Director of Public Prosecutions v Leighton
[2023] VCC 563
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 22-00726
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON LEIGHTON |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2023 | |
DATE OF SENTENCE: | 5 April 2023 | |
CASE MAY BE CITED AS: | DPP v Leighton | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 563 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of persistent contravention of family violence intervention order, causing injury intentionally, common assault and summary charges – matter resolved prior to trial commencing – intention to plead guilty early to resolved charges – prior criminal history – prior criminal history for contravening intervention orders – no evidence of remorse – delay – uncertain prospects of rehabilitation – arduous time in custody during the pandemic – totality
Legislation Cited:
Cases Cited:R v Cotham [1998] VSCA 111; Kalala v R [2017] VSCA 223; DPP v Baxter [2022] VCC 334; Newton v R [2021] VSCA 207; DPP v Reynolds [2022] VSCA 263; DPP v Hibbs [2023] VCC 142
Sentence: 31 months imprisonment. Non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster | Office of Public Prosecutions |
| For the Accused | Mr J. Portelli | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Mr Leighton, I propose to sentence you to a total sentence of 31 months' imprisonment. I will set a non-parole period of 20 months' imprisonment. I will declare your pre-sentence detention of 566 days (excluding today) as time served under my sentences.
2
Apart from an earlier mention hearing, the trial was listed on 8 March 2023. Since the complainant was unavailable, the trial was adjourned to the next day. On the next day, the prosecution in effect withdrew most of the charges, including
nine charges of rape. You pleaded guilty to three charges:
(a) One charge of persistent contravention of a family violence intervention order. The maximum penalty for this offence is five years' imprisonment;
(b) One charge of causing injury intentionally. The maximum penalty is 10 years' imprisonment;
(c) One charge of common assault. The maximum penalty is five years' imprisonment.
3There are five related summary charges.
4The circumstances of the offending appear in Exhibit A, the prosecution opening for plea. Through your counsel, you agree with its factual contents.
Circumstances
5In relation to charge 1, on 18 March 2019, a final family violence intervention order was made where you were the respondent and the victim is the protected person. The conditions of the order effectively prohibited contact between you and the victim.
25 April 2021
6On 25 April 2021, you were released from Ravenhall Prison. The victim picked you up in their vehicle and drove you to an address close by, where you met a woman in her garage. She gave you a syringe of methylamphetamine, with which you injected yourself. You tried to inject the woman, and when you could not, the victim volunteered to do so and then succeeded in injecting the woman. You then insisted the victim self-inject. The victim refused, saying they had to drive as they were to return to their residence. Acting out of fear of, and to placate you, they said they would inject themself when they returned home.
7Once home, both of you injected methylamphetamine before an argument ensued about drug use. The victim told you about choosing between the victim and drugs. You left the house. This breached the terms of the family violence intervention order, particularly as two conditions of the family violence intervention order were not to go within 200 metres of where the victim lived, and not to remain within five metres of them. This constituted particular 4 of Charge 1, a charge of persistent contravention of a family violence intervention order.
26 April 2021
8On 26 April 2021, you returned to the victim's unit. That evening, both of you consumed methylamphetamine which you had brought. The victim thought they had consumed 1.5 'points' of the drug, but once they had injected it, you laughed at them and told them they had just consumed 4 'points'. This constitutes particular 5 of Charge 1.
27 April 2021
9On 27 April 2021, the victim went with you to a medical appointment. They remained in the vehicle while you attended the appointment. When you returned to the vehicle you told them you had obtained a medical prescription for Viagra. You then told them you were going to get the script filled and would get more methylamphetamine. You stayed at the victim's house that night and both of you consumed methylamphetamine. This constitutes particular 6 of Charge 1.
28 and 29 April 2021
10The next day, both of you argued throughout the day. You took the victim's phone from them and told them they were not going anywhere as they initially refused to take any more drugs. Throughout the day, you sent eight text messages to the victim. This constitutes particular 7 of Charge 1.
11You remained at the victim's unit overnight, and eventually left the following day. Throughout the day, you sent 15 text messages to the victim. This constitutes particular 8 of Charge 1.
8 May 2021
12On 8 May 2021, you and the victim went to a café for a late breakfast, and then went into the city. You sent the victim four text messages. You returned to the victim's unit on this day. This constitutes particular 14 of Charge 1.
13While you were at the victim's unit, you became angry when the victim received a message from a male friend asking for methadone for their partner. You called the victim a 'cheating cunt' and stood over the top of them while they were on the couch. You punched them in the face and the victim could 'feel the blood coming out of my mouth'. You punched the victim at least five times, calling them a 'cunt' each time. This constitutes Charge 2, intentionally causing injury.
14You then pinned the victim to the couch and placed your hand around their neck so that they had trouble breathing. The victim could not scream but started kicking and wriggling trying to get free. The victim wriggled free enough to scream and you then put your hand over their mouth and said 'be quiet' repeatedly. The victim said they would do whatever you wanted if you let them breathe. They felt like they were 'going to die'. This constitutes Charge 3, common law assault.
