Director of Public Prosecutions v Lafferty (a pseudonym)
[2023] VCC 1909
•20 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENT LAFFERTY (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2023 | |
DATE OF SENTENCE: | 20 October 2023 | |
CASE MAY BE CITED AS: | DPP v Lafferty (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1909 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty - First Indictment - Common law assault (4) – Causing injury intentionally (5) – Threat to kill (2) – False Imprisonment (1) – Cultivate narcotic plant (1) – Second Indictment - Persistent contravention family violence intervention order – Relevant criminal history - Offending involving family violence – Conduct egregious and protracted - Sentenced for a second time as a serious violent offender – Significant deprivation in childhood – Long history of polysubstance abuse – Antisocial personality disorder
Cases Cited:Filiz v The Queen [2014] VSCA 212; Kalala v The Queen [2017] VSCA 223; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 51; Pasinis v The Queen [2014] VSCA 97
Sentence: Convicted and sentenced to an overall Total Effective Sentence of 9 years’ imprisonment with a non-parole period of 6 years and 9 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration – 594 days’ imprisonment declared as having already been served as part of the sentence imposed – Ancillary order Disposal
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Ms J. Kennedy | Leanne Warren Solicitors |
HER HONOUR:
1Brent Lafferty[1], you have pleaded guilty to the following charges on indictment number N10447737.3 ('the first indictment'). Those charges are:
· four charges of common assault.
· five charges of causing injury intentionally.
· two charges of making a threat to kill.
· one charge of false imprisonment; and
· one charge of cultivation of a narcotic plant.
[1] A pseudonym.
2You have also pleaded guilty on indictment number N12259377 ('the second indictment') to:
· two charges of persistent contravention of a Family Violence Intervention Order.
and you have pleaded guilty to three related summary offences being charges of contravention of a Family Violence Intervention Order.
3Common assault has a maximum penalty of five year's imprisonment, whilst the offences of causing injury intentionally, make threat to kill and false imprisonment each have a maximum penalty of 10 years' imprisonment.
4Cultivation of a narcotic plant has a maximum penalty of one year imprisonment, if I am satisfied, on the balance of probabilities, that the offence was not committed by the person for a purpose related to trafficking – in your case I am so satisfied.
5In relation to Persistent Contravention of a Family Violence Intervention Order, the maximum penalty is five years' imprisonment. In relation to the related summary offences, the maximum penalty for each of these is two years' imprisonment.
6In sentencing you I must have regard to the maximum penalties as they reflect the seriousness with which Parliament regards the offences which you have committed.
7I was told that during the period of the offending for which I now sentence you, you were between 32 and 33 years of age, and the victim, Zoe Lethbridge[2], was between 29 and 30 years of age.
[2] A pseudonym.
8During the period of the offending in relation to the first indictment, the victim and you had been in a de facto relationship for about 11½ years. I was told that you have three children together. Your children were aged between seven and eight years, five and six years, and one month and nine months during the period of offending in relation to this first indictment.
9In December 2017, you had been sentenced by her Honour Judge Lawson (as she then was) at a regional County Court with respect to offending against the victim and her mother, Candice Oliver[3], on 20 and 21 January 2017. I shall refer to these offences in more detail in due course but suffice to say that you had committed offences of violence against each of these victims in respect of the occasion for which her Honour (as she then was) sentenced you.
[3] A pseudonym.
10You were sentenced to a total effective sentence of four years and nine months' imprisonment with a non-parole period of two years and nine months. Subsequently, you appealed the sentence but your application for leave was refused on the papers by the Court of Appeal (Priest JA) on 27 March 2018.
11You were released on parole on 21 January 2021, and you resumed your relationship with the victim. Your sentence lapsed on 2 May 2021.
12After your release, you lived with the victim and your children in a suburb of a regional Victoria town. You promised the victim that you would never hurt her again. Most regrettably, your promise was quite short-lived.
13In relation to indictment number N10447737.3, that is the first indictment, I was told that in about mid-December 2021 the victim observed a change in your behaviour. You would bring up the past and the victim's previous relationships, focusing on a time just after your oldest child was born, at a stage when you and the victim had separated.
14You would become angry and upset, behaving in an aggressive manner, making demands of the victim to tell you the truth about the past, and you would not believe any of her responses.
15On an occasion between 1 and 23 December 2021, you and the victim were home. You were arguing, as unknown females were adding you on social media, which was upsetting the victim. At the time, the victim was carrying your youngest child who was about two months old. You became angry with the victim and punched the wardrobe door. You then struck the victim to the left side of her face, striking her near the left corner of her mouth. This is the conduct that is the basis for Charge 1. The victim suffered a cut to the inside of her mouth and a bruise on the left corner of her mouth. You then grabbed her hair, pulling her neck back. You told her that you would let her go if she stopped 'accusing (you) of shit'.
16At this point, your oldest child entered the bedroom and screamed after seeing you holding his mother by the hair. You spoke to your son, trying to downplay the incident, by saying that you and the victim were playing. You later apologised to the victim, saying that you did not realise that she was holding your baby daughter.
17On 24 December 2021, the victim was at home wrapping Christmas presents for the children. You had been out at an unknown location and returned home at about midnight. You started to accuse the victim of having sex with a person that the victim kissed when she was 18, before meeting you.
18You and the victim went out the backdoor of the house and sat at an outdoor table under a covered patio area. You and the victim began to argue. You leant over and slapped the victim to the side of the face. She threw a lid from her drink at you, saying 'Don't fucking touch me'.
19You stood up and pushed the victim back whilst she was seated on the chair. As a result, she fell backwards off the chair. You then grabbed her by the hair and dragged her up to her feet. You pushed her against a wall near the kitchen window and told her to 'shut the fuck up'. This conduct gives rise to Charge 2, common assault, a rolled-up charge.
20You then picked up a piece of firewood kindling and struck the victim on the head. She tried to cover her head with her hands to protect herself. You instructed her to move her hands away. This conduct was alleged by way of uncharged conduct, to put your offending on this occasion into its proper context.
21You then picked up a hammer from the outdoor table and asked the victim which end of the hammer she would prefer to be hit with. She told you the claw end. You then struck her on the top of her head, causing pain. Again, this conduct was alleged by way of uncharged conduct for the purposes of setting your offending on that occasion in context.
22At some point, the arguing stopped, and the victim was told to shower so she would feel better when the children woke up for Christmas.
23On an occasion between 26 and 31 December 2021, the victim and the baby were sleeping on a mattress in the loungeroom. You had been looking through the victim's phone, focusing on her Facebook history. The victim woke up and you immediately started questioning her about various males that liked her posts.
24The victim got up from the mattress and sat on the couch to breastfeed your child. The victim saw you were holding a metal pimple-popping tool. You threatened to stab her in the eye with the sharp end of the tool. You instructed her to put the baby down. She complied, putting the child beside her on the couch. You dropped the metal tool and leant over to the victim, grabbing her face with your hand. You then forced your thumb into her left eye. She asked you to stop. You removed your hand momentarily and then again pushed your thumb into her eye, pressing it harder than before. You then removed your hand from her face. This conduct gives rise to Charge 3, causing injury intentionally.
25The victim's eye was watering and red. The victim put sunglasses on to hide her eye from the children. She suffered an injury to her eye resulting in pain, redness, irritation, and watering from the eye. She did not seek medical treatment. However, she took photos of her eye with her mobile phone.
26Your two older children later observed their mother's eye and asked what had happened. The victim said that she had run into a cupboard. Your oldest child told her that she looked scary.
27At about 10.00 pm on 3 February 2022, you and the victim were arguing on the outdoor patio about who the victim was communicating with at a time when you and she had broken up. You would not believe her answers.
28After this conversation, you took an extension cord from a nearby outdoor table. You wrapped the extension cord tightly around her neck. The victim struggled to breathe and almost passed out. This gives rise to Charge 4, common assault.
29You demanded that the victim tell the truth, telling her 'You're not going to go out that easily'. You released some tension from the extension cord to allow her enough air to breathe. You told her that you were going to string her up and make it look like she had killed herself. You then let the cord go. This gives rise to Charge 5, make threat to kill.
30You then grabbed the victim by her hair. You were sitting on a chair and forced her to kneel before you. You pushed her head down, forcing her face into the concrete. You released your grip on the victim's hair and forced her to remain seated. You continued to yell and shout at the victim. You told her that she had kept the kids away from you for four years whilst you were in gaol. You called her a 'dog', for making a statement against you.
31Whilst the victim was seated, you obtained a Jet lighter from a table. You ignited the lighter and tried to burn the victim's hand. She pulled her hand away and you kept telling her that you would get her to tell you the truth. She pleaded with you that she was telling the truth. You then obtained a pair of gardening secateurs from the table and threatened to chop her fingers off. The events to which I have just referred from the time that you grabbed the victim's hair on this particular occasion were led by the prosecution by way of uncharged conduct, to place the offending on the indictment on this occasion in its proper context.
32You then threatened to drag the victim out to the shed and knock her teeth out with a hammer. You took the hammer from the table and put the claw end into her mouth. You were telling her to shut up. You told her again that you would knock her teeth out. Again, this incident was led by way of uncharged acts.
33On the outdoor patio was an upright chest freezer. You said to the victim 'You're getting in the freezer'. She said in reply 'No I'm not'. You then said, 'Yes you fucking are'. You grabbed the victim's dressing gown and took it off her. You removed her singlet and pyjama pants. She told you she did not want to go into the freezer and begged 'Don't make me go in there'. You replied 'You're gonna get in there, I'm gonna get the baby and you're gonna get in there with the baby'.
34The freezer was on at the time, and you removed frozen food items and a large bag of ice to make room for the victim. You forced her to get into the freezer. She climbed into the freezer and sat on a small ledge inside. You told her that she had one more chance to tell the truth. She told you again that it was the truth. You then told her she was staying in the freezer and shut the lid, sitting on it to stop her from getting out. The victim was hunched over in a ball and remained in the cold freezer for about one to two minutes. She felt like she was starting to run out of air. She hit the side of the freezer asking you to let her out. You opened the lid and asked her to tell you the truth. You tipped a bag of ice over her body and told her she was going back in. You shut the lid down on her. However, the lid would not close all the way down.
35The victim was unable to crouch over due to the large amount of ice in the freezer. As a result, you held the lid down on her neck and back. Her head was tucked down. You opened the lid again and said she was lying. You grabbed her by the hair and pulled her head sideways towards you between the freezer lid and the top end of the freezer. You then shut the lid down on her head about six times, impacting both sides of her face. You stopped and opened the lid, saying 'Ohhh mad chunks of your hair are coming out, and you're bleeding a bit'. The victim saw that you were holding and flicking chunks of her hair off your hand. She could feel blood running down the side of her face and down her arm and front into the freezer. As a result, she suffered a large laceration to her forehead near her left temple, bruising to her eye and bleeding. This gives rise to Charge 7, causing injury intentionally.
36The victim was shaking as she was so cold. You made a further demand for her to tell you the truth. She then made up a story that she had slept with someone else to make you stop. You then let her out of the freezer. The conduct to which I have previously referred where you made the complainant get into the freezer and kept her there gives rise to Charge 6, false imprisonment.
37After releasing the victim from the freezer, Ms Lethbridge said she needed a shower and you both went inside. After showering, Ms Lethbridge observed her head was still bleeding, her eye was bruised, and she had a headache and was in pain. She was worried about the children seeing her injuries.
38Your baby daughter had woken up, so the victim went and fed the child on the mattress in the lounge room. You asked her if it was true that she had slept with someone else. She then said that it was not true. You started to cry and asked her why she had said it. She explained that she had had enough and wanted to get out of the freezer – she was in pain due to ice burns on her legs.
39You and the victim told your older son, that his mother had injuries because she had a fight with your mother. You later left and went to work.
40On 5 March 2022, Ms Lethbridge was at home with the three children. You returned home after being out all night. The children were inside the house whilst the victim was out on the patio on the phone, trying to make a doctor's appointment for your older son who had chicken pox.
41You started arguing with the victim about an ex-partner of hers. You punched her to the side of her head, causing her to fall onto the ground. You grabbed the complainant by the hair and pulled her up to her feet. She asked you to stop and told you that the children were inside. You told the victim not to scream for help and threatened to kill her. You then instructed the victim to end the phone call to the doctor's clinic.
42The victim heard your baby daughter, who was about 18 weeks old at this stage, crying and she went inside to get her. You followed the victim inside and said, 'you're not hiding behind her give her to me'. You then told the victim to get back outside.
43You were holding your infant daughter and picked up a pair of green handled kitchen scissors from the outdoor table. You then pushed and twisted the scissors into the victim's back. You kept telling her that she was a 'lying sick slut'. You pushed the scissors into her back twice, then the back of her neck. She suffered from pain, bruising and abrasions to the back of her head and neck. You demanded that she start talking. This conduct gives rise to Charge 8, causing injury intentionally.
44You then paced back and forth in front of the back door to the house. You were breathing heavily. You said to the victim 'we're not done, you're not done yet, I'm just having a little breather'. You then walked over to the freezer turning it on and said, 'you're going back in the freezer'. You told the complainant that you 'fucking hated' her and wanted her out of your and the kids' lives. The complainant said, 'if you want me to go, I'll go'. You then told her that she was not going anywhere as she would call the cops. You then said 'I'm going to slice your fucking guts open and you're not getting no help. I'm going to glue the cunt up and that's how your gonna stay'. This conduct was alleged by way of uncharged conduct, as context to charged behaviour on that day.
45You then said to the victim 'get the fuck inside and get down to the bedroom'. She walked inside and you told her to put her hair down. You put your infant daughter down on the mattress in the lounge room and your older son was also in the lounge room. The victim went into the bedroom. She heard the baby starting to cry. You walked down the hallway and asked where the scissors had gone. The complainant said she did not know where they were. You then went into the bedroom and shut the door. You told the complainant to get down on the ground. She complied. The complainant asked you to stop and told you that she did not know what you were talking about. She asked you what had happened last night. You then picked up an 8-kilogram kettle bell from the foot of the bed and said 'you better start talking cunt'. The complainant told you that she had already told you everything. You stood over her. She was crouched down with her arms around her head. You then struck her a number of times to her back with the kettle bell. The complainant suffered pain, bruising and abrasions over both scapular regions of her back, tenderness to her mid-cervical spine and the midline posteriorly of her upper neck. This conduct gives rise to Charge 9, causing injury intentionally.
46You made further demands to the victim to tell you, and she repeated she had told you everything. You then kicked her to the chest. You opened the bedroom door, and she could hear your daughter crying. The victim went to get her and you asked her why she was following you. You then kicked her in the stomach, forcing her back into a cupboard which made a loud noise. You then said, loudly enough for the children to hear, 'can you hear the mouse in the cupboard?' You were apparently trying to hide what was going on. You then told the complainant to 'get the fuck in the bathroom' and to clean herself up. This evidence was relied on for context information only as uncharged acts.
47The victim then went into the bathroom and tried to fix her hair and makeup. You came into the bathroom holding your daughter who was still crying. The victim told you that she was hungry and asked if she could feed her. You said that she could not and told her that you were going to make her a bottle. The victim tried to explain to you that the bottle would make her sick due to her dairy intolerance. You replied, 'oh well you make me sick you're a fucking sick slut'. You asked her if she was ready to tell the truth and she could only leave the bathroom once she told the truth. You left the bathroom holding your daughter and closed the door.
48You returned to the bathroom a short time later and asked the victim if she was going to talk. The victim repeatedly said that she had told you everything. You then kicked her to the stomach causing her to fall backwards and she hit her back on the bathroom vanity. This conduct gives rise to Charge 10, common assault.
49Ms Lethbridge asked you again for you to let her feed the baby. However, you refused to do so. You then shouted at your infant daughter, telling her to shut up. The victim asked you not to do this, and you told her to shut up and that you were not hurting her. The victim asked you again for you to allow her to feed your infant daughter, as she continued to cry. You handed your baby daughter to the complainant and told her she could feed her in the bathroom, then you shut the door.
50The victim sat on a wooden stool in the bathroom and tried to breastfeed your daughter, however, the baby was still crying and unsettled. You returned a short time later and you were holding a kettle in your hand. You said, 'I'm going to fucking scald you' and 'do you know how many cunts I done this to in gaol?' You then poured boiling water from the kettle onto the victim's legs. The boiling water caused burns to the complainant's legs which has since developed into scars. This conduct gives rise to Charge 11, causing injury intentionally.
51The infant started to scream, and the victim attempted to sooth her by changing her to the other breast. You yelled at the victim and said, 'hurry up and fucking feed her'. The victim changed over to the other breast. You then poured boiling water onto the floor in between the complainant's feet, causing the water to splash onto her feet.
52You continued to yell at the victim, and you grabbed her right hand, holding it over the bathroom sink. You poured boiling water onto her hand, causing her to pull her hand away. She begged you to stop. You told the complainant that you would refill the kettle and pour boiling water over her head. You said to her 'this time you're gonna have no hair left cunt, I'm gonna tip it all down your back.' You left the bathroom and returned a short time later, instructing the complainant to go back to the bedroom.
53The victim carried your infant daughter with her to the bedroom and you followed her and shut the door. Your daughter was crying, and the victim asked you if you could go and get the baby's dummy. However, you refused. You told the victim to hurry up and shut the baby up. You left the room and returned with Panadol, telling the victim to give her some Panadol. You said that no one was leaving the house ever and that you were going to feed her, and the children drugs every day. You pointed at a rocking chair in the corner of the bedroom and told the complainant to sit in the corner like a dog. She sat in the chair as you instructed. You told her to turn the chair around and face the wall. You then told her that she was a bad mother. You then told the victim you were going to kill her and you were going to cut her up and put her into the freezer. You continued to yell at Ms Lethbridge, telling her that you were going to rip her eye out this time and leave it hanging and 'fuck (her) up so badly that no one would ever want (her)'. The threat to kill component of this conduct gives rise to Charge 12.
54The complainant was still sitting on the rocking chair feeding the baby. You laid down on the floor and said, 'spy on me again cunt and watch what happens'. She told you that she was not. You then said, 'face the fucking wall'.
55About 10 minutes later your older son entered the room and stood near you. He told his mother that he was in pain and needed medicine. The victim turned around and stood up from the chair. You woke up and asked what was going on. She told you that your older son needed medicine. You left the room to get medicine and as you left, she asked if you could get a nappy and wipes for the baby. You refused to do this and told the complainant to use a shirt in the room. Your infant daughter was unsettled and still crying, and you told the victim that you were going to put her in the freezer. This conduct was alleged by way of uncharged acts and is part of the context of the charged offending.
56The victim laid your infant daughter on the floor and used a pillowcase to clean the baby's bottom then wrapped her in a t-shirt. She could hear you in the lounge room yelling at your older son as he was not taking his medicine. You then returned to the bedroom shutting the bedroom door. You laid down in front of the door placing your feet against it. You fell asleep for about an hour.
57Your younger son knocked on the bedroom door and said he wanted to see his mother. You woke up and opened the door, telling the children to go back into the lounge room. The victim told you that the baby needed a proper nappy and wipes, and you agreed then walked out of the bedroom. The victim followed. She put your daughter on the mattress in the lounge room and changed her nappy whilst you laid next to them. She told you that she really needed to call the doctors back and get antibiotics for your older son. You told her to lie down. She lay next to you for about ½ hour until the baby woke up. You were asleep. The victim went down to the spare room and got your older son and asked him to get his brother and come out the back of the house, as she desperately wanted to get the children and run but was terrified that you would wake up and catch them.
58Whilst you were asleep, the victim gathered the three children, her car keys and mobile phone. They then fled the house via the back door. The complainant was in fear that you were going to kill her and the children. She then drove with the children to the local regional police station, calling Triple 0 on the way.
59She arrived at the police station and was observed by police standing outside her car, holding the baby. She was visibly distressed and crying and asking for help. for her two sons who were seated in the car at the time.
60The victim told a police officer something of what you had done to her at that time. Police helped the victim and the children, taking Ms Lethbridge to the hospital via ambulance.
61At the local Base Hospital, the victim was examined and found to have the following injures:
(a) mid-cervical and upper mid-thoracic spinal tenderness with bruising and abrasions.
(b) bruising and abrasions to the bilateral scapular regions.
(c) bruising and abrasions to the neck.
(d) abrasions to the left forehead, left elbow, right index finger, left lower leg and left lateral thigh.
(e) chest wall tenderness; and
(f) superficial burn scald signs to the right lower leg and right index finger.
62Police conducted an investigation of the scene and took photographs. They found the 8-kilogram kettle bell in the master bedroom and scissors in the lounge room. They found the upright chest freezer on a patio in the backyard near the table and chairs. An extension cord was also found. The freezer appeared to have blood on the top left edge and lid.
63Police also found two small cannabis L plants in a cupboard in the bedroom, giving rise to Charge 13.
64The prosecution opening then goes on to detail the further steps in the investigation and further disclosures made by the victim in this matter, and I take these matters into account in a general way. The victim provided police with photographs of injuries she suffered on a prior occasion to both her eye and head.
65On 7 March 2022, police attended your address and blood stains on the top rim and inside the upright freezer were swabbed. Hair strands were found on the bottom of the freezer, the swabs and the hair strands were subjected to DNA analysis and found to belong to the victim.
66On 8 March 2022, photographs were taken by police of the victim's injuries.
67At about 4.00 pm on 5 March 2022, you were arrested at your home. You were taken to the local police station and gave 'no comment' answers in a record of interview which was conducted at that time.
68You were later charged and remanded in custody.
69On 7 March 2022, an Interim Family Violence Intervention Order was made against you at the local Magistrates' Court to protect the victim and your three children.
70The order contained a number of conditions, including that you were prohibited from contacting the victim and the children or getting anyone else to do this, or anything that you must not do under the order.
71However, whilst you were in custody you contravened the order on a number of occasions, which is the subject of Charge 1 on the second indictment, and also the subject of a number of summary offences to which you have pleaded guilty.
72The basis for Charge 1 on the second indictment, being a charge of persistent contravention of a Family Violence Intervention Order between 25 March and 31 March 2022, is as follows:
(a) On 25 March 2022 – so, 20 days after you last offended against the victim and were charged and remanded, you telephoned your brother, and gave him the victim's mobile phone number, asking him to telephone the victim. You told your brother to 'dial it, so you can put me through like a three way'. Your brother then phoned the victim five times at your request. On each occasion the complainant did not answer. This conduct is in breach of the condition that you are not to get another person to do anything that you must not do under the order.
(b) On 27 March 2022, you again phoned your brother. He phoned the victim and brought her into the phone call. You spoke to her and asked her if the kids were all right. She responded 'yes'. You then asked to speak with them, and she said that they were busy playing with friends. Again, this conduct breaches the Family Violence Intervention Order.
(c) On 28 March 2022, you phoned your brother once more and asked him to phone the victim and bring her into the call. The victim answered the call. You asked her if she was leaving Victoria and she said she was. You then told her that you would have her 'charged with kidnapping'. You then told her several times that you had legal advice and you had rights.
(d) On 31 March 2022, you phoned your brother once again and asked him to phone the victim. However, the victim did not answer. You then berated your brother, accusing him of not helping you and not caring about you.
73Each of the incidents to which I have just referred gives rise to Charge 1 on the second indictment.
74I was told that the related summary offence – Charge 10 – contravention of the Family Violence Intervention Order relates to conduct as follows. On 11 May 2022, you sent a letter to the victim. It stated, amongst other things, that the victim probably did not want to hear from you, but that you loved and missed her and that she was the love of your life. You asked her if you were still a couple and said that you were so sorry for being such a fuck up.
75The conduct giving rise to related summary offence Charge 11 - on 19 May 2022 you phoned your brother asking him to phone the victim. The victim did not answer. Again, this conduct was in breach of the Family Violence Intervention Order.
76In relation to summary offence – Charge 12 – on 13 June 2022, you requested that staff from the Metropolitan Remand Centre contact the victim on your behalf. Breathtakingly, a staff member acceded to your request and called the victim asking to speak to her using her nickname. The staff member advised the victim that you wanted to contact her, but she declined. Again, this conduct breaches the Family Violence Intervention Order.
77The basis for Charge 2 on the second indictment is that on 22 July 2022 you requested that staff from Metropolitan Remand Centre contact the victim on your behalf. Again, somehow, a staff member thought it was appropriate to do so and telephoned the victim. The victim recognised the number and did not answer.
78On 23 July 2022, you again requested that staff from the Metropolitan Remand Centre contact the victim on your behalf. A staff member did so. The victim recognised the number and did not answer.
79On 24 July 2022, you phoned your brother and asked him if he had 'heard from fuck face Luigi over there', a reference apparently to the victim. He replied that he had not, and that she had 'gone ghost'. Your brother asked you if he should call the victim and you said yes. He then phoned the victim with you on the line. You asked the victim what she was doing, and she said 'nothing'. You told her that you were expecting to receive a large sum of cash and that you wanted to give some of it to the children. She told you that she did not want the cash and would not accept it. You then had a discussion with her about not signing your daughter’s birth certificate. The victim told you that your relationship with her was over. You then told her that you had a new family called 'the Finks Motorcycle Club'.
80Again, on 31 July 2022, you phoned your brother. During the conversation you asked him to telephone the victim and bring her into the call so you could speak to the kids. He phoned the victim with you on the line. You asked the victim if you could speak to the kids. She told you that she did not want the children to speak with you. You then asked her if you needed to get DHS involved in order to speak to the kids. She said, 'do what you need to'. You then asked her repeatedly in a threatening tone if you needed to involve DHS, saying:
'So, I've gotta go through DHS and go through all that shit and make a complaint, I'm thinking you're on the drugs with ya sister over there. Fuck knows who ya having around the kids probably all child molestering dogs, I don't know. So, I have to go through that way, do I?'
81You then said, 'why can't I just talk to them – why are you being selfish?' You then asked her to ask the boys whether they wanted to speak to you. However, she declined and said they were playing with their friends. You then said that you had been told about what she had been doing, and that she had left because she was 'scared of all the lies and shit that she had put you through'.
82That same day, about 20 minutes after the previous call to which I have just referred, you phoned your brother again asking him to phone the victim. He again called the victim with you on the line. You told her that you only had three minutes of call time left. The victim told you she did not want to argue with you and wanted you to leave her alone. She said 'you didn't choose your family. You came home and bashed the fuck out of me, and you poured boiling water over me.' You replied to her, 'you tipped it on yourself you dickhead'. You continued to argue with the complainant and said, 'well I'll leave you and your boyfriends alone – have a good life mate'.
83On 4 August 2022, you phoned your brother again and asked him to phone the complainant. However, he advised you that she had changed her phone number or blocked you.
84Subsequently, the offending was reported to the police.
85In relation to this further offending, you declined to be interviewed by police. You were charged on 11 October 2022.
86Mr Lafferty, your offending is most serious and calls for a punishment which is just in all the relevant circumstances. Your conduct must be firmly denounced. Your conduct towards the complainant was malevolent and cruel, bordering on sadistic. On five separate occasions you inflicted violence upon the complainant of various kinds with the fourth and fifth occasions, which comprise Charges 4-7 (fourth occasion) and Charges 8-12 (fifth occasion) being particularly egregious and protracted. At times your children were in close proximity.
87Moreover, after you were remanded in custody, you brazenly attempted to make contact with the victim on numerous occasions and were successful in doing so on a number of these. I express my utmost concern that on occasions, presumably unwittingly, and I am not sure how this could happen, that staff from Melbourne Remand Centre assisted you to do so, in breach of orders against you. It is to be hoped that this never happens again. However, in respect of your conduct, you seem to think that you could treat the victim however you liked whenever you liked, including when you were in custody, which gives me grave cause for concern.
88In assessing the nature and gravity of your offending I have borne in mind that our Court of Appeal has said that there is a need to condemn family violence in line with community expectations (Kalala v The Queen [2017] VSCA 223 (59)), and the observations in Filiz v The Queen [2014] VSCA 2012 [23]).
89“It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.” Filiz v The Queen [2014] VSCA 212 at [23] It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners - see Kalala v The Queen [2017] VSCA 223.
90Mr Lafferty, your former partner is one of those women. I will refer to her Victim Impact Statement in due course.
91In assessing the objective seriousness of your offending, I take into account the following:
(a) That the victim was offended against in her own home, a place where she was entitled to feel safe. It also occurred in circumstances where you had recently served a term of imprisonment for assaulting her and her mother and she had allowed you to return in circumstances where you had promised her you would not hurt her again. Further, each of the offences was committed either in the presence of your children or when they were in the house, although I do note that the victim or you or both of you made excuses about what had occurred in a bid to protect them from the dreadful truth of what you were doing to their mother.
(b) Further, some of the offences involved the use of weapons or items or the like to inflict injury and no doubt, cause fear – namely an extension cord which was used around the complainant's neck in respect of Charge 4; the use of the freezer and the freezer lid Charge 7; the use of scissors giving rise to Charge 8; the use of the kettle bell in relation to Charge 9; and the use of boiling water in respect of Charge 11.
(c) Also, I have factored in as a third matter that in relation to some of your offending, you subjected the victim to degrading and humiliating behaviour.
(d) Fourthly, I factor in that the charged acts were not isolated incidents but rather occurred in the context of a relationship characterised by fear, control and violence. Having said this, I make it clear that you are to be sentenced in relation to the charged offences only, and these must not be loaded up in order to capture the uncharged conduct.
(e) I accept that the contraventions of the family violence intervention order were also particularly serious as you were on remand for the principal offences at the time.
(f) You are a serious violent offender and fall to be sentenced for a second time as a serious violent offender in view of your criminal history.
(g) You accept through your counsel that the offending in which you engaged on the occasions before me are serious examples of family violence offending.
(h) In relation to the common law assaults and intentionally cause injury offences, false imprisonment and threats to kill, I regard each of these as serious examples of such offences.
92In sentencing you I take into account the impact on the victim, which has been profound:
93Ms Lethbridge, who courageously read her Victim Impact Statement aloud at the first plea hearing, said that she felt that she could not describe the impacts of the incidents without considering the entirety of her relationship with you. She said she had lived for so long in survival mode and had not been able to process the compounding effects of abuse.
94She spoke of the many moments during the relationship where she felt pain physically and mentally. She spoke of moments where she begged you to stop hurting her and wondering whether she was going to die. She spoke of moments where she prayed to survive and clung to her children as if they were a shield and would protect her. She had contemplated suicide more than once but could not leave her children behind. She spoke of her fear of knowing on many occasions that she was about to be punished by you for things that were out of her control and she did not do, but for things that you had concocted in your mind. She spoke of feelings of helplessness and hopelessness, of feeling worthless, small and ashamed for what was happening. She said she had no control over what was being done to her as she felt powerless. She was too afraid to leave because the devil she knew was better than the devil she did not know, she felt.
95Ms Crocker, a trauma informed clinical supervisor and trauma counsellor, was of the view that Ms Lethbridge displayed considerable symptoms of stress, anxiety and depression and significant symptoms of post-traumatic stress disorder requiring medication. A report obtained from a psychologist, Ms Jo Robinson, dated 11 November 2022 in relation to your two sons, indicated that both of these children were displaying symptoms of post-traumatic stress disorder.
96I accept that the Victim Impact Statement and reports demonstrate that Ms Lethbridge and two of your children where reports have been provided, have experienced profound trauma as a result of your offending, in particular Ms Lethbridge. Moreover, after fleeing and reporting offences to police, they were placed in a refuge and experienced homelessness for eight months before being relocated. Consequently, they have been isolated from family and friends and Ms Lethbridge's employment and studies have been adversely affected, as have the children's education, as they had to move schools and are now behind in their studies.
97Mr Lafferty, these are the very real effects of your offending and that is your offending upon your former partner which occurred on occasion and a number of occasions in the presence of your children, which has had an impact on them and I take these impacts into account in sentencing you.
98Further, I take into account your criminal history which is relevant and fairly extensive.
99Of particular relevance are the following matters which were set out in a table by the prosecution:
(a) On 9 September 2010, at the local Magistrates' Court, you were convicted and fined $1,500 in respect of one charge of contravention of a Family Violence Intervention Order.
(b) On 20 December 2010, at the local Magistrates' Court, you were convicted in relation to unlawful assault, behaving in an offensive manner in a public place, making a threat to kill, three charges of assaulting a police officer, and four charges of resisting a police officer. You were sentenced to an aggregate term of imprisonment of 90 days.
(c) On 1 December 2011, at the local County Court, you were convicted of armed robbery and prohibited person in possession of a firearm. The circumstances of the offending were that you and three co-offenders, two of whom were also the subject of the sentence imposed by His Honour Judge Taft (as he then was), were that you committed an armed robbery on three men who were fishing on the Murray Riverbank. You were armed with a double barrel shotgun, whilst co-offender Halliday had a knife, and the other co-offender Zagami had a gaff hook. You and your co-offenders threatened the victims and stole money, mobile phones, and an esky. You were sentenced to two years and six months' imprisonment with a non-parole period of 12 months ([2011] VCC 1813 per Judge Taft).
(d) On 9 August 2012 at the local Magistrates' Court, you were convicted of contravening a Family Violence Intervention Order and sentenced to 21 days' imprisonment. On that occasion you contravened a Family Violence Intervention Order that had been put in place in September 2010, by verbally abusing the victim and threatening to assault and rape her. You drove to an unknown remote location and pulled her out of the car by her hair. You forced her to remove her clothing, held duct tape in your hand, and told her that she was going to die. She feared for her life. You then gave her clothing back to her and drove her home, telling her not to tell anyone.
(e) On 14 August 2013, at the local Magistrates' Court, you were dealt with for causing injury recklessly. That incident involved Ms Lethbridge, the victim in relation to the offending for which I now sentence you. The circumstances giving rise to that offending were that on 16 December 2010, you and Ms Lethbridge had been drinking at a local venue. You had an argument over the victim receiving a text message from a male friend. You became angry when she received another text message as you were walking along. You grabbed her by her hair and struck her to the head. She lost consciousness and woke up in hospital with head injuries. You received an adjourned undertaking with conviction for 12 months with a requirement that you take part in the Men's Behavioural Change Program.
(f) On 2 May 2017, at the local Magistrates' Court, you were convicted of one charge of unlawful assault and sentenced to 27 days' imprisonment. The circumstances of this offending were that on 3 January 2017, you had a verbal altercation with another male and struck him a number of times to the head.
(g) On 6 December 2017, at a regional County Court, you were convicted and sentenced to a total effective sentence of four years and nine months' imprisonment with a non-parole period of two years and nine months, in respect of causing injury intentionally to Ms Lethbridge’s mother, Candice Oliver[4], falsely imprisoning Ms Oliver, making threat to kill Ms Oliver, and causing injury recklessly to Ms Lethbridge as well as unlawfully assaulting Candice Oliver.
(h) Briefly, the circumstances of that offending occurred on 20 January 2017, after you became heavily intoxicated with a friend and asked Ms Lethbridge to collect you. After she collected you, you told her that you felt like punching on and suggested that you go to Ms Lethbridge's mother's home as you believed that Ms Oliver’s partner would be there. There had been an ongoing dispute with Ms Oliver’s partner in respect of a dog.
(i) The complainant, Ms Lethbridge, took you to her mother's home and, eventually, you got out of the car, telling Ms Lethbridge to go home and put the children to bed. Your intention was to wait for Ms Oliver’s partner to return so you could assault him. At around 11.30 pm you went into the house. You were very angry, and she asked you to leave. However, you did not. You then punched her in the mouth hard enough for her teeth to lacerate the top and bottom of her mouth. Ms Oliver ended up on the ground and you lifted your leg to your chest and stomped on the right side of her face with your rubber soled boots. You then said that you would stomp on her head and kill her. You reached down and began to strangle her – she was unable to breath. You then punched her to the left side of her head. That conduct gave rise to Charge 1 intentionally causing injury, in part. A struggle ensued whereby Ms Oliver was scratched to the lower leg. You then started to choke her, punching her repeatedly to the face and dragging her by the hair around the lounge room, causing hair to be ripped from her head. She pushed you off and you began to strangle her for a third time. You then threatened to kill her and her boyfriend. You asked her if she had had enough as you squeezed her throat, and she nodded that she had but you squeezed harder. You then let her go and she sat on the couch, and you kept shouting abuse at her about her boyfriend. Ms Oliver was petrified thinking you would not leave. You then cuddled her and said 'look at your eye, you poor pretty little thing. Look what you made me do to you'.
(j) You then asked her to call her daughter and explain the situation. When Ms Lethbridge asked Ms Oliver if she was alright, she said she was not. When Ms Lethbridge asked her mother if you had hurt her, she said that you had and whispered for her to come and get you. Ms Lethbridge said that she could not as she feared what you would do to her. You then took the phone from Ms Oliver and told Ms Lethbridge to get tobacco and said 'you'd wanna go and look and you'd wanna have a good look, I've already given your mother two black eyes'. When Ms Lethbridge eventually arrived, you told her to see her 'fucking mother' and walked out to the car where your two children at that time were seated. The false imprisonment alleged against you in preventing Ms Oliver from leaving her home took place over the course of about one hour.
(k) Eventually you left with Ms Lethbridge and said to her 'wait until we get home. You had better hurry up and get the kids to fucking sleep, you are gonna cop it too', at which stage you leant over and bit Ms Lethbridge's left shoulder. This gave rise to Charge 4 recklessly causing injury. You started to punch and slap her to the head while she was driving. Your three-year-old son asked what you were doing, and you replied that 'mummy had flies on her and you were smacking them away'. During the trip home you were threatening Ms Lethbridge, laughing, and saying you could not wait to get her home as you were going to 'fuck (her) pretty little face up'. When you got home, you were asked to help to get the one-year-old out of the car. You raised your fist towards Ms Lethbridge, but your three-year-old child who was standing beside her prevented any further assault. You then swore at Ms Lethbridge in a most derogatory manner. Ms Lethbridge was petrified about going into the house, but relieved when the children would not go to sleep, and you eventually passed out on the couch.
(l) Ms Oliver attended the local Base Hospital, and it was noted that she had suffered two black eyes; swelling to the face and head; bruising to the head, face neck and body; a bite mark on her right leg; lacerations to the inside of her mouth; hair ripped from her head during the assault; and she was coughing up blood.
[4] A pseudonym.
100Her Honour Judge Lawson (as she then was) spoke of your conduct on that occasion as being 'disgraceful, appalling and cowardly'. She spoke of your behaviour as being 'controlling, unprovoked and unnecessary' in reference to Ms Oliver, and that it was only good fortune that she did not suffer more serious injuries. She also spoke of you being abusive and aggressive towards Ms Lethbridge, having assaulted her mother, and that you did so in the presence of your two young children with the threat of further violence when you arrived home.
101On that occasion her Honour said that your conduct was deserving of stern punishment and must be condemned – that on behalf of the community she formally denounced your behaviour. She spoke of the profound effect of your offending upon Ms Oliver as set out in her Victim Impact Statement. Ms Lethbridge did not make a Victim Impact Statement, but Her Honour had regard to the fact that your behaviour would have caused her to be in real fear. It is noteworthy that Ms Lethbridge supported you in court at the sentencing conversation in the Koori Court Division on that occasion. Her Honour observed that you were very respectful towards the elders and accepted their advice.
102On that occasion the elders acknowledged that what you did was serious and that violent behaviour against both Ms Lethbridge and her mother was not tolerated by the Aboriginal community and was not part of your culture. The elders emphasised the need for you to have respect for both people. On that occasion you openly acknowledged to the elders that what you did was wrong and said you were committed to seeking appropriate help in the future and would stop drinking. You had undertaken a Managing Emotions Program and had your name down for Drug and Alcohol Programs. You acknowledged that since being in gaol your mental health and outlook had improved and you said you wanted to leave prison as a better person so that you could be a proper role model for your two young boys. Her Honour found that you genuinely regretted what you had done.
103Mr McKinnon, psychologist, had assessed you as suffering from post-traumatic stress disorder associated with your abusive and disruptive upbringing, and also poly-substance abuse disorder in remission. Her Honour accepted that the principles set out in Bugmy v The Queen applied in your case, apparently according full weight to the effects of your significant deprivation in childhood. She also found that your problems associated with post-traumatic stress disorder and poly-substance abuse disorder, alcohol, and cannabis, had contributed to the offending and in part related to your deprived background, taking these into consideration in a general sense when deciding the appropriate sentence.
104She also found that your genuine participation in the sentencing conversation was a factor which mitigated punishment. Her Honour found that overall, you had good prospects of rehabilitation. However, her Honour rejected your counsel's submission that a Community Correction Order was appropriate, a submission which was not opposed by the prosecution. Instead, her Honour imposed the sentence of imprisonment to which I have previously referred, as she considered that a Community Corrections Order would not reflect adequate punishment 'for the severe and profound effects that your criminal acts has had on the victims, in particular, Ms Oliver.
105You applied for leave to appeal against sentence to the Court of Appeal. Your application was determined on the papers as I have said by Priest JA on 27 March 2018. His Honour said that he was unable to disagree with the learned sentencing judges sentencing remarks or to find arguable fault in the sentence imposed. He said that your attack on Ms Oliver was 'gratuitous, savage and cruel'.
106Noting that you were not again to be punished for your prior convictions, his Honour took the view that your prior breaches of the criminal law bore directly on your prospects of rehabilitation and the need for community protection:
'to be accommodated through a sentence containing an adequate measure of specific deterrence. And in circumstances where the applicants offending was directed at a female – once more – general deterrence and denunciation were also very important features which needed to be reflected in the sentence imposed.' (52)
107His Honour went on to say:
'Acknowledging the applicants deprived background, and the other manifold matters going in mitigation, in all of the circumstances of this case, a sentence of 12 months’ imprisonment, coupled to a Community Correction Order, simply would not be sufficiently punitive to satisfy the various purposes for which a sentence may be imposed.'
108His Honour was of the opinion that it was not reasonably arguable that the sentence imposed by Her Honour Judge Lawson (as she then was) was manifestly excessive.
109Mr Lafferty, I have extensively referred to the previous sentence imposed, and remarks made by Priest JA as these are matters which, in my view, are quite pertinent to considerations for me in the present case. It appears that her Honour Judge Lawson did have the letter from psychologist, Mr Purchase, at that time and I will refer to that letter in due course, and that there is some more material before me than there was in the case previously insofar as Bugmy and Verdins considerations are concerned. However, it is also relevant to consider how you behaved in the past, and that the sentence imposed on that occasion – being the case to which I have just referred - did not serve to deter you from reoffending in an even more serious fashion against one of the same victims, which gives me grave cause for concern in respect of your prospects of rehabilitation.
110A number of the remarks and findings to which I have just referred are also helpful when assessing your moral culpability on this occasion and making determinations in respect of Bugmy and Verdins’ considerations, as well as other matters which are relevant to sentencing you. I make it clear that I do not re-sentence you in relation to any of your prior matters. However, these matters provide some context for the matters before me. It appears to me that your offending behaviour is escalating.
111In relation to the first indictment, I allow for a discount in your sentence in circumstances where you entered pleas of guilty at a late stage. In relation to the second indictment, you entered pleas of guilty at the first available opportunity, which entitles you to a significant discount in relation to those two offences. You pleaded guilty to the two charges on the second indictment at the committal mention stage and therefore you saved the witnesses the time and trouble of giving evidence and you saved the community the time and expense of contested proceedings.
112In respect of the violence matters, the subject of the first indictment, you conducted a contested committal hearing, which is your right, and you entered pleas of guilty in this court fairly shortly before your trial was listed to take place. This means that the witnesses, especially the primary victim were ultimately saved the time and trouble of giving evidence and the community was spared the time and expense of a trial, albeit that the witnesses would have had the expectation of giving evidence until shortly before the trial date. The discount you would have received in respect of this aspect would have been a good deal greater if you had entered pleas of guilty at an earlier stage.
113You are to be given a palpable allowance for contributing to the reduction in the backlog of trials in this Court caused by the pandemic by reason of your preparedness to plead guilty to the charges, and that is all the charges in this matter.
114Your stance in relation to the violent offending does not reflect much in the way of insightful remorse, and I have concerns about this.
115Indeed, in her report dated 30 August this year, Dr Borg, neuropsychologist, said that you have a high risk of violent reoffending and continue to display a lack of insight and remorse. She said:
'While he did report experiencing remorse and regret for his conduct, this did appear superficial in nature and was provided in somewhat general terms. Furthermore, his ability to reflect on his behaviour was hindered by a tendency to seek an external locus of blame, with suggestions his actions were provoked.' (Para 19)
116Dr Borg went on to say:
'Mr [Lafferty] does demonstrate the necessary cognitive repertoire to reason and appreciate consequences, as well as foresight to predict future outcomes and the ability to learn from his mistakes. However, the most concerning aspect to Mr [Lafferty’s] presentation is a superficial expression of remorse, as well as a tendency to seek an external locus of blame and downplay the impact of his offending. Collectively, this suggests his capacity for self-awareness, self-reflection and judgement is typically guided by his own egocentric position.' (Paragraph 38)
117These matters are relevant to my assessment of your prospects of rehabilitation and some other sentencing considerations in your case.
Background
118I take into account your background, including issues with your mental health:
119You are now 34 years old, having been born in regional Victoria. You identify as a First Nations person, with your mother being from the Barkindji peoples and your father from the Wiradjuri peoples.
120According to Ms Kennedy's written submissions dated June 2023, you did not meet your father until you were 11 years old, and you have not spoken to him since you were 13, when you ran away from home. You told Mr Cummins, psychologist, that your mother resided in New South Wales and previously worked as a primary school teacher but was now in receipt of a disability support pension. Your parents had separated when you were very young. You told Mr Cummins that you lived with your father for about 1½ years and then ran away – that you were then in a kids' refuge while waiting to go to a foster home. You told Mr Cummins that you were hospitalised at the Children's Hospital at around this time as you wanted to kill yourself, and that you thought you were in the hospital for about three months. You then moved to live with your mother and grandmother in New South Wales.
121According to a 28-day protective planning meeting record in 2002, you had been the subject of an Interim Accommodation Order on 14 August 2002. The record is in relation to a meeting which took place on 27 August 2002 at the home of your maternal grandmother in New South Wales, when you were 13 years old. The record indicates that a number of people were present at the meeting, including your grandmother and mother, as well as your maternal aunt and an uncle.
122The record indicated that you identified as Aboriginal and that the purpose of the meeting was to invite family members to develop a plan of care for you.
123This record also shows that child protection had substantiated that you were at risk of physical harm whilst in the care of your natural father. You said that you did not wish to have contact with your father and that he did not wish to have contact with you. There is mention in the record in respect of a 'stepfather' who allegedly sexually assaulted you and who posed a danger potentially to other children and was not to have contact with you. During the meeting you indicated that you wished to remain in the care of your grandmother. It was recommended that you receive specialised counselling with a local male psychologist. Your grandmother undertook to ensure your safety and to have you enrolled at the local school. There was a recommendation that child protection seek an Interim Protection Order through the Children's Court.
124This was the only document of that nature which your legal representatives said they were able to obtain. However, they also provided a letter from Gerald Purchase, clinical psychologist, dated 28 October 2002. Mr Purchase, a clinical psychologist in regional Victoria, said that after discussions with your case manager at a Health and Community Service in New South Wales, it was decided that he see you on two occasions and then make recommendations, which he proceeded to do.
125He said that he had seen you on 16 and 25 October 2002 at his rooms. At the second meeting he also spent some time with your grandmother.
126He said that you presented as a well-cared for 13-year-old adolescent who settled into the first assessment session very comfortably. You spoke of your confusion at being with your mother then your father and now with your grandmother. You said that you were not sure where you fitted in but you hoped to return to your mother. You liked your new school and that you had a number of ready-made friends, being your relatives. Mr Purchase said that he gathered you had some difficulty settling in and working out your place in the extended family.
127Mr Purchase said that you spoke about your father in a surprisingly open way and to quote from his letter:
'….and told of money, drugs, motorbikes, sex, violence, and so on. Although he did not say so, it sounded very much as if the environment in which he lived had few limits and boundaries. People lived impulsively and seemed to have no compunction about living out their impulses.' (Page 1)
128Mr Purchase observed that at the second session it appeared that things were not going well for you at home, being the home of your grandmother. Your grandmother indicated that you had been 'all but unmanageable' when you first arrived and at one stage you had taken a knife to her. She stressed that your behaviour had settled down remarkably, but you are still 'more than a handful to cope with. He demands that everything must go his own way and is forever teasing, bullying, or provoking those around him'. At that stage you had been suspended from school for inappropriate sexual touching, although Mr Purchase had not been able to find out the details from the welfare coordinator in relation to this.
129He was of the view that you presented:
'……with what seems to be a split in his nature: on the one hand he is an open, playful, intelligent, and bubbly young adolescent who is pleasant to be with. On the other hand, there appears to be an impulsive adolescent barely masking aggressive and sexual tendencies. His needs are so great that he has to fulfil them, even at the expense of other people's rights. I think we are seeing the beginning of action without empathy, a very concerning state of affairs.'
130Mr Purchase said that you and your carers were in need of a great deal of support for the immediate future which ought begin as soon as possible. You had been assigned an Aboriginal aide to act as a tutor and mentor at the school, which Mr Purchase said was an excellent idea. He said, 'I fear that [Brent’s] impulsivity (and particularly in terms of his sexuality) is going to be a major problem'. He recommended that you be seen individually on a weekly basis for about the next two months, and that the primary focus needed to be on recognising other people's feelings and responding with empathy. He said that as soon as you started to grasp the concepts, he would consider stretching out individual sessions to once every two to three weeks and then hopefully the sessions could terminate. It is unclear as to whether in fact the recommended counselling and support occurred. Disturbingly, it appears that at the age of 13 years, you were already exhibiting behaviours and a lack of empathy, which resonate with your criminal offending including that before me.
131According to your counsel's written submissions you were subjected to extreme violent abuse by your father and to sexual abuse by a carer.
132In terms of your education, you told Mr Cummins that you moved around a lot, going to two different primary schools in New South Wales and the Australian Capital Territory then to high school in New South Wales as well as a technical school and then to a regional high school in Victoria where you were expelled. You had never been diagnosed with a learning difficulty, but you said you had been told there was something wrong with you.
133You left school midway through Year 10 when you were 16. You were then living on the streets and commenced abusing alcohol and substances.
134I understand you have had three long term relationships, with your most recent being with the victim. As previously stated, you have three children from this union who are now aged between one and a half and nine years.
135According to her Honour Judge Lawson's sentence in December 2017, you played rugby in the past and trained at boxing. You completed Year 10 at high school in New South Wales, then completed three and a half years of a four-year engine fabrication apprenticeship. You hold various licenses and industrial tickets which enable you to work in the mining industry.
136Returning to Judge Lawson's sentencing remarks, she had regard to a report from Ian McKinnon, forensic and consultant psychologist dated 23 November 2017, who had seen you at the Metropolitan Remand Centre on 15 September 2017. You told Mr McKinnon that your mother had mental issues and alcohol abuse issues, and that your father took over your care when you were aged 11. Judge Lawson (as she then was) said:
[53] ‘He is described as being a very violent man who would hit you with dog chains and you are very scared by the experience that you had living with him'. Your developmental history was adversely affected by physical abuse perpetrated by your father, and you lacked any positive parent figure during some of your formative years.
[54] Eventually, you were able to flee from your father’s care. At age 13 your grandmother took over your care ……….
[Relevantly at paragraph 55] Thereafter, you have at times lived on the streets. You were under the care of the Department of Health and Human Services and lived in various foster homes. Generally, your late teenage years were very disrupted by reason of your unsettled family situation.
[56] You no longer have any contact with your mother. You did try re‑engaging with your father but tragically he has not changed.' (Paragraphs 53-56 of Her Honour Judge Lawson’s sentencing remarks.)
137I was not provided with the report from Mr McKinnon, notwithstanding it appears Mr Jeffrey Cummins, forensic psychologist, was provided with it when he assessed you on 18 May this year. I have considered Mr Cummins' report dated 6 June 2023. Mr Cummins said that at interview you jumped from subject to subject, and at times you provided information which contradicted what was referred to in Mr McKinnon's report. He noted that Mr McKinnon had diagnosed you with PTSD and a polysubstance abuse disorder (alcohol and cannabis).
138You said that you had not spoken with your biological father since you were aged around 12-13 but were still in contact with your mother although she now had been diagnosed with blood cancer. According to your report to Mr Cummins, your brother was aged 32 and worked in the mines but you no longer had contact with him, which was possibly as a result of the offending where he was involved as your conduit. The report indicated that you had no contact with your sister, who has a degree in psychology according to you, and you do not have contact with your younger brother, who was undertaking a plastering apprenticeship. You thought that none of your siblings had been in any serious trouble with the law.
139You told Mr Cummins about being subjected to extreme domestic violence by your father saying you had to obey all his directions. You said sometimes if you did not do what he wanted you to, he would make you spend a whole night in the backyard.
140You said that when you were being looked after by a male carer when you were aged around 11, you were sexually abused, detailing the nature of this. You said that the only person you had spoken to about this was your lawyer at a private law firm, indicating you were making a claim in relation to being sexually abused whilst being a Ward of the State. I note that in the meeting record in 2002, there is mention of you being sexually abused by your stepfather. It is unclear as to whether this was an additional episode of sexual abuse that you told Mr Cummins about, or you regarded the carer as your stepfather, or whether you have different accounts in respect of the one episode which befell you when you were around the same age. I note that Mr Cummins regarded some of your accounts to him as contradicting those given to Mr McKinnon, however, this may well be a product of your mental health issues and the impact of substance abuse upon you over the years.
141At the further plea hearing, Ms Kennedy said that she had spoken with your mother in a bid to obtain a clearer timeline about events. She confirmed that you were living with your father between the ages of 11 and 13 years, and that initially at that time your mother moved back to live with your father but moved out as she was subjected to violence at his hands. However, although your mother left, you wished to stay with your father until, ultimately, you ran away, ending up in the care of your grandmother and subsequently into foster care. You then ran away due to punishments that you received in care, and you lived on the streets.
142You told Mr Cummins that you thought you first smoked cannabis when you were 12 and that it had been a problem for you since 2006. It appears that when you were about 16 you were using cannabis and consuming alcohol. You experimented with amphetamine when you were 18 or 19. You told Mr Cummins that you were told that Ice would clean the alcohol out of your system so that was how you got into Ice and GHB. You told Mr Cummins that over the recent years you had abused OxyContin, Buprenorphine and Suboxone. You acknowledged that you had a problem with alcohol, but had not consumed it for about one year before the offending against Ms Lethbridge in February 2022. You said that on that day you relapsed and had consumed two big shots of whisky and a few cans of Woodstock Bourbon. You said that at that time you were associating with people who were Ice users and, in relation to offending on 3 February 2022, you had smoked some Ice and had some GHB.
143You told Dr Borg, neuropsychologist, on 15 August this year that you had a bad upbringing. You said that your mother was always drunk when pregnant and you considered it likely that you had suffered in utero exposure because of this. You told Dr Borg that your father had a history of alcoholism and was violent. You said that you are the oldest child to your parents, with three younger half siblings (one of whom who was recently murdered) on your mother's side, and at least eight half-siblings on your father's side. When she asked you for further details regarding your childhood, you said that your memory was not very detailed – that there was 'a lot of good memory but I remember a lot of bad'. You referred to physical abuse at the hands of your father, including being cut with scissors and hit about the head. You spoke of running away from home and being homeless during early adolescence, then eventually being placed in a boys' home where you claimed to have been the victim of a rape by a male at the centre. After running away again, you said you were placed in foster care and stayed with your grandmother for various periods, although you acknowledged that you were frequently itinerant saying 'my family put up with a lot', referring to disruptive and aggressive behaviour that you exhibited during childhood.
144You gave an account to Dr Borg about your drug taking that was somewhat different to the account you gave to Mr Cummins.
145You told Dr Borg that you consumed alcohol at age 14 to 15 years, and you initially drank on weekends, but this escalated to a beer or two each day. By 2014 you said you were drinking nearly a slab per day. You said this was maintained until about five years ago. You confirmed abuse of OxyContin and Buprenorphine, asserting that this habit had stemmed from your last custodial term. You are currently on the Buprenorphine program at a dosage of 160 milligrams every three weeks. You told Dr Borg that your initial use of cannabis at the age of 15 was irregular. However, once you moved out of home there was a three-year period of daily use. You would smoke a quarter to half an ounce each time. After this, only occasional use occurred. You said that you started amphetamine use from when you were 18 years old and would take Speed and Ecstasy combined on weekends, although use of these drugs became more a habit involving you taking these daily for two and a half to three years. You said you would consume half a gram to a gram of Speed as well as 'a couple of pills' per day on average. You said that before incarceration you attempted methamphetamine, taking the drug with steroids for a three-month period.
146You said that these drugs contributed to your downfall and were a bad combination. You denied recent use of stimulants. You denied overdosing from drugs, saying that while you had passed out due to intoxication, this was never to a level where medical intervention was sought. Dr Borg noted: 'Experience of perceptual disturbance and paranoia when acutely intoxicated (namely, with methamphetamine) was indicated.'
147You told Dr Borg you wished to remain abstinent from drugs upon release from custody, as well as ceasing the Buprenorphine program, but you did not have any plan set out as to how to achieve this objective. You did not show any signs or symptoms to suggest you were acutely substance affected when interviewed by Dr Borg.
148Your counsel relied on general Bugmy considerations in your case in view of the evidence relied upon at the plea hearing, pointing to the neuropsychological report of Dr Borg and report of Mr Cummins, as well as the two 2022 documents to which I have referred. I understand that Ms Kennedy also relied on instructions obtained from your mother. Although there is a degree of inconsistency in your historical accounts as to what befell you and when, I accept that you have suffered childhood deprivation to a fairly substantial extent.
149It appears to me that there is a connection between the way that you have treated Ms Lethbridge, and the way you were treated by your father, as well as the way he treated your mother, and this occurring at a fairly formative time in your development. I give full weight to the matters put in respect of child deprivation and make some reduction in your moral culpability because of it and its connection with your offending. I will also make some reduction in the weight which would otherwise attach to general deterrence and punishment.
150However, the evidence from the report of Dr Borg and Mr Cummins is that you attract diagnoses of anti-social personality disorder with borderline personality traits and post-traumatic stress disorder. You do not have an acquired brain injury.
151Specifically in relation to Verdins’ considerations, Dr Borg said that you can appreciate right from wrong and make reasoned and informed choices, as well as exhibit adequate foresight to determine consequences of your conduct. She said:
'However, he is impulsive and has a long-standing history of emotional dysregulation and poor anger management, which is most aptly accounted by his personality structure. Hence, while he may exhibit many adequate decision-making skills from a cognitive perspective, his reactions will likely be unpredictable, aggressive and emotionally charged, particularly under situations of stress, perceived provocation or while acutely intoxicated – with the ability to self-reflect limited by a tendency to place blame onto others and downplay the seriousness of his conduct. With this in mind, Mr [Lafferty’s] anti-social personality disorder is considered a contributing factor in his offending behaviour, and likely compounded by acute intoxication'. (Paragraph 35).
152In light of the evidence to which I have referred, I accept that principles 1 and 3 in The Queen v Verdins are applicable to your case on the basis of Dr Borg's opinion in particular, and therefore make an allowance in respect of your moral culpability to reflect the contribution that your mental health issues played in your offending. As to how much your deprived upbringing played a part in your offending, as opposed to your mental health issues, it is difficult to say. It is not clear as to whether your mental health issues were caused by or contributed to by your substantially deprived upbringing. However, as your mental health issues were said to have contributed to your offending, I will make some reduction in your favour for this reason; but I also factor in that your acute intoxication likely compounded the effects of your anti-social personality disorder. In this regard, I note that you told Dr Borg that drug use contributed to your downfall and was a bad combination, which tends to suggest you had an awareness of the impact of drug use on your behaviour. Having said this, I have not treated your substance use as an aggravating factor.
153In view of Bugmy and Verdins considerations, and the matters to which I have just referred, I reduce your moral culpability to a moderate degree overall, and the weight which would otherwise attach to just punishment and general deterrence. However, I must still send a fairly strong message to others who are tempted to behave as you have that such conduct will not be tolerated. Further, your ongoing issues with mental health and the difficulties you have and will encounter due to your deprived background mean that I must give strong weight to protection of the community.
154In assessing your prospects of rehabilitation I have taken into account that you appear to have a fairly solid work history and you were working in the metal fabrication industry before incarceration.
155At the time of speaking with Dr Borg, you had held a unit billet until recently as at that time however, you had been placed in a management unit for involvement in a fight.
156I have also taken into account the certificates tendered on the plea hearing in relation to various courses you have completed whilst in gaol and I have factored in the letter from a psychologist, from Caraniche dated 24 October 2022, indicating your involvement in the drug and alcohol programs offered at the Melbourne Remand Centre. The letter indicates that you commenced individual counselling with Caraniche on 5 May 2022, and that you engaged in 14 individual counselling sessions as at 24 October 2022. The letter indicated your attendance had been inconsistent. However, you had engaged positively and expressed a desire to change in relation to substance use, offending behaviour, and engagement in society. I note that you recently made such expressions of a wish to turn things around, as conveyed by your counsel.
157If you are to succeed in this, it is very important, in fact imperative that your mental health and substance abuse issues are addressed intensively and in an ongoing fashion, and I will ensure that all relevant material including the sentencing remarks are provided to the prison authority so that your mental health and treatment needs are addressed whilst you are in custody and beyond.
158In view of the matters to which I have just referred but also in view of your offending before me, your relevant criminal history, your lack of genuine and insightful remorse, your ongoing mental health and background issues which likely will continue to impact you, as well as substance abuse issues, and Dr Borg's assessment of your risk of re-offending, I am afraid I assess your prospects of rehabilitation as rather bleak.
159I must place fairly strong weight on specific deterrence in all the relevant circumstances.
160I have also factored in that you have been in custody during the pandemic and that therefore you have endured a harsh form of custody for a substantial period due to the various restrictions in place.
161In sentencing you I have also had regard to current sentencing practice, noting that this is but one sentencing consideration and not a controlling one. I have also had regard to delay, the period during which you have had the anxiety of these matters hanging over your head.
162It is accepted by your counsel that your offending warrants a head sentence with a non-parole period. However, Ms Kennedy submitted that totality was a relevant consideration in your case, and I agree. The prosecution also submitted that nothing less than a head sentence with a non-parole period was appropriate.
163You fall to be sentenced as a serious violent offender on Charges 5 and 12 as you have prior convictions for making a threat to kill. This means there is a presumption of cumulation in relation to those matters and protection of the community is the primary consideration. It can mean that I may sentence you to a disproportionate sentence in order to protect the community however, in my view this is not necessary, and the principle of totality still applies. When sentencing you in respect of Charges 5 and 12, I will cause your status as a serious violent offender in relation to those charges to be entered into the court records and also record that you have been sentenced as a serious violent offender in respect to those charges.
164In your case, I have come to the view that cumulation to some extent is warranted in a number of the other offences allowing that in some instances there were a series of events on a particular occasion. However, each of the offences had their own separate impact in relation to the victim; having said this, in facilitating totality, I have decided not to direct cumulation in respect of all offences and have moderated the degree of cumulation that I might have otherwise thought appropriate in some instances.
165In view of all relevant matters in your case you are sentenced as follows:
166You are convicted of each of the offences on the indictments and of the summary matters.
167I make the disposal order sought by the Crown which is not opposed by you.
168You are sentenced to the following periods of imprisonment:
(a) In relation to the first indictment, I sentence you to the following periods of imprisonment:
(i)Charge 1 12 months
(ii)Charge 2 15 months
(iii)Charge 3 2 years 6 months
(iv)Charge 4 2 years
(v)Charge 5 2 years 6 months
(vi)Charge 6 4 years which will be the base sentence
(vii)Charge 7 4 years
(viii)Charge 8 3 years
(ix)Charge 9 4 years
(x)Charge 10 2 years 6 months
(xi)Charge 11 3 years 10 months
(xii)Charge 12 2 years 8 months
(xiii)Charge13 7days
(b) In relation to the second indictment, you are sentenced as follows:
(i)Charge 1 12 months
(ii)Charge 2 18 months
(c) In relation to the related summary offences, you are sentenced to:
(i)Charge 10 3 months
(ii)Charge 11 2 months
(iii)Charge 12 4 months
169As indicated the sentence on Charge 6 in respect of the first indictment, is the base sentence.
170In relation to the first indictment
171I direct that:
1721 month from the sentence on Charge 1
1733 months from the sentence on Charge 2
1746 months from the sentence on Charge 3
1756 months from the sentence on Charge 5
17612 months from the sentence on Charge 7
1778 months from the sentence on Charge 8
17812 months from the sentence on Charge 9; and
1799 months from the sentence on Charge 11
180Be served cumulatively with each other and with the base sentence, but that otherwise all other sentences imposed in respect of the first indictment be served concurrently, producing a total effective sentence in respect of this indictment of 8 years 9 months.
181In relation to the second indictment, I direct that 1 month from the sentence on Charge 1 and 2 months from the sentence on Charge 2 be served cumulatively with each other and with the total effective sentence from the first indictment, and that the sentences in respect of the summary offences be served wholly concurrently.
182This produces an overall total effective sentence of 9 years' imprisonment and I direct that you serve 6 years 9 months before becoming eligible for parole.
183If not for your pleas of guilty I would have sentenced you to 12 years' imprisonment with 10 years by way of non-parole period.
Pre-sentence detention
184I declare that you have already served 594 days by way of pre-sentence detention.
185Is there anything arising?
186MS PARKES: No, Your Honour.
187MS KENNEDY: No, Your Honour.
188HER HONOUR: All right. Did you want to speak to your client now?
189MS KENNEDY: No, I have arranged a call, thank you.
190HER HONOUR: All right, thank you. Yes, we will now adjourn.
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