Director of Public Prosecutions v Levy (a pseudonym)
[2022] VCC 1032
•30 June 2022
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SETH LEVY (A PSEUDONYM) |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 27 June 2022 | |
DATE OF SENTENCE: | 30 June 2022 | |
CASE MAY BE CITED AS: | DPP v Levy (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1032 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — common law assault — false imprisonment — make threat to inflict serious injury — make threat to kill — contravene family violence intervention order — commit indictable offence whilst on bail — trespass — enter private place without authority or excuse — plea of guilty — family violence — pregnant victim — pregnancy — family violence intervention order — early plea — COVID-19 — criminal record — criminal history — moral culpability — violence against women — general deterrence — denunciation — specific deterrence — community protection — rehabilitation — parsimony
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of two years and 10 months with a non-parole period of one year and 10 months
Section 6AAA declaration: total effective sentence of four years with a non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr R Bhattacharya | James Dowsley & Associates |
HER HONOUR:
1Seth Levy,[1] you have pleaded guilty to one charge of common law assault, for which the maximum penalty is five years’ imprisonment, one charge of false imprisonment, for which the maximum penalty is 10 years’ imprisonment, one charge of making a threat to inflict serious injury, for which the maximum penalty is five years’ imprisonment, one charge of making a threat to kill, for which the maximum penalty is a term of imprisonment of 10 years, and one charge of contravention of a family violence order knowing your conduct would cause fear or apprehension, for which the maximum penalty is a term of imprisonment of two years.
[1] A pseudonym.
2You have also pleaded guilty to the summary offences of committing an indictable offence on bail, for which the maximum penalty is three months, and trespass, for which the maximum penalty is six months.
3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’ which fully sets out the facts and circumstances of your offending.
4In brief, the circumstances of your offending were as follows. The victim in this matter is Alice Holden.[2] You and Ms Holden had been in a relationship. You had a two-year-old son and Ms Holden was 25 weeks pregnant with your second child.
[2] A pseudonym.
5On 17 May 2021 at the Bendigo Magistrates’ Court, a final family violence intervention order was granted with you listed as the respondent and Ms Holden and her son listed as the protected persons. The intervention order prohibited you from communicating with Ms Holden by any means, from approaching or remaining within 5 m of her, and from going to or remaining within 200 m from any place where she lives. This intervention order was served on you on 25 May 2021 and is active until 16 May 2024.
6On the evening of 16 July 2021, notwithstanding the intervention order, you went to Ms Holden’s home. Ms Holden was at home with your son and a friend, Rosanna Mora.[3] There was an incident between you and Ms Holden which is not part of this proceeding but will be dealt with at the Magistrates’ Court in the not too distant future. You stayed the night. On the following day, you took a shower at Ms Holden’s home. She took this opportunity to leave with her son and her friend and go to the police and notify police of your contravention of the intervention order.
[3] A pseudonym
7At approximately 7:30pm on 17 July 2021, you were arrested at Ms Holden’s home and taken to the Bendigo police station and charged. You were bailed to appear before the Bendigo Magistrates’ Court on 11 October 2021 and were released from the Bendigo police station at 11:35pm.
8You promptly got in a taxi and headed straight back to Ms Holden’s home.
9Ms Holden, learning you had been bailed, went to a friend’s home, taking her son. She stayed the night there. The following day at around 3:45pm, Ms Holden, her son and her friend Ms Mora returned to her home address, hoping to find you gone.
10They remained out the front of the address for approximately an hour, attempting to determine from the outside if you were still inside. At approximately 4:45pm, Ms Holden and Ms Mora approached the front door. Ms Holden entered the house while Ms Mora remained at the front door, holding the flywire door open in case her friend had to run out.
11Ms Holden searched the house and came to the conclusion you had been there but had left. She began walking down the hallway towards the front of the house. As she passed her unborn child’s bedroom, you opened the door (summary charge — trespass) and leapt out and grabbed Ms Holden with one hand while holding a hammer in the other.
12Ms Mora meanwhile ran off to get police assistance.
13You locked the front door and dragged Ms Holden back into the lounge room. You punched her in the face, causing her lip to split and bleed (charge 1 — common law assault). You stated to her, ‘If she [Ms Mora] calls the cops, I’m going to stab you’.
14You forced Ms Holden to sit on the lounge room floor while you went into the kitchen to retrieve a knife. You returned to the lounge room in possession of a large stainless steel kitchen knife with a black plastic handle (charge 5 — contravene family violence intervention order).
15You demanded cigarettes from Ms Holden, who told you she might have some in the car. You took her by the hair in one hand and held the knife in the other. You marched her down the hallway and stopped at the locked flyscreen door. Ms Holden was calling to Ms Mora, asking her to get you cigarettes. When Ms Mora did not respond, you walked Ms Holden to her car, still holding her by the hair, with the knife in your other hand.
16You were on the front landing when police arrived. You became enraged at Ms Holden, stating, ‘You’re fucked now’. You dragged her back inside the home and attempted to lock the flyscreen door. Ms Holden held on tightly to the flyscreen door handle while screaming out to police. You began pulling her back into the house against her will by her hair and clothes with such force that her shirt was torn off and the bra she was wearing was damaged (charge 2 — false imprisonment).
17During the course of these incidents, in the lead-up to police arriving, you made threats to Ms Holden, stating you would ‘kick her baby out of her’, you would stab her, and you would come back with other people and shoot her (charge 3 — make threat to inflict serious injury, charge 4 — make threat to kill).
18When police attempted to enter the house, you shouted that you had a knife, as a consequence of which police deployed capsicum spray to free Ms Holden and arrest you.
19You were interviewed by police and stated:
· you returned to Ms Holden’s residence immediately after getting bailed the evening prior;
· you got there by taxi from the Shell service station near the Bendigo police station;
· you knocked on the front door and bedroom window for approximately 15 minutes before Ms Holden answered the door;
· Ms Holden cried and apologised for calling police;
· you remained at Ms Holden’s address, talking for nearly a whole day before police ‘rocked up’;
· you wanted to get your clothes and go but Ms Holden asked you to stay; and
· you got angry because Ms Holden ‘was trying to run to youse like it was a murder scene’.
20You were remanded in custody to appear at the Bendigo Magistrates’ Court on 13 October 2021.
21You pleaded guilty at a committal hearing on 16 March 2022 before any evidence was called. This is an early plea which has significant utilitarian value in the context of the ongoing delays in the administration of criminal justice in this State caused by the COVID-19 pandemic. I take your early plea of guilty into account in sentencing you, and I give it the full mitigatory weight which attaches to it as discussed in the case of Worboyes v The Queen.[4]
[4] [2021] VSCA 169.
22It was not submitted by your counsel, Mr Bhattacharya, that your plea was indicative of remorse. Properly so, given your lies to the police, and persisting with this false account when you were interviewed by Ms Laura Fleming, forensic psychologist, as recently as 27 April 2022, and continuing to blame Ms Holden for your predicament.
23You have a relevant criminal history with five prior convictions for violent offending, although I am told none against Ms Holden or a female partner. You have priors for contravention of a family violence order, contravention of intensive correction order, and contravention of a suspended sentence. You also have a prior conviction for offences committed while on bail.
24No victim impact statement has been made by Ms Holden but this must have been a terrifying experience. It is clear from the summary that she was in considerable fear of you, fleeing her home when she heard you had been bailed, and only daring to re-enter her own home after she had waited outside for around an hour and was hopeful that you had gone.
25I turn now to the objective gravity of your offending. There are many objectively serious features to your offending.
26First, the offending against Ms Holden occurred when she was heavily pregnant and included threats against her unborn baby.
27Secondly, it occurred when you were on bail in respect of recent offending against Ms Holden, and in breach of a family violence order made for the protection of Ms Holden. In fact, no sooner were you bailed in respect of the prior incident involving Ms Holden, you caught a taxi straight back to her home. It seems you were completely unwilling to stay away from her and had no intention whatsoever to obey court orders and conditions of bail.
28Thirdly, you ambushed Ms Holden in her home using a hammer, and then went on to arm yourself with a knife.
29Fourthly, your offending involved multiple assaults upon Ms Holden, including punching her in the face and dragging her by the hair and clothing.
30Fifthly, and finally, the threats you made against her were sadistic and violent and were made at a time when you were armed with a knife, which must have increased Ms Holden’s fear that you would carry out your threats.
31This was a very serious example of family violence and your moral culpability is high.
32Turning now to your personal circumstances, you were 29 when you committed the offences for which you fall to be sentenced and you are presently 30 years old. You were born in Frankston and have a younger brother. Your family moved to New South Wales when you were seven years old.
33You told Ms Fleming that although you witnessed your parents having verbal arguments, there was no violence and no drug use in the family home and the family was financially stable. Your parents separated when you were nine. Your father then had an itinerant lifestyle and tragically was seriously injured in a car accident at some point during your childhood or youth. You lived with your mother, who re-partnered twice. You did not have a good relationship with either of these men.
34You told Ms Fleming you were diagnosed with attention deficit hyperactivity disorder (‘ADHD’) as a child at around nine years of age, and that your education was disrupted because of your poor behaviour. Ms Fleming was unclear, on the basis of her discussions with you, of the highest level of schooling that you had achieved.
35You left home when you were only 14 years old when you formed a relationship with an 18-year-old. You had a daughter together, who is now aged 13 years old.
36You led a transient lifestyle, moving to the Gold Coast in 2013, before coming to live in Bendigo in your 20s.
37You have no real history of stable employment.
38You began using drugs when you were around 13 years old. You have used amphetamines and methamphetamine. You have abused prescription drugs and alcohol. You told Ms Fleming that you had also used heroin.
39You told Ms Fleming that your drug use increased after you were diagnosed in 2013 with keratoconus, a rare eye condition that left you nearly blind. You required corneal transplants. You have had a transplant of your left cornea which has improved your sight but you are still waiting for a transplant of your right cornea. You remain almost blind in your right eye. Your incarceration has meant you have lost your place on the waiting list for a transplant.
40On the basis of her interview with you and on various clinical tests performed by Ms Fleming, she concluded that you were exhibiting moderate levels of depression and anxiety and a mild level of stress. She assessed you as a high risk of recidivism, given your criminal history, the self-serving attitudes to your offending which you still expressed and your psychological profile.
41She gives the opinion that a childhood diagnosis of ADHD can predispose an individual to criminality due to factors such as inherent impulsivity and cognitive and behavioural dyscontrol. She gives the opinion that any term of imprisonment would weigh more heavily on you, given your ADHD and your depression and anxiety. She recommended you be referred to a psychiatrist in the future.
42I turn now to the submissions of the parties, beginning with defence. Your counsel sought to invoke principles elaborated in Bugmy v The Queen,[5] given your difficult childhood and youth. Your counsel also relied on R v Verdins principles, submitting that your mental health would make any term of imprisonment more onerous for you than a prisoner in robust mental health.[6] He also relied upon the current difficult conditions in prison caused by the restrictions put in place to deal with the COVID-19 pandemic. He submitted also that your physical difficulty, your near blindness in your right eye, would also make prison more difficult for you.
[5] (2013) 249 CLR 571 (‘Bugmy’).
[6] (2007) 16 VR 269 (‘Verdins’).
43Mr Bhattacharya relied on your plea of guilty. He submitted your prospects of rehabilitation could be assessed as good. You have family support and references were tendered from your mother and your former mother-in-law, who at present has custody of your daughter.
44Certificates were tendered to show you remain drug-free in custody and are participating in courses.
45Mr Bhattacharya acknowledged that your offending was serious but submitted all the various sentencing objectives could be met by a sentence of imprisonment combined with a community correction order. Mr Bhattacharya noted that you have not in the past had the opportunity to do a correction order and you should receive that opportunity now in order to facilitate your rehabilitation.
46Mr Brown, who appeared to prosecute, submitted that this was a serious example of family violence committed in breach of bail and of an intervention order. He disputed Bugmy principles were engaged in sentencing you. He submitted that if there was any application of Verdins, it was a very modest one, given Ms Fleming’s categorisation of your mental health symptoms as either mild or moderate.
47Mr Brown submitted that the principles of specific and general deterrence, just punishment, denunciation and community protection were all engaged in sentencing you, and the only appropriate sentence was one that comprised a head sentence and a non-parole period.
48I turn now to my conclusions. I have already detailed the many serious features of your cowardly attack on Ms Holden and the frightening and distressing threats you made against her and her unborn child. As the courts have said again and again and again, male violence directed at women is intolerable and those who commit such crimes will receive stern punishment. The sentencing principles of general deterrence and denunciation are paramount and, in your case, given your criminal history and given that your offending occurred when an intervention order was in place and in breach of bail granted only hours before, specific deterrence and community protection are also relevant sentencing considerations.
49I take into account your plea of guilty and its utilitarian value. I take into account the difficult conditions in prison and, in your case, I accept that a combination of factors, namely, the restrictions necessitated by the COVID-19 pandemic, some modest application of Verdins limb 5 in relation to your mental health, and also your near blindness in your right eye will make your time in custody more difficult.
50I am unpersuaded that any sentence to be imposed on you should be moderated by the application of Bugmy principles. Even if your childhood was marred by the distressing occurrence of your father’s injury and a poor relationship with your mother’s subsequent partners, those factors do not provide a basis for mitigating sentence in a serious case where just punishment, denunciation, general and specific deterrence and community protection are all relevant sentencing considerations.
51I consider your prospects of rehabilitation to be guarded at best. However, you are still a relatively young man and any sentence I impose must try at least to foster your rehabilitation.
52Having said that, I declined to have you assessed for a community correction order. Your offending is simply too serious and, taking into account all the matters under the Sentencing Act 1991 (Vic) and matters personal to you, and the principle of parsimony, I have concluded that a sentence of imprisonment consisting of a head sentence and a non-parole period is the only appropriate sentence in your case.
53You are convicted on all charges, indictable and summary.
54On charge 1, common law assault, you are sentenced to eight months’ imprisonment.
55On charge 2, false imprisonment, you are sentenced to one year and 10 months’ imprisonment.
56On charge 3, make threat to inflict serious injury, you are sentenced to one year’s imprisonment.
57On charge 4, make threat to kill, you are sentenced to one year and eight months’ imprisonment.
58On charge 5, contravention of a family violence intervention order, you are sentenced to six months’ imprisonment.
59On the summary charge of trespass, you are sentenced to two months’ imprisonment, and on the summary charge of committing an indictable offence on bail, you are sentenced to one month’s imprisonment.
60Charge 2 is the base charge. I direct two months of the sentence on charge 1, three months of the sentence on charge 3, six months of the sentence on charge 4 and one month of the sentence on the summary charge of trespass be served cumulatively upon the sentence on charge 2 and upon each other.
61This makes a total effective sentence of two years and 10 months. I am directing that you must serve a period of one year and 10 months before you are eligible for parole.
62Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of four years with a non-parole period of three years.
63Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 347 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
64I make the disposal order sought by the prosecution.
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