Director of Public Prosecutions v Kerrison

[2022] VCC 45

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 19-00811

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHERRY KERRISON

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2022
DATE OF SENTENCE:	28 January 2022
CASE MAY BE CITED AS:	DPP v KERRISON
MEDIUM NEUTRAL CITATION:	[2022] VCC 45

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik
For the Accused	Mr R. Thyssen

HIS HONOUR: 

1Sherry Kerrison, you have pleaded guilty to two charges of common law assault, maximum penalty five years' imprisonment, and one charge of attempting to pervert the course of justice, maximum penalty 25 years' imprisonment.

2The circumstances of the offending were outlined in the prosecution opening which was read in open court earlier in the week and which I incorporate by reference.  The offending took place on 6 August 2018 in relation to the first two counts.  Your offending involved offending against a person, Ms Ireland, with whom you had been acquainted for some 13 or so years and you were involved in the offending with your then partner, Mr Bietman, who had a significant prior criminal record and a difficult background as set out in the sentencing reasons of Judge McInerney dated 9 June 2020 that were provided to me. 

3In essence, the offending arose when the two of you attended at the home of the first complainant, Ms Ireland, with Mr Bietman, at her then address in the Old Sale Road, Newborough.  She was there with her teenaged daughters and her son.  You had attended the premises on prior occasions and she had known Mr Bietman for about four months.  On that occasion you were attending in order to assist with some repairs to the property as she was vacating the property.  At the time Ms Ireland had two other friends there, including the second complainant, Ms Vandeburt as well as a number of other teenaged children. 

4One of the individuals there was a Mr Hope, then aged 18.  You had an animus against him as you alleged that some years ago he had stolen your car with all your Christmas presents in it.  You remonstrated with Ms Ireland, asking, 'Why do you have that fucking dog in your house?  His name is Lance Hope.  He is the dog who stole my car a few years ago with all the Christmas presents in it'.  At that point, Mr Bietman went into the room where Mr Hope was playing an Xbox and a fight ensued.  You were assisting Mr Bietman to wrestle Mr Hope.  This caused minor injuries to Mr Bietman's hands and face.  Mr Hope broke free and left the house.  You remained in the house and continued to yell at
Ms Ireland.  Mr Bietman then procured a knife from the kitchen.  At that point only Ms Ireland, you, Mr Bietman, and Ms Vandeburt were in the house.  Another individual who was there had left with the children and taken them into the backyard.

5Ms Vandeburt, the second complainant, was at the front door and you started chesting her.  You stated that you were angry with her.  She evaded any physical contact with you.  Ms Ireland started walking towards the door but she could not leave because you along with Mr Bietman followed her.  You started pushing her down the hall of her own house towards the bedroom, preventing her from leaving the house.  This constituted common assault, Charge 1. 

6Mr Bietman was waving the knife around at the time and saying that Ms Ireland was going to get evicted because she had been raided.  She was pushed into a bedroom.  Mr Bietman continued to wave the knife around and yell.  Ms Ireland was scared.  Ms Vandenberg went to Ms Ireland's door.  She heard Ms Ireland screaming.  Ms Ireland ran back into the lounge room and sat on the couch with Ms Vandeburt.  Mr Bietman continued to yell and wave the knife around.  The police had been called and at that point you and Mr Bietman left the house, stating that you would be back.  Ms Ireland did not make a formal report at that time as she hoped to sort it out with you the next day.

7Mr Hope returned to the house at that point.  You and Mr Bietman returned later that night and Mr Hope again left the house and at that point Ms Lammeritz, who was there at the time, took her children home in her car.  Ms Vandeburt was seeking to leave with her son.  She had left the back gate and then sought to return because she had left her purse.  As she did so, she sought to walk through the gate and you started abusing her and then headbutted her, causing her glasses to be pushed against her nose, resulting in red marks and bruising around the nose and eyes.  This constitutes the second offence of common law assault against her.

8There was then further disputation with Mr Bietman seeking out Mr Hope.  He was holding a spanner, as well as a dog on a leash.  Mr Bietman was also seeking money from Ms Ireland and she refused.  She then ran out of the house.  You followed her but stopped at a silver Camry vehicle that was parked outside and put the dog back into the vehicle.  The police then arrived.  The dog escaped and bit Ms Ireland.  This is not the subject of any charge. 

