Director of Public Prosecutions v Kerbage

[2017] VCC 1311

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01643

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMMY KERBAGE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2017
DATE OF SENTENCE:	12 September 2017
CASE MAY BE CITED AS:	DPP v Kerbage
MEDIUM NEUTRAL CITATION:	[2017] VCC

REASONS FOR SENTENCE
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Subject:  Making a threat to kill,
Catchwords:  Intentionally causing injury.
Legislation Cited:
Cases Cited:
Sentence:  Two and a half years' imprisonment with a 20 month
  non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee
For the Accused	Ms O. Thompson

HIS HONOUR: 

1Sammy Kerbage, you have pleaded guilty to one charge of making a threat to kill, one charge of intentionally causing injury and one charge of theft.  For each of these offences the maximum penalty is imprisonment for ten years.

2The victim in each of these offences was your former partner, with whom you share a child.  The prosecution did not file a victim impact statement.

3The circumstances of your offending are contained in a written opening that was exhibited on the plea as Exhibit A.  It was read in open court by the prosecutor, Mr Lee, and accepted by your counsel, Ms Thompson, as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary that I repeat what is therein contained, except in a summary way.

4On the morning of 2 June 2016, you attended at the residence of your former partner to say "happy birthday" to your son.  You soon after became abusive towards your former partner and locked yourself in the bathroom.  Your partner took your child and other children to a neighbouring house and when she returned to her residence, you verbally abused her, which escalated into you standing over her, pushing her and threatening to stab and kill her.  The victim feared for her safety and attempted to escape, whereupon you grabbed hold of her and threw her into a bookshelf.  You then struck her to the head with your clenched fist, while holding a steel multi tool.  This blow fractured the victim’s eye socket and caused bruising and a laceration over her right eyebrow and
a blackened eye.  You took her purse containing $240 and her spare house keys.  She was later diagnosed at the Frankston Hospital as suffering from
a fractured skull.

5This offending is very serious.  Domestic violence by men against women will not be tolerated.  Any sentence must properly reflect deterrence, both general and in your case, specific and must appropriately denounce your offending and must also impose a measure of protection of the community from you, just punishment and have regard to your prospects for rehabilitation, which I assess as extremely poor, having regard to your prior criminal history.

6When you pleaded guilty, you also admitted a lengthy criminal history from 16 previous court appearances, commencing in September 2000, when you were aged 25 years.  You are now aged 42 and you were aged 41 at the time of this offending.  You have numerous prior convictions for violence including assault, intentionally and recklessly causing injury, robbery, aggravated burglary, making threat to kill, false imprisonment and breach of an intervention orders, threat to inflict serious injury, as well as numerous dishonesty, driving and drug offences and damaging property.

7I concluded that you are a man, who over a long period, has been given to act in anger.  I was told and accept that the victim in a number of your prior convictions was your own mother.

8You were charged with this offending on 17 October 2016 and it is agreed that as at the time of the plea, you had served 125 days pre-sentence detention in respect of these matters.  You have also been in custody on other unrelated charges.

9The charges resolved into a guilty plea at a committal case conference on
26 July 2017.  I treat you as having indicated that you would plead guilty at the earliest opportunity.  By your guilty pleas, you have saved the time and cost of a trial and importantly, you have saved the victim from having to give evidence against you and having to re-live these events whilst being cross examined by your counsel.  I also treat your pleas of guilty as indicative of genuine remorse on your part for your actions.

10Because you pleaded guilty at the earliest opportunity, you are entitled to
a reduction in sentence and this will be reflected in the sentence that I shall shortly pass.

11Your counsel filed a helpful written outline of argument, which I marked as Exhibit 1 on the plea.  She also relied upon a psychological report prepared by Mr Cummins for an earlier court appearance, dated 15 April 2015, Exhibit 2.

12Ms Thompson told me that you acknowledge your wrongdoing and that you are working towards rekindling your relationship with the victim, albeit not romantically, but for the sake of your child.  You apparently desire to be involved in his life.  That is understandable and I accept that to be the case.

