending which coincided with the longest period of sobriety in your life. This, Ms Ball submitted, demonstrates your capacity to lead a productive life.

55Ms Ball also pointed to a number of protective factors that you have established during this current period of remand. One of these being the reconnection and rebuilding of relationships, namely with your sister, father, and son.

56You also have the stable, drug-free relationship with Ms Gosney, and have established a close relationship with her young son. You have had regular videolinks with Ms Gosney and her son whilst on remand. Importantly, you have a stable accommodation to live in upon your release.

57Ms Ball also informed the Court that you have potential employment lined up upon release and can be supported by ACSO ReStart. You have accepted that your relationship with Ms Hamilton is finished, and you have no intentions to return to the Horsham area.

58The prosecution submitted that your prospects for rehabilitation must be considered as guarded. To this point, the prosecution submitted that this offending occurred very shortly after your release, and you have had similar opportunities at rehabilitation previously which have not been successful. The prosecution also referred to the untested nature of your relationship with Ms Gosney.

59Your commitment and the volume of courses and work you have done to reform whilst in custody is quite exceptional. You have a home to come out to and a loving relationship with a woman who is not caught up in the criminal and drug using world. With supports and supervision, I consider you to have positive prospects of rehabilitation.

Sentencing principles

60The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

61General deterrence remains the primary purpose of sentencing in this case given the seriousness of your offending and its connection to family violence. The weight however to be given to specific deterrence should be moderated in light of your experiences in custody. In your case, I regard protection of the community to be a relevant consideration. However, I consider this will be best achieved by your rehabilitation through supports and interventions to address any ongoing issues you have and to prevent any relapse into drug use.  In your case, this is what will reduce the risk of future offending.

62I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.  In particular, I have had regard to the sentencing landscape for the offending before me, particularly the aggravated burglary.  Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

63The principles of totality, proportionality and parsimony are also very important considerations here. They require me to make sure the total sentence is appropriate for the total criminality. I have taken these principles into account in fixing the individual sentence and the structure of the sentence I will now impose.

64Weighing up all relevant matters I consider that a further sentence of imprisonment is not required in the circumstances of your case and the sentencing factors of general deterrence, just punishment and denunciation can be addressed by the imposition of a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen, that is, a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[1]

[1]        Boulton v The Queen (2014) 46 VR 308

Disposition

65Mr Holmes, in relation to the charges before the court you are convicted. In relation to Charge 4 of aggravated burglary you are sentenced to 428 days' imprisonment, and I declare that this time has been served by way of pre-sentence detention.

66In relation to the remaining charges, that is Charges 1, 2, 3 and 5, I order you be placed on a Community Correction Order for a period of 18 months.  The conditions of this Community Correction Order include that you must:

(a)   Perform 150 hours of unpaid community work over 18 months;

(b)   Submit for assessment and treatment for mental health;

(c)   Submit for assessment and treatment for drug abuse;

(d)   Attend for supervision;

(e)   Complete offending behaviour programs

(f)    I am also going order a condition  for judicial monitoring, so I want you to come back and see me, and we will set a time, probably about three months' time, because I want to see how you are going.  See if you have been able to maintain, , the wonderful reformation that you have commenced.

67I am also going to offset 75 hours of community work against the treatment.  That is an incentive to engage in the treatment that is offered to you.  So rather than 150 hours, if you were to do say 75 hours of treatment, it will reduce your community work hours by that amount.

68In addition to the conditions that I have imposed, there are standard conditions that you must comply with, and you might know these already from your past experience, but I need to explain them.  Most important is that you do not commit another offence punishable by imprisonment within the period of the Order, so that is for the next 18-months, okay.  You need to report within two working days to your nearest Corrections office.  I understand once you are relocated that will be Reservoir Corrections.  I daresay you will be released today, so it will be within two working days.

69You are required to advise your supervising Corrections office of any change of address of where you are living or working within two clear working days.  And it is a term of all Community Correction Orders that you must submit to visits as directed, obey the instructions and directions of the Corrections officers, and also you cannot leave the state of Victoria without their prior permission.

70So Mr Holmes, if you reoffend you will breach the Order, and if you do not comply with the conditions you will breach the Order.  If you do breach, you come back before me and then you may be resentenced for the original charges, okay.

71I can only place you on a Correction Order if you agree so firstly, do you understand what is involved in the Order?

72OFFENDER:  Yes, I do, Your Honour.

73HER HONOUR:  Okay.  And do you consent to the Order?

74OFFENDER:  Yes, I do, Your Honour.

75HER HONOUR:  Okay, all right.

76Pursuant to 6AAA of the Sentencing Act but for your plea of guilty I would have imposed a total effective sentence of 4 years with a non-parole period of 2 years 6 months. 

77All right, so in three months' time, I will get you to come back just before Christmas, I think.

78We'll do 14 December and I'll make it for 9.30.

79HER HONOUR:  Okay, that's good.  All right, so we'll draft up the order and you've given a consent on the link.  So I don't need to get you to sign it by sending it to the prison.

80OFFENDER:  Sure.

81MR McCOWAN:  Your Honour, there was a disposal order sought.

82HER HONOUR:  Yes.  I will make the disposal order

83MR McCOWAN:  And just enquiring whether Your Honour wished to make any order against Mr Holmes' licence, it should be discretionary.

84HER HONOUR:  On the driving whilst disqualified.

85MR McCOWAN:  Yes, Your Honour.

86HER HONOUR:  I don't think I will, Mr Holmes.  I think it's important that you have a licence and that you can, demonstrate that you can do the right thing and be law abiding.  And it will be important for you to be able to get around with the responsibilities that you have got in keeping the Corrections Order.

87OFFENDER:  Yes.

88HER HONOUR:  So I don't know what the status of your licence is at the moment.  I'll leave that for you and Ms Ball to check into.  It mightn't be a bad idea to check with VicRoads and make sure you're good to go before jumping in a car.

89OFFENDER:  Yes.

90HER HONOUR:  All right.  Thanks very much to counsel.  Thanks very much, Ms Ball, for your fabulous submissions, they were very thorough.  And good luck, Mr Holmes. 

91OFFENDER:  Thank you, Your Honour.

92HER HONOUR:  I am really hoping that you can make some sustained change.

93OFFENDER:  Yes. I have every intention of it.

94HER HONOUR:  All right, I'll see you in December.

95OFFENDER:  Thank you, Ms Ball.

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