15You then let the victim go so they could wash themselves. You apologised but said they should not have been talking to another man as they should know your 'triggers' by now. The victim told you they were in a lot of pain and asked you to take them to the hospital. You refused and then left to purchase drugs. After this, the victim and you used methylamphetamine.
16
In the early hours of the next morning, you offered them some methadone to
'help take the pain away' so they could sleep. The victim did not take it.
17On 30 April 2021, you sent 10 text messages to the victim. This constitutes particular 9 of Charge 1. The messages started when the victim noticed their bank card missing from their unit. The victim sent you a message stating they knew you took the card. You denied this in the text messages.
18On 2 May 2021, you sent two text messages to the victim. This constitutes particular 10 of Charge 1.
19On 3 May 2021, you sent 14 text messages to the victim and attended at their unit. This constitutes particular 11 of Charge 1. You brought drugs to the unit, and they consumed them together.
20On 5 May 2021, you and the victim went to Melton together to visit your friend. You and the victim consumed drugs together in Melton. This constitutes particular 12 of Charge 1.
21On 7 May 2021, you sent the victim two text messages. This constitutes particular 13 of Charge 1.
Police investigation
22On 9 May 2021, you left the victim's house to walk their dog. The victim's son visited and called the police. When the police attended you were not there. Later, you returned to the victim's house and stayed the night. This constitutes particular 15 of Charge 1.
23On 10 May, you went to get methadone and returned to the victim's unit before leaving again and returning late at night. You showed the victim messages you sent to a friend. You sent the victim four text messages. This constitutes particular 16 of Charge 1.
24On 11 May 2021, the victim left their unit and called police and advised you were inside the unit. Police attended and saw the victim with bruising under their left eye. They arrested you inside the victim's unit. You had sent four text messages to the victim that day. This constitutes particular 17 of Charge 1.
25On 11 May 2021, you were arrested and interviewed. Although admitting being with the victim, you denied the assaults.
26On 27 July 2022, you were granted bail. One of the conditions of your bail was to comply with the conditions of the existing family violence intervention order. Three days later, you posted on Facebook this statement:
'When you see this, you will realise you are a fool. I knew you were. Lol lies are lies unless it is in the County Court, then it is perjury. WHAT!!! DOG'.
27On the same day, and only minutes after the Facebook post, you posted on Facebook a photograph of prisoner visitor records between November 2017 and February 2019, which showed the victim's name. This publication contravened the family violence intervention order and also a conduct condition of your bail. These are the related summary offences where Mr Ruck is the informant.
28
On about 26 August 2022, you left the Leongatha region. You were arrested on
1 December 2022 in Oakleigh. As conditions of your bail, you were:
(a) required to report to the Leongatha police station daily. You did not do so on 103 occasions.
(b) You were required to undertake fortnightly urine screens. You did not.
(c) You were required to reside at an address as directed by ACSO or the Salvation Army. Again, you did not.
29The failure to report and the failure to undertake urine screens are what are called rolled up charges. They include more than one occasion of the offence.
Victim impact statement
30There is no victim impact statement.
Criminal history
31Between 1 March 1990 and 6 October 2020 excluding appeals, you have appeared in a criminal court on 24 occasions and been found guilty or convicted of 84 charges. You have been sentenced to imprisonment on 15 of those occasions. Your longest sentence was imposed on 8 February 2001 of six years' imprisonment with a non-parole period of four years' imprisonment for six charges of armed robbery and one charge of attempted armed robbery.
32You have four previous convictions for persistent contravention of a family violence intervention order. Also, you have 12 previous convictions for contravening family violence intervention orders.
33Plainly, you pay little or no regard to the existence of an intervention order affecting your behaviour.
Personal
34You are now 50. You are one of three children. Your childhood was relatively stable even though your mother had a problem with alcohol.
35Your parents separated when you were 13 and you continued to live with your father. Your father lives now in Queensland and your mother in Traralgon. You have contact with both.
36You completed Year 10. You undertook and completed an apprenticeship as an electrician. You worked as an electrician in your father's business.
37At 24, you were injured in a fall at work. You suffered physical and psychological injuries. Unfortunately, the medicine you took led ultimately to use of heroin.
38About that age, you formed a relationship with Rochelle. It lasted until 2015. You were both heroin addicts.
39In 2014, you were stabbed. You have overdosed on at least six occasions and attempted suicide.
40You met the victim in this case four or five months before you were sentenced for riot offences. Again, both of you were addicted to heroin.
41When you are released from custody, you intend to gain stable accommodation. There are several avenues open to you. You are assisted by workers at the Restart Program, being part of ACSO[1]. You intend to resume working as an electrician. I daresay employment in that field should not be difficult to find.
[1] Letter dated 20 March 2023 from Kim Howard.
Neuropsychologist
42Emily Zou was a neuropsychology registrar. During August and September 2021, she interviewed you on four occasions and reported[2].
[2] Report dated 24 September 2021.
43Ms Zou sought to clarify the level of your cognitive functioning and whether you suffered from a brain injury. She estimated your premorbid functioning fell within the high average range.
44Ultimately, she considered[3]:
'His current results showed largely preserved cognitive abilities. He performed at expectation for general verbal abilities, working memory, speed of thinking and visual memory. By comparison, his visuospatial skills were mildly reduced and in the average range. It is believed his performance in visual tasks were likely impacted by colour blindness and thus these results may have underestimated his true abilities.'
[3] At p6.
45She also considered your history of heavy substance use placed you at a risk of an acquired substance related brain injury. The self-reported history of head injuries (involving physical altercations, motor vehicle accidents and a crane fall) did not provide sufficient evidence to suggest a serious traumatic brain injury.
46The impact of your low mood, stress and attention deficit hyperactivity disorder were the most likely contributing factors underlying your reported cognitive difficulties.
Discussion
47In their own way, each of the offences for which you are charged engage the purposes of sentencing. At the forefront are your acts of family violence and your contraventions of a family violence intervention order. As I said, you take little or no notice of them. As long ago as 1998, the Court of Appeal were pointing out the need to ensure obedience of such orders. In R v Cotham, Charles JA said[4]:
'Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders'.
[4] [1998] VSCA 111 at [14].
48As to family violence generally, in Kalala v R, the Court said[5]:
'The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations'.
[5] [2017] VSCA 223 at [59].
49Again, in Kalala's case, the Court said[6]:
'General deterrence is of fundamental importance in cases of domestic violence… The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm'.
[6] At [61].
Guilty pleas
50It appears you were prepared to plead guilty to these charges before the committal hearing. The sticking points were the charges of a sexual nature. Since these charges are no longer being proceeded with, I consider your intention to plead guilty arose early in the process.
51
At present, most guilty pleas benefit the criminal justice process by creating space for trials which really need a jury's verdict. This benefit is enhanced now while this and other courts struggle to overcome the backlog of cases due to the unavailability of jury trials for several years. Your pleas entitle you to a
much-increased discount on the sentences you would otherwise receive if you had not pleaded guilty.
52Although guilty pleas are often seen as evidence of remorse, I do not consider these as evidencing your remorse. I do not consider you are remorseful. Your behaviour on bail is the opposite of evidence of remorse.
Delay
53There is another side. You have waited a considerable time for a trial where the charges were very serious, including nine charges of rape. You were kept in suspense over these charges for a long time. That is a mitigating consideration.
Prospects of rehabilitation
54You have a dreadful criminal history. You have a longstanding drug addiction. I do not know the extent to which you have overcome this addiction, if at all. You were given the chance of bail but failed. When you were last released from prison, you returned immediately to using drugs. Despite your plans for the future, there is little room upon which to conclude other than your prospects of rehabilitation are very uncertain, bordering on poor.
Time in custody
55Excluding today, you have spent 566 days in custody. The entire period has been spent under the restrictions due to the pandemic. There have been restrictions on movements within prisons, visits from relatives and friends. There have been restrictions on programmes and courses. Your time in custody has been more arduous than it would have been in normal times.
Current sentencing practices
56In relation to current sentencing practices, the prosecutor drew my attention to two cases in this Court and two sentencing appeals in the Court of Appeal[7]. I have considered each.
[7] DPP v Baxter [2022] VCC 334; Newton v R [2021] VSCA 207; DPP v Reynolds [2022] VSCA 263; and DPP v Hibbs [2023] VCC 142.
Totality
57I have applied the principle of totality in sentencing you.
Message
58The message mentioning $3,000 is equivocal as to its intent and I will disregard it.
Sentences
59On Charge 1, a charge of persistent contravention of a family violence intervention order, I sentence you to 15 months' imprisonment.
60On Charge 2, a charge of intentionally causing injury, I sentence you to 18 months' imprisonment.
61On Charge 3, a charge of common assault, I sentence you to 12 months' imprisonment.
62On Summary Charge 1 where the informant is Mr Ruck, a charge of contravening a family violence intervention order, I sentence you to three months' imprisonment.
63On Summary Charge 2 where the informant is again Mr Ruck, a charge of contravening a conduct condition of bail by contravening the family violence intervention order, I sentence you to one months' imprisonment.
64On Summary Charge 1 where Ms Balos is the informant, a charge of contravening a conduct condition of bail by failing to report to a police station on 103 occasions, I sentence you to six weeks' imprisonment.
65On Summary Charge 20 where Ms Balos is the informant, a charge of contravening a conduct condition of bail through your failure to provide two urine screens, I sentence you to four weeks' imprisonment.
66On Summary Charge 107 where Ms Balos is the informant, a charge of contravening a conduct condition of bail through your failure to reside at an address approved by ACSO or the Salvation Army, I sentence you to 14 days' imprisonment.
67
The sentence on Charge 2 is the base sentence. Six months of the sentences on Charges 1 and 3 and one month of the sentence on Summary Charge 1
(where Ms Balos is the informant) are to be served cumulatively upon themselves and the base sentence. The other sentences of imprisonment are to be served concurrently. The total effective sentence is 31 months' imprisonment. I will set a non-parole period of 20 months' imprisonment.
68I will declare the 566 days of your pre-sentence detention (excluding today) as time served under my sentences.
S 6AAA
69Absent your guilty pleas, I would have sentenced you to a total effective sentence of 46 months' imprisonment.
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