Director of Public Prosecutions v Lees
[2021] VCC 408
•9 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00663
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER LEES |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2021 | |
DATE OF SENTENCE: | 9 April 2021 | |
CASE MAY BE CITED AS: | DPP v Lees | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 408 | |
REASONS FOR SENTENCE
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Catchwords: Family Violence – Drug use – Aggravated burglary - Common assault - Causing injury intentionally – Persistent contravention of a Family Violence Intervention Order – Two separate incidents – Relevant criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P. D'Arcy | Office of Public Prosecutions |
| For the Accused | Mr B. Lindner | Paul Vale Criminal Law |
HIS HONOUR:
1
Peter James Lees, you have pleaded guilty to two charges of aggravated burglary. Aggravated burglary is a very serious offence carrying a maximum penalty of
25 years imprisonment. You pleaded guilty to one charge of common assault which has a maximum penalty of five years imprisonment, three charges of causing injury intentionally which each carry a maximum penalty of 10 years imprisonment, and one charge of persistent contravention of a family violence intervention order which has a maximum penalty of five years imprisonment.
2The circumstances of your offending are set out in the Prosecution Opening on plea dated 15 March 2021 which was tendered as Exhibit A on your plea and forms part of these reasons for sentence. From the outset it is necessary to highlight that all of your offending is considered as family violence and is deeply concerning, being examples of persistent violent offending against a female, offending against one victim, being your ex-partner.
3You first met your victim in 2015 through another party who supplied you both with drugs. At the plea, your relationship was characterised by the Prosecution as on and off again and by your counsel as tumultuous. Whatever the characterisation, you displayed a pattern of behaviour which exerted power and control over the victim through psychological and physical violence. The relationship ended in March 2018. Your offending, on the indictment, commenced in August of the same year. The seven charges subject to this sentence found across two protracted incidents of violence which I will now detail.
Circumstances of Offending
4On 5 July 2018, an Interim Family Violence Intervention Order (FVIO) was made by the victim against you with the exclusion condition that you not go within 200 metres of her and do not perpetrate any further family violence against her.
5On 24 August 2018, the victim was residing at her home in Mulgrave. At approximately 9pm, after she returned home from shopping, she noticed that her dog was not present in the house. It was her suspicion that you had taken the dog in response to her ending the relationship with you. These suspicions were confirmed when you arrived at her home with the dog and asked to come into the house because you did not have a key.
6Your victim refused you entry, to which you began yelling to be let in. She told you she had called the police. You continued to yell and said that you were sorry for what had occurred in the relationship and you wanted to talk things over.
7After some additional pleading, you retrieved a metal pole from the front garden and smashed the victim's bedroom window, lifting the window and gaining entry to the home. Upon entry, you jumped onto the victim as she was sitting on her bed. As you landed on the victim, you pinned her right arm behind her and her left arm was trapped between your legs. You began assaulting her. During the assault, you gauged her left eye with your finger causing her pain (Charge 2, common assault).
8To protect herself from your assault, she grabbed your testicles. You responded by ceasing your assault so she would release you. However, despite her letting go with the agreement you would not strike her again, you continued to sit on top of her and shortly resumed assaulting her and making threatening remarks. She retrieved a pair of scissors which had been pinned behind her back, however, as you had your entire weight bearing on her, she could remove them from behind her back.
9Upon seeing the scissors in her hand, you said, 'You were going to stab. You think you're going to stab me. Guess what?'. You then grabbed the scissors from her hand and sliced her thumb (Charge 3, causing injury intentionally). Your assault on the victim was unceasing. As you brought her to the floor next to the bed you were kicking her, abusing her, threatening her, at one point you called her ‘a whore, a piece of shit, worthless and a dirty slut’ as you kicked her to the head and ribs. That represents Charge 3, causing injury intentionally.
10Her ordeal did not end there. You continued for some time. At 7am in the morning you wanted another can of bourbon and coke which you had been drinking. You opened a new can and went to the toilet. Your victim seized the opportunity and fled out the front door with her dog in tow, carrying her bag. You called after her, saying that you needed to talk. She ran to a nearby home, hid her bag and retrieved her phone and keys from it. She then returned to the house to see if you were still there. She took down the registration of your car and rang police.
11The police attended. An ambulance was called for your victim and she was taken to Dandenong Hospital. Medical records show that she had sustained a laceration to her left finger and a small scalp haematoma on her right scalp. She also reported scalp tenderness and rib pain. After this episode, your victim stayed with her daughter and her daughter noticed that her mother could not move freely and was in significant pain. She had pain all over her body and some bruising and swelling to the head area.
12The second incident of offending occurred on 8 October 2018 when your victim as staying at her new residence in Clayton, which she had moved to in an effort to avoid you and the violence you had perpetrated against her. At about 12.30pm, you began banging on her front door, yelling to be let in. She immediately recognised your voice of course. You then made your way along the side of the property by unlatching the side gate. She responded by calling the police and fleeing into her bedroom and hiding behind the door. In a repeat of your August offending, you broke the window next to the side entrance of the property which led to the laundry. That is Charge 4, the second incident of aggravated burglary and part of Charge 7 also.
13Your victim was on the phone requesting police assistance by the time you entered the bedroom. Your first actions were to snatch the phone from her hand, disconnect the call and commenced punching her hard all over her body, that is Charge 5. You also kicked her in the head and stomped on the side of her face. The victim describes you, in her statement to the police, as ‘going crazy’.
14During your assault, you constantly berated her, calling her a slut, accusing her of having sex with previous partners and threatening her. She curled up in a ball to protect herself. Your conduct escalated. You grabbed a pair of scissors and stabbed her to the top of the head (that is Charge 5, attempt to causing injury). That has resulted in a large amount of blood found on the bedroom wall, door and carpet.
15You further humiliated your victim and abused her. You decided that she should give you some of her disability pension payment and there was discussion about that. You took her to the car. You retrieved her handbag and keys. She felt helpless at the time. You drove to Springvale North, trying to find a park. This was for the purpose of her accessing a disability pension payment.
16You stopped on the left-hand side of the road. You had parked in such a way which blocked traffic on the road. Another motorist honked his horn to indicate that you should move off the road and as you responded by turning to view the car, the victim was able to break free and fled to the post office located at 124 Police Road.
17When inside the post office, your victim asked the attendant if she could withdraw money but also asked for her to call the police. You entered the post office shortly after and remarkably, despite being in full view of everyone, you grabbed the victim around the neck and began punching her to the head, causing her to bleed. This is Charge 6, intentionally causing injury. You then pushed the victim over and she fell to the floor.
18This episode of naked violence in public by you demonstrates your attitude and psychological state at the time in relation to your victim. It is an abhorrent example of violence against women. You subsequently fled in her car.
19The medical report prepared by Dr Janine Rowse outlines the extent of her injuries as a result of your violence. They include bruises and abrasions across multiple locations on her body, particularly severe bruising to the face. Incisions on her face, shoulder, arms and buttock which was sustained due to multiple blunt and sharp force attacks. A deeper cut on the scalp from the stabbing with scissors was also identified. The true extent of that injury could not be ascertained as it has already been treated by glue when examined by Dr Rowse.
20Your vehicle was seen by your victim's daughter outside the Clayton property the next day. That is part of Charge 7, persistent contravention of a family violence order.
Arrest and Record of Interview
21You were arrested on 11 October 2018 and were interviewed by police. You made admissions that you were at the victim's house on 8 October 2018 but denied that you smashed the side window to gain entry or that you forced the victim to attend the post office to withdraw money for you. Your phone was examined by police that day and they found you had texted the victim on 9 and 10 October 2018. That also forms part of Charge 7.
Personal Circumstances
22Turning to your personal circumstances. You were born on 3 September 1977 and were aged 40 at the time of your offending. You are now aged 43. You have an older brother Ray and sister Karen who wrote a letter which was relied upon in the plea, two half-brothers, one of which is deceased and a half sister.
23You grew up in St Kilda. Your father was a tow truck driver and a labourer. Your mother was a nurse and undertook home duties. I was told that both parents were alcoholics and often your older sister Karen would look after you. I accept that your early childhood was one of some deprivation. Whilst your parents fed you, as you say, and cared for you, they had their problems, perhaps typified by at the end of the school day when you were at St Kilda Primary School you would have to go to the hotel to find your parents.
24You told Ms Maynard, the clinical psychologist whose report of 15 March 2021 was tendered on the plea and the contents of which I accept, that whilst your parents gave you adequate care, you lacked a fair bit of guidance and were often left to your own devices which often had negative consequences. I accept those matters.
25You attended Elwood Secondary College until part-way through Year 10. You then went to Windsor Technical School and began working odd jobs at the Prahran Market the following year.
26You also began using cannabis around this time. In January 1998, tragically, your mother passed away from cancer. You were 18. Your father died the following year from a stroke. Understandably, you did not cope well with their deaths and resorted to drug use, particularly heroin, to block out your grief. I accept that, given your background and your childhood experiences in these circumstances, particularly the circumstances of your parents' untimely death, that you were vulnerable to drug use and that drug use has been a major factor in yourcriminal offending over the years. I accept the sentiments expressed by your sister that prior to descending into heroin addiction, you were working and, absent addiction issues, at that time and times since have shown that you are able to be a caring and reliable individual.
27In 2006, you sustained a serious back injury while working as a furniture removalist and you lodged a Workcover claim as a result. In 2007 you were assaulted with an iron bar by your ex-employer and his associate, seemingly in response to you lodging the Workcover claim, and you sustained serious injuries to your head. In March 2008 you were placed on a disability support pension which you continued to receive up to the time of your arrest.
28In 2009 you were assaulted with a house brick, being struck to the face, beaten and robbed by three men. You required 57 stitches to your right eye and five to your back. These assaults and injuries have had consequences for you in your functioning since.
29Turning to mental health and drug use. You told Ms Maynard that your drug use escalated into your late 20s. This included over-medicating on prescription drugs such as Xanax and Mogadon which you were prescribed after sustaining the back injury at work, which I have mentioned.
30You have been prescribed Methadone over the past five years, which you ceased in September 2019. At the time of your arrest you were drinking alcohol daily whilst also harbouring an ice addiction. You have a complex psychological state. You suffer Attention Deficit Hyperactivity Disorder (ADHD), which is medicated with dexamphetamines. Your illicit use of Ice no doubt exacerbates that condition or the consequences of it, such as poor impulse control and poor consequential reasoning. You show symptoms of Post-traumatic Stress Disorder (PTSD). You are currently prescribed the antidepressant Avanza.
Criminal History
31You have a criminal history that is relevant to the exercise of my sentencing discretion in many ways.
32In 2011 you commenced another relationship which resulted in family violence related offending, including; recklessly causing injury, failing to answer bail, burglary, theft, criminal damage, and possession of a firearm to which you were sentenced in 2013. You told Ms Maynard that you felt betrayed by your ex-partner, however, you showed some insight by stating that your behaviour may have been more aggressive than you cared to realise at the time. You have an extensive criminal history with related offending for burglary and family violence.
33You have demonstrated an ability to obtain employment in various fields, however, due to injury, drug use or misfortune, you have been unable to achieve long-term employment. Your period on remand has been your longest stint in custody thus far and you have experienced it in the COVID environment and I accept that that has been a period which is clearly in many ways more difficult and restrictive than in other times . A journal authored by you and tendered as Exhibit 8 on your plea demonstrates that the COVID-19 lockdown conditions in custody have been a stressor for you and I take this into account.
34You currently work as a billet in the Melbourne Remand Centre cleaning gym equipment daily. You have also completed courses whilst in custody for peer education, cleaning, healthy lifestyle choices and substance abuse. I am satisfied you have an evident support network by way of your older sister Karen in particular who provided a helpful letter of support to your plea tendered as Exhibit 6. You have also shown in custody a commitment to rehabilitation, although, due to your antecedents, I am cautious and guarded about your prospects for rehabilitation once you return to the community and the stresses that may flow for you, particularly in relationships.
35I have noted that you reduced methadone until ceasing altogether in September 2019. You were prescribed Avanza. You are a peer educator. The courses you have done in prison demonstrate some commitment to rehabilitation. I was told of the negative urine sample results in the certificates dated that are set out in the helpful defence submissions filed by Mr Lindner at p.7.
36Generally, whilst I do not consider your prospects are forlorn, far from it, as I have indicated, I do not adopt Mr Lindner's submission that you have reasonable prospects of rehabilitation. There are signs there that you have taken things seriously and are trying to address your problems but you are someone who needs considerable support on parole in order to address the principle issue which is your tendency to be violent towards a partner.
37It is clear from the circumstances of your offending that it is a serious and grave example of family violence. Violence against women can be characterised in a number of ways. As I mentioned to your counsel during the plea hearing, the cycle of violence demonstrated by your behaviours is of grave concern. Your history indicates that you resorting to this type of violence has not only been repeated within one relationship but on other occasions as well in other relationships.
38This pattern places you in a category of someone who is a risk to women who are your intimate partners and I am not satisfied that you have full insight into that issue. It is an issue that you are going to have to have addressed. You need treatment and therapy in relation to it but you also need to be specifically deterred.
39Your behaviour fits the pattern of controlling, abusive and violent conduct that is far too prevalent in our community. Your inability to control your tendency in this way means you pose a great risk to women in our community.
40There was a theme in the plea made on your behalf that this was a tumultuous relationship characterised by drug use with violence flowing as a result of those factors. As I have stated, your criminal record and the facts of this matter demonstrate that you have a deep-seated problem in a relationship setting. Your propensity to resort to family violence at a very disturbing level is of great concern to the community. Your counsel understandably and fairly relied on text messages of apologies that followed episodes of violence. As I pointed out at the time, that sort of cycle falls within the pattern that I have just described.
41Your deprived background, and I would use that phrase acknowledging that it is inadequate to sum up the complex set of factors, both personal to you and externally experienced as a child growing up and then into teenage years and into your early 20s. That background is relevant to my assessment of your moral culpability. You had poor role models growing up and the trauma and deprivation of that experience made you vulnerable to things such as drug use. However, as I have stated, there are other aspects I have to look at, including your prospects of rehabilitation, of which I am guarded. Specific deterrence-as I have stated, I must impose a sentence that specifically deters you from engaging in this type of conduct in the future. I also have to impose a sentence that denounces your conduct and one that reflects general deterrence as an important factor. I also must have regard to totality and the sentences I impose have been imposed with the principle of totality firmly in mind.
42I accept that your pleas of guilty are significant matters in mitigation. There is a utilitarian value to it, in particular resolving this matter meant that your victim did not have to endure perhaps days of cross-examination over two lengthy episodes. It was estimated to be a 10-day trial at one point. But I am satisfied that, across all the materials - and I am referring to, in part, the letter that you authored that was relied on, your sister's letter, the psychological material and submissions of your counsel and the resolution and some of the other materials in the evidence which have been mentioned - that you have some remorse, qualified remorse I will put it at. You lack full insight, as I have stated.
43The Prosecution very fairly and significantly, given Mr D'Arcy's experience, conceded the plea of guilty to the August matters in particular, as very significant because of the state of the evidence in that regard. But overall, the concession was made that the nature of this matter was that it took some time to resolve, that there were offers made and they take some time to work through. When I assess all of those matters, I have regarded the discount available to you as a result of pleading guilty to these matters as significant. In particular, resolving a trial of this nature within the COVID pandemic where trial lists, to put it mildly, are in a state of crisis.
44
I stress that you are not to be sentenced for uncharged acts. There is a narrative in these sorts of matters that the Prosecution relied upon but discussion was had at the plea. Matters were submitted in writing in Mr Lindner's defence submissions which I accepted and there was further discussion on the plea of those and
Mr D'Arcy stated the Prosecution's position. I do not need to go into that. It is safe to say that you have only been sentenced for the charged acts and those charged acts have not been aggravated as a result of uncharged acts that are disputed.
45It was urged upon me that a longer than usual period of parole would be appropriate in your case and my understanding of the Prosecution submissions is that that was not something that submissions were made against.
46As I observed at the plea and I have observed again in these sentencing remarks, there is a community interest in my deterring you and deterring others for which sentences of some length must be given, but of also endeavouring to break the cycle and have you, with the support of parole, engage in programs which will hopefully give you greater insight but also mechanisms and strategies to deal with your impulse control, particularly in the context of those psychological factors I have referred to such as ADHD and PTSD.
Sentence
47I sentence you as follows, Mr Lees.
48In relation to Charge 1, being a charge of aggravated burglary, I sentence you to three years imprisonment.
49In relation to Charge 2, common assault, you are sentenced to 12 months imprisonment.
50In relation to Charge 3, intentionally causing injury, 15 months imprisonment.
51In relation to Charge 4, aggravated burglary, three years and nine months imprisonment.
52In relation to Charge 5, causing injury intentionally, 18 months imprisonment.
53In relation to Charge 6, causing injury intentionally, 18 months imprisonment.
54In relation to Charge 7, persistent contravention of family violence intervention order, eight months imprisonment.
55I make the following orders for cumulation. The sentence in respect of Charge 4 will be the base sentence; in relation to Charge 1, one year of the sentence imposed on Charge 1 will be cumulative on the base sentence; three months of the sentence imposed on Charge 2 will be cumulative on the base sentence; three months of the sentence imposed on Charge 3 will be cumulative on the base sentence; six months of the sentence imposed on Charge 5 will be cumulative on the base sentence; and six months of the sentence imposed on Charge 6 will be cumulative on the base sentence. Just to be clear, not that I need to state it, but all other sentences are concurrent.
56That makes a total affective sentence of six years' and three months imprisonment. I set a non-parole period of three years and nine months imprisonment. So, it is three years and nine months before you are eligible for parole.
57Pursuant to s.18 of the Sentencing Act I declare that you have served 911 days of presentence detention, not including today, have been served.
58
Pursuant to s. 6AAA, normally I just simply state the figures, Mr Lees, but had you run a trial over these matters which would have necessarily involved lengthy
cross-examination and further traumatisation of your victim, it would have also necessarily caused me to have a very different view and make a very different assessment of many of the matters I have discussed, and if you were convicted, I would have sentenced you to nine years imprisonment with a non-parole period of seven years.
All right, are there any other orders that are sought?
MR D'ARCY: Your Honour, I'm puzzled. My maths is - - -
HIS HONOUR: Have I made a mathematical error?
MR D'ARCY: No, I don't understand it, Your Honour. The base sentence of Count 4 was nine months.
HIS HONOUR: Three years and nine months.
MR D'ARCY: I'm sorry, that explains it.
HIS HONOUR: The hearing problem. Maybe I'm mumbling. Three years and nine months. No, sorry.
MR D'ARCY: That would make sense, yes.
HIS HONOUR: Yes, look, so the total affective sentence on my calculation, given those orders for cumulation - - -
MR D'ARCY: No, that would now make sense. I understand.
HIS HONOUR: - - - six years and three months. Non-parole period of three years and nine months. 911 days served.
MR D'ARCY: Yes. Yes, I only got the nine months, Your Honour.
HIS HONOUR: They're my sentencing reasons. Mr Lees, it's probably not possible to indicate when you'll be eligible for parole. Your counsel Mr Lindner will be able to give you some idea, but as I understand it, there might be emergency management days and those sorts of things which make it not simply a mathematical calculation. But what I do want to say to you is, when you are released on parole, make every effort you can to address your drug issues, but in particular, your issues relating to impulse control and violence, because it's not tolerated and this is the longest sentence you've served and you know what would happen if you're back again for similar offending. Yes, we'll adjourn the court.
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