13I turn to matters related to your background.  You are aged 41.  You were born in Australia of Lebanese parents.  The family returned to Lebanon when you were aged two years.  You are the third child and you have three siblings. 
I was told, whilst in Lebanon, the conditions in which the family lived were deprived of basic necessities and you heard the sounds of bombs and shooting.  You wanted to learn English, but Arabic was the first language of the home.

14Your family returned to Australia when you were aged 15.  Your father died six years ago.  Your mother is retired, aged 67.  I was told your parents had an acrimonious relationship which was violent and abusive.  I was told you have
a love/hate relationship with your mother, who does not approve of your drug use.  That is perfectly understandable.  In the past, she had to obtain an intervention order against you.

15You attended school in Lebanon until age 15.  Your schooling was in Arabic.  You completed Year 12 in Victoria and commenced a Social Science degree at La Trobe University, but left after the first year.  You worked in a family milk bar business until aged 25 and then you operated your own pizza business in Hastings, between ages 28 to 31.  After selling that business, you worked in housing construction and repair work and had a casual job in a pizza shop before your remand.

16You have a long history of drug use.  At the time you were remanded, you had an ice habit, costing $200 to $300 per day.  You are now on the methadone program whilst in custody.  I was told and accept you are drug-free in a custodial setting and you have completed drug-related programs whilst in custody.  You are prescribed Avanza for anxiety and depression.

17Mr Cummins previously opined you suffer from drug dependency, depression and anxiety and anger management problems.  There was no suggestion that there are any Verdins issues at play in arriving at an appropriate sentence for you.

18Your counsel submitted that I should impose a term of imprisonment of not more than one year and also a community corrections order, with conditions designed to assist you to overcome your drug dependency and mental health and anger management problems.  Ms Thompson submitted that you have received
a number of sentences of imprisonment, but never a community-based disposition.

19Surprisingly to me, the prosecutor submitted that the disposition sought by
Ms Thompson was within the appropriate sentencing range.  I do not accept either of these submissions.  Your offending was very violent, directed towards and injuring a defenceless woman.  It can only have been a very frightening experience for her, taking place as it did, only a short time after she removed children from the home in anticipation of your pending violence.  The offending occurred in the context where you have numerous prior convictions for violence over a period of 15 or 16 years.  True it is you have not received a community- based disposition previously, but you have received suspended sentences and these have not stopped you.

20I have formed the view that a combination of imprisonment and a community corrections order here is inappropriate.  It would not properly address the purposes of sentencing in this case, which must be for the sentence to properly address deterrence, both general and specific, denunciation and protection of the public and just punishment.  Your drug addiction and your problems with anger management help to explain your offending, but they do not excuse it.

21On Charge 1, make threat to kill, you are convicted and sentenced to a term of imprisonment of one year.

22On charge 2, intentionally cause injury, you are convicted and sentenced to
a term of imprisonment of two years.

23On charge 3, theft, you are convicted and sentenced to a term of imprisonment of one month.

24I direct that six months of the sentence imposed on Charge 1, cumulate upon the sentence imposed on Charge 2, making a total effective term of imprisonment of two and a half years.  I direct that you serve a minimum term of 20 months' imprisonment before you are eligible for release on parole.

25I declare there has been 133 days pre-sentence detention under the sentences passed this day and that 133 days pre-sentence detention be entered into the records of the court and be deducted administratively.

26For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of four years and I would have imposed a non-parole period of 32 months.

27I have been asked to make an order under s.464ZF of the Crimes Act 1958. For the reasons stated in the order, I have signed it, which means that whilst in custody, a police officer may take a forensic sample from your body in the form of a swab from your mouth.

28Any questions arising out of that? 

29COUNSEL:  No, Your Honour.

30HIS HONOUR:  Very well, thank you.  Would you remove Mr Kerbage please. 

31OFFENDER:  Your Honour, can I say something? 

32HIS HONOUR:  Mr Kerbage, Ms Thompson will speak to you later.

33MS THOMPSON:  I will speak to him, Your Honour. 

34HIS HONOUR:  Thank you.  Feel free to leave, Ms Thompson.  Mr Lee, thank you.

35MR LEE:  Thank you, Your Honour, may I be excused? 

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