9As a result of your offending Ms Ireland suffered scratches and bite marks from the dog and was treated by an ambulance at the scene.  Ms Vandeburt suffered red marks and bruising around her nose and eye from the headbutt by you but did not see a doctor.

10You were arrested and in a record of interview you admitted that you had been at the property and there had been a fight between Mr Hope and Mr Bietman.  You denied that you hit people and also denied that he had any weapon or you had any weapon, and you asserted that you tried to break up the fight.  You had gone to her bedroom to apologise and you denied that the dog had been involved in any attack.  You were then released.

11The offending involving Charge 3, the attempt to pervert the course of justice, followed Mr Bietman being remanded in custody and engaging in phone calls with you from the prison where he asked you in relation to Ms Ireland to 'get that cunt' and 'grab her by the fucking head and make her sign' or write and sign a letter to the effect that the offending did not happen so that he could get out of custody.  You confirmed on the call that was recorded, the Arunta calls, that you would tell her to write the letter and if she does not, 'shit's going to happen'.  At the time of one of the calls Ms Ireland was at the Magistrates' Court here in the Latrobe Valley and Mr Bietman was on the phone and you then approached her and made the request.  You were also involved in sending Facebook messages to her subsequently, seeking to have her withdraw the statement.  She did not do so.

12You were further arrested on 29 November 2018 and in the record of interview disputed that you had asked her about dropping the charges.  You maintained that they were false charges and the text messages had been sent in anger.  You maintained that you had known the complainant for 15 years and you had done nothing wrong.

Seriousness of the offences

13On the plea it was common ground that the two assault charges were at the lower level of seriousness.  The injuries were minor.  Concerning, however, is that the offending did occur in the home of Ms Ireland and that they had effectively done nothing to provoke you assaulting those two women.  Further, Ms Ireland had been a friend of yours and you were the instigator of the offending from the start as you had an animus against Mr Hope.  However,
Mr Bietman fully participated and was involved in the more serious activity and he received a significant prison sentence when he pleaded guilty to other charges, including a charge of aggravated burglary that you are not facing.

14In relation to the charge of attempt to pervert the course of justice, the prosecution accepted, as it had done so before Judge McInerney, that this was not a serious example of this very serious crime.  It is clear from the Arunta calls that Mr Bietman was very assertive and domineering in his communications with you and I am prepared to accept that you were under his influence when you were involved in the conduct constituted by Charge 3.  Nevertheless, this is a serious offence, and although I have indicated the prosecution accepts that this is at the lower end of the scale, it is still serious offending.

Prior convictions

15You come before the court aged 31 with a criminal record that goes back to 2010, mostly for dishonesty offences.  For an offence of assaulting police on 24 August in 2012 and theft from a shop and failing to answer bail, you contravened a community corrections order that was imposed on you on 24/8/2012, but that was confirmed on 24/4/2013.  Your next offending was in 2013 where on two charges of theft from a shop; in 2014 another charge of theft you received a 12 month CCO in 2014 and 2015 you faced charges of shop stealing.  In 2016 send or take anything into a prison, and then your last most recent offending was on 27 March 2017, contravening a personal safety intervention order and driving whilst authorisation suspended, without conviction an aggregate sentence of $300. 

16You thus have a number of dishonesty offences of relatively lower levels of seriousness, with only one prior offence for assault which was assault police, so this is the most serious offending, and the first time you have come before a higher court, and indeed apart from the one matter dealt with in the Magistrates' Court for assaulting police, the first time you have been brought before a court for serious assault charges.

Victim impact statements

17The prosecution in this matter filed two victim impact statements.  The one from Ms Ireland indicates that this offending has had quite a significant impact on her.  She says it has changed her life dramatically.  She now has anxiety attacks and cannot breathe, she is concerned in crowds, she has lost her trust, and one of the things she mentions is she knew you and she was a family friend through her daughters.  She is 20 years older than you, and she puts the offending down in a sense to your involvement with Mr Bietman, but it has obviously had a significant impact on her.  Clearly, some of the impact has been as a result of the actions of Mr Bietman and I note that there was no victim impact statement filed when he was dealt with by Judge McInerney.  So the assault itself has had a significant impact on her, which is relevant to sentencing. 

18Similarly, in relation to Ms Vandeburt, in her victim impact statement she indicates that she was left bruised from the headbutt and she has had three lapses from her MS, which she suffers from, and she is now using a wheelchair and a walker.  It has impacted her lifestyle.  She moved from being able to support herself to now requiring rehabilitation.  Your assault on her has had an impact, and again that shows that this is significant offending.

Other matters in mitigation

19I turn now to your matters in mitigation that were put by your counsel,
Mr Thyssen, in his plea outline of submissions.  You are now, as I said, aged 31, born in this Latrobe Valley area, educated here, although you completed your final year of school in Queensland, Year 10, but both your parents, who appear to be separated, live in the area.  Your mother is in Churchill, your father resides in Moe.  You have an older sister who is unemployed.  You had a son when you were aged 21.  There was domestic violence associated with his father and the welfare were involved and he is now being looked after by your mother.

20You have had a reasonable work record, working in KFC and other casual jobs since you left school.  Then at the time of the offending you had been in this relationship with Mr Bietman which was obviously a toxic relationship, but you were also working at a potato farm.  Unfortunately, shortly before this offending you suffered a significant medical condition that was of unknown etiology, a form of palsy affecting your left arm, which you first saw doctors for about two or three months before this offending in about August of 2018.  That stopped you working and it took some time for the doctors to ascertain exactly what was the issue and then after some months it finally did resolve.  You first saw the doctor about that on 1 June 2018, which is two months before this offending, and you were referred to a neurologist and it seems that it has now resolved.

21In terms of your occupational skills, you do have two certificates that were filed in aged care and home and community care.  You have worked in that area.  At the moment you are not working in the area, or in any area, and apparently you are on some form of disability pension or a pension, but you are anxious to try and get back into working in the aged care sector.  You have been doing occasional home caring work as set out in the submission.

22The stress of this offending or these proceedings led to you suffering some form of breakdown and about a year ago you checked yourself into the Latrobe Regional Hospital for about a week.  Mr Thyssen indicated on the plea that you have recently seen a psychiatrist.  You have also been referred to, and are under continuing engagement with a local alcohol and drug counselling  service.  As a result of the breakdown of the relationship with Mr Bietman, who had been in custody and then released from custody about eight months before this offending, you have obviously had difficulty getting back into a productive relationship with someone and that is something you really need to focus on in the future, but that is a matter for you.

23In terms of other matters in mitigation: Mr Thyssen mentioned in particular delay.  There has been considerable delay in this matter, the actual chronology is set out in the prosecution submissions.  The matter was the subject of a contested committal in April 2019.  At that point there was an offer to plead guilty to attempting to pervert the course of justice, but that offer was not accepted at that point.  Subsequently, the prosecution became aware of the additional conduct in the Facebook messages.  At that time you were also charged with the charge of aggravated burglary, and both you and Mr Bietman were intending to fight those two charges.  Subsequently he pleaded guilty and you again proceeded to take the matter to a number of case conferences and when it was listed for trial, finally the matter resolved very late, earlier this month, so it was a late plea to the charges of assault but an early plea to the charge of attempting to pervert the course of justice.

24The delay, some of it caused by COVID and circuit congestion, is a fact that I take into account.  You have had this hanging over your head now for nearly three and a half years.  Significantly, it appears that you have not been involved in the criminal justice system since that time so that you have used that period not to keep reoffending.  It has also caused stress on you, and that is a factor that I take into account.  In addition, any plea of guilty in the COVID environment as has been indicated by the Court of Appeal in the case of Worboyes that sentencing judges are required to give a perceptible amelioration of sentence to offenders who plead guilty in the COVID environment, and I do that in this case.  You have facilitated the course of justice and accepted responsibility.

25In terms of the purposes of sentencing, the basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that offenders are rehabilitated and reintegrated into society. 

26In this case both the prosecution and the defence accepted that a community corrections order was within sentencing range and I have accepted that submission from counsel.  I had you assessed for a community corrections order.  On the first assessment you had a difficult relationship with the assessor and became argumentative, and then I offered the chance to have a second assessment and you have indicated orally and you have signed today that you are prepared to consent to a community corrections order and Mr Thyssen has explained that order to you.

27I am satisfied in the circumstances of this case, given the lower level of the offending of attempting to pervert the course of justice, which generally carries a gaol sentence because there is a lot of it about, that a community corrections order is an appropriate disposition in this case.  However, I should warn you that the terms of the community corrections order that I am proposing to impose on you is that you have to perform 125 hours of community work over the next 15 months as directed, to be under supervision by the Office of Corrections or community corrections service.  In addition to that, if they decide to send you to ACSO or a drug or alcohol rehabilitation service you are to do that.  Also, any mental health that they determine that you might need to assist you, you are to undertake whatever is directed by the manager.

28I have also allowed that 50 hours of any treatment or assessment that you undertake will be credited against the 125 hours of community work, and it is likely in the next few weeks the community corrections people will get the community work system back up and running as we get into a more COVID-normal environment.

29In addition, while you are on a community corrections order you are under effectively a good behaviour bond, which means if you do commit an offence carrying a term of imprisonment then that breaches the order and you will come back to me to be sentenced again for this offending and to be sentenced for the breach of a community corrections order, which itself carries a three-month gaol sentence. 

30Part of the community corrections requires you to comply with the requirements that they impose on you.  They are not onerous requirements but they are designed to try and rehabilitate you into the community by assisting you with your mental health problems, assisting you with drug and alcohol or mainly drugs problems, and sort of keeping you on the straight and narrow so you do not get back into committing crime, because you have got a prior criminal record, albeit it is dishonesty offending, so that is what is required. 

31Part of it is you have to tell them if you change your address, you have to get permission to leave the state.  In this case the order does not start until 18 February so that allows you to go for this holiday that you have prebooked, but I indicate to you, and this will all be on transcript, that if they bring you back in front of me for breaching this order, for failing to comply with directions, then I will remind you of what I said to you today, that it carries a three-month gaol sentence and I will not cut you any slack.  Do you understand that?

32OFFENDER:  Yes.

33HIS HONOUR:   Now because the offending in a sense is a course of conduct, it is appropriate that the sentence be an aggregate sentence of a 15-month community corrections order for the three offences.  There is no pre-sentence detention, Mr Malik?

34MR MALIK:  No, Your Honour.

35HIS HONOUR:  I must take into account your prospects of rehabilitation.  I regard them as reasonable.  Obviously this offending was related to this bad relationship you were in, so provided you can stabilise your personal circumstances so that you are in a productive relationship rather than one with a person who has got a criminal record that was carrying a lot of baggage, namely Mr Bietman, who had been to gaol a couple of times, then you do have occupational qualifications, you have a reasonable work record, and clearly the 31 or 32-year-old that you are now, being on some sort of pension or carer's support payment, you have got a life expectancy of 40 years.  You have got two good qualifications in aged care and healthcare so you should be in the workforce.  They are screaming out for able-bodied people in the workforce.

36HIS HONOUR:  These are certainly serious convictions but you will just have to do the best you can, get into a job where you can show an employer that the sentencing remarks that I have made where I have indicated that I regard you as having reasonable prospects of rehabilitation and that you got involved in this offending through this bad relationship with Mr Bietman and it is clear from the sentencing remarks of Judge McInerney that he was the main offender in the events that took place, although you had the animus against Mr Hope that started the whole matter off.

37I have taken into account the matters that Mr Thyssen has put on your behalf and that is the sentence that is imposed, and I do not want to see you back here.  The community corrections order, you have to check into the Office of Corrections by phone within two business days of the 18th of this month.  You will get another copy of this document to take with you and you have obviously started off on the wrong foot with the two assessors but they are prepared to give you a crack and so it is up to you to give them a crack in the community corrections order and not cause them aggravation, which you obviously have in the two matters.  So now that this has concluded, albeit you have got the community corrections order, your mental health space might be better, you can clear that and try and get into the workforce and do whatever treatment or counselling that the psychiatrist recommends and then keep up with the ACSO people to address any residual drug problems you might have.

38Is there anything I need to further address, Mr Malik?

39MR MALIK:  No, thank you, Your Honour.

40HIS HONOUR:  I want to thank both counsel for their assistance in this matter.  Adjourn the court sine die.

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