Director of Public Prosecutions v Lewis
[2023] VCC 1378
•8 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHRISTOPHER LEWIS |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2023 | |
DATE OF SENTENCE: | 8 August 2023 | |
CASE MAY BE CITED AS: | DPP v Lewis | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1378 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Criminal damage – plea of guilty – recklessly cause injury – delay
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Community Correction Order for a period of 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Wallwork | |
| For the Accused | Mr P. Bloeman for plea |
HER HONOUR:
1Christopher Lewis, on 18 July 2023 you sought a sentence indication on one rolled up charge of criminal damage and one charge of recklessly cause injury and a summary related offence of committing an indictable offence whilst on bail. Pursuant to s207(1)(a) of the Criminal Procedure Act,[1] I indicated that if you were to plead guilty, I would impose a Community Correction Order. On the basis of this indication your matters resolved and you were arraigned on Indictment M11594951. You pleaded guilty to the two charges on the indictment and consented to the summary related offence being dealt with by this court and you pleaded guilty to this charge.
[1] Criminal Procedure Act (Vic) 2009 s207(1)(a).
Circumstances of offending
2The agreed factual basis of your offending is as follows: On Saturday 19 June 2021 you attended at the address of the victim. That was in Ballarat East. You had known the victim for about four years through a former partner. You went there in the early hours of the morning and woke the victim. You screamed, shouted and demand that she give you methadone and money.
3When your demand was refused you broke a panel of glass located next to the front door. You then left the premises, only to return approximately two hours later. When you returned you tried to enter the property via the front door. You were stopped by the victim and a struggle took place. At this time you struck her to the right side of her forehead. A Chinese porcelain statue was also broken.
4As you left the address you broke the rear window of a vehicle that was parked in the driveway of the address. The vehicle belonged to the victim’s father, and the window cost $450 to replace.
5Later that morning your victim was taken by ambulance to the Ballarat Base Hospital. She was examined and found to have a small lump to the right forehead, with associated bruising and redness.
6You were arrested at Sunshine Train Station on 29 July 2021. You were taken to Sunshine Police Station. You were questioned by police during a record of interview and denied the allegations. You were charged and released on bail.
Nature and gravity of offending
7The charges to which you have pleaded guilty are capable of summary determination and are routinely dealt with in the Magistrates Court. That is not to say this is not a serious incident.
8You went to the victim’s address where she lived with her parents, in the early hours of the morning on two occasions. You demanded she give you drugs and money and when she refused you assaulted her causing her a lump to her forehead. Further you damaged property at the home and the window of her father’s vehicle in the driveway. You caused approximately $1,000 worth of damage to property belonging to your victim and her parents.
9Although the court has not received a victim impact statement I accept that your victim and her parents would have been very frightened by this episode.
Personal circumstances
10You are soon to be 42 years of age. Currently you live in Ballarat with your mother, for whom you provide significant care. As a result of health difficulties suffered by your mother, she is house-bound. Essentially you keep the house running by cooking, cleaning, helping your mother in and out of bed, her lift chair, