Director of Public Prosecutions v Le Fevre
[2014] VCC 803
•30 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-11-00594
CR-13-02320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| BROOKE LE FEVRE |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 April 2014, 6 May 2014 and 28 May 2014 |
| DATE OF SENTENCE: | 30 May 2014 |
| CASE MAY BE CITED AS: | DPP v LE FEVRE |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 803 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Cause serious injury recklessly – victim was husband – alcohol and drug abuse – serious attack with a knife – breach of suspended sentence – borderline personality disorder
Legislation Cited: Sentencing Act 1991
Cases Cited: Kaya v The Queen (2014) VSCA 55
Sentence:Suspended sentence restored. Plus three years and seven months imprisonment with a minimum parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Vella | Office of Public Prosecutions |
| For the Accused | Mr S. Pillai | Victoria Legal Aid |
HIS HONOUR:
1Miss Le Fevre has pleaded guilty to one charge on Indictment C13563910, a charge of cause serious injury recklessly, for which a maximum penalty is prescribed by Parliament of 15 years. That in itself indicates the seriousness of the charge which we are dealing with.
2The victim in this case was indeed her husband, Mr Russell Smith. The assault took place on the 23rd of December 2012 and, to say the least, she was grossly affected by a combination of alcohol and drugs. At the time of these events, Ms Le Fevre was 23. She is now 25, having been born on the 7th day of January 1989.
3The agreed circumstances were tendered by consent as the prosecution opening, Exhibit A, as I say, by consent of both counsel. They are clearly very concerning. They are the result of gross alcoholic abuse. The actual infliction of serious injury was preceded by assaults upon her husband in the car, committed in a dangerous manner with children present in the car, and indeed the charged events also take place at the home while the children are present.
4The crime itself was a serious attack with a knife. The photos of the injuries demonstrate that, as set out in Exhibit C. The injuries were treated as set out also in Exhibit B at the Northern Hospital and the report indicates the treatment involved. The stabbing itself involved at least two stabbings to the upper arm and legs, and then a further two stabbings to the buttock area.
5As a result of these stabbings, at the hospital, exploration and repair was required. This was necessary to ensure that the contents of the scrotum and the anterior abdominal wall were intact. The buttock wound also needed particular care to exclude any anal or rectal trauma.
6I simply re-emphasise the comments that I made at the time of the plea, that Ms Le Fevre, given the manner of attack upon your husband, you are fortunate indeed to be here, albeit facing this serious charge, and not a far more serious charge across the road. This is even more so when one looks at the site of your attacks, the implement used, and the medical treatment required thereafter.
7I accept that your husband has sought to have these charges dropped, or did seek, and indeed the reason, why he so sought, was that he wanted to be reunited with the family and for you to be able to take care of your children. These attacks, of course, are even more concerning when one comprehends that you were at the time undergoing a sentence from Judge Rizkalla handed down to you in April of that year, when you were convicted of a charge of recklessly cause serious injury which took place in October of 2010. Again, such injury involved the use of a knife, committed by you during a frenzy, with a numerous number of wounds to the upper legs and abdomen of the victim, and incomprehensibly while you were being assisted in such crime by your mother.
8The background to those assaults, as shown in Judge Rizkalla's sentencing remarks, was drugs and alcohol, combined with your diagnosed borderline personality disorder. As also noted by the Judge, you had pleaded guilty to previous violent offences. At the time that you were sentenced by Judge Rizkalla, you had a two-year old child, were eight months pregnant and were soon to be dependent at least on benzodiazepine, alcohol and probably Xanax. You appeared to have been part of a drug cocktail again on that night. It is important to make the point, albeit that this does have some relevance because of the breach, but at p.7 of those sentencing remarks it was said to the Judge, at that time, that you were no longer using alcohol and there had been a change in your circumstances. Unfortunately, that change did not last long because here we are in circumstances equally as serious, albeit not quite as deranged an attack.
9Her Honour, taking account of all the matters that were before her and despite the seriousness, wholly suspended the period of imprisonment she imposed of two years and four months for a period of three years. I dwell upon that because your plea brings with it also a determination to be made by the court insofar as your breach of that suspended sentence. Relevant time limits were agreed to be brought forward by your counsel, and that breach matter also has to be determined by me.
10However, the point I initially want to make insofar as this indictable offence is concerned is how concerning it is that you were involved in such an offence when you had so recently, only eight months before, been dealt with by Judge Rizkalla in such a lenient manner. It is to be pointed out that you were given a specific warning by Her Honour at p.9 of the remarks as to the consequences should you commit another criminal offence. As I say, eight months later here you are, having committed this serious offence.
11Of course, while prior offences, you have since been dealt with in the Magistrates' Court and subsequently by way of appeal for a further issue of violence. You were given ultimately a partially suspended sentence of 18 months, and you in fact served that sentence. That was the matter finalised before Judge Meredith.
12Insofar as this plea was concerned, there was no issue by your counsel that in the circumstances, given the seriousness of the matter, there was no alternative but for a period of imprisonment. Mr Pillai tendered on your behalf firstly the report of Dr Ong, psychiatrist, of March of 2014. In particular it is noted that during the period that you have been in gaol, perhaps for the first time, been substance free, and indeed there was tendered as Exhibit 5 clear urine samples in proof of same.
13Insofar as Mr Ong's report, I go to p.9 of that report where he noted you as being currently on remand and a 25-year old mother of two children. He notes the previous diagnosed borderline personality disorder which was accepted by Her Honour in her earlier sentence, and that you had had a long history of problematic substance abuse and dependence. Dr Ong determined that prior to these events you met the criteria for cannabis, alcohol, and benzodiazepine dependence or abuse.
14Dr Ong stated that it was clear in regard to this offence that you were in a particularly intoxicated state due to a combination of each of those, and that it unfortunately mimicked offences committed in your past. He noted what stands out as the real problem in your life: problematic substance use. The effects that that has with your difficulties with mood and anger management, the totality of all of those matters, was diagnosed by him.
15There was also tendered on your behalf by Mr Pillai the report of Dr Deacon, psychiatrist. That is the earlier report I think that was tendered for Judge Rizkalla, and I will not go to that. An additional report and an updated report of Mr Crewdson made up Exhibit 3. There were two reports essentially of
Mr Crewdson, one initially of 28 February 2011, and then a further report of 28 February 2012. Essentially Mr Crewsdon's report is confirmatory of the matters that I have spoken about in regard to Dr Ong, and in particular in his conclusion he was of the view that, associated with the psychological problems that I have spoken about, you suffer a degree of depression with anxiety and some dysthymic disorder, and problems of psychological isolation, together with your borderline personality disorder, with poor impulse control, as well as being a chronic polysubstance abuser.16The consequences unfortunately are so very obvious as to the totality of your problems. The violence that they produced has also been very obvious. However, as was stressed by Mr Pillai, you have over a period now of a considerable time that you have been in gaol, some 15 months, demonstrated a considerable change in your life. The documents as to the courses that you have undertaken are meritorious as are set out at Exhibit 4, and as I said, so are, considering your abuse by way of alcohol and drugs history, the clear urine samples that make up Exhibit 5.
17What was stressed was that you still are a mother of two relatively young children and that you have now had some two Christmases away from them. It is clear that after Judge Rizkalla sentenced you that you did not, as you indicated, undergo appropriate counselling or any appropriate treatment, leading to current criminality. As I said, you are fortunate that you are here and not across the road, given the ferocity of this attack.
18You know, so I am told, and I have seen your letter and I have read it again insofar as the exhibits are concerned. You express in that letter, which is Exhibit 6, your remorse. You indicate that you, now having lost your freedom for so long, you are well aware of the problems in your life and the need for you to take steps. You ask me to end your suffering and say that you would do anything and everything to stay out of gaol and trouble, and that your experience over the last 15 months has led you to fully appreciating the problems in your life.
19Ms Le Fevre, all I can say is that you have said that before, but there will not be another time. The next time you come back to this Court, if you do, you will be subject to a considerable sentence. The consequences, of course, of this particular offence to which you have pleaded guilty mean, as I have said, that you breach the order of Judge Rizkalla which was to fully suspend the previous sentence for the reckless inflict injury. Mr Pillai was at pains to stress your plea and that upon the principles set out in the case of Kaya v The Queen (2014) VSCA 55 not only do I have to restore the sentence, as required by the legislation, but that I should remember that essentially I have to treat both sentences in this one proceeding and be aware of that and certainly try to moderate the sentence if it is possible. At no point did Mr Pillai try to resile from the seriousness of your offending.
20It would be inhumane of the Court not to comprehend the problems that you have had as a mother in the last 15 months, in that you have not been able to care for your children; however, the reason for that is obviously clear, and that is your own actions. Despite all of the matters put on your behalf and the medical information that I have referred to, one still has to balance that material against the need for an appropriate sentence for such a serious attack committed upon your husband.
21I also take into account your husband’s desire that these proceedings not proceed; however, that was impossible given the severity of the attack.
22Doing as best I can and taking into account all of the matters that I have referred to, in particular realising that you are still a relatively young person and have the responsibilities as indicated. You have the support of your family, as is demonstrated again today.
23I have determined for the offence in the indictment to sentence you to a period of imprisonment of two years. As to the breach of the suspended sentence, I find that matter proved, and pursuant to the legislation you will be required to serve that sentence of two years and four months. However, in giving consideration to the totality of that sentence, I have determined despite the provisions of 83R of the Sentencing Act 1991, that only a period of one year and seven months should be cumulated upon the sentence that I have passed on you in the indictable matter. So that of the two years and four months sentence that would otherwise be served cumulatively, and immediately after your other sentence, I have determined that the period that should be served is an additional one year and seven months.
24That makes a total aggregate period of imprisonment of three years and seven months. Insofar as that aggregate sentence is concerned, the minimum period that you will serve before being eligible for parole is a period of two years. Pursuant to the provisions of s.18 of the Sentencing Act 1991, I declare that the 432 days that you have served be deemed as service of this sentence. As I understand, that is roughly 15 months, so the additional period you will be required to serve is two years.
25Insofar as making a declaration under s.6AAA, in the particular circumstances of this case I find it particularly difficult. However, suffice to say that had you not pleaded guilty the penalty imposed upon you would have been of the order of five years with a minimum of three years by way of aggregate.
26Mr Prosecutor and Mr Pillai, are there any other matters that I need to attend to?
27MR VELLA: Your Honour, I understand there was a disposal order sought.
28HIS HONOUR: I think I might have already signed that, did I?
29MR VELLA: Thank you, Your Honour.
30HIS HONOUR: You will have to work the figures out, but roughly it is another nine months to serve. How many months have been served to date?
31MR PILLAI: She has 432 which is, as Your Honour has indicated, about 15 months, so about that, yes.
32HIS HONOUR: Two years as the minimum.
33MR PILLAI: Yes, thank you, Your Honour.
34HIS HONOUR: Thank you. Good luck.
35OFFENDER: Thank you.
36HIS HONOUR: Take the prisoner away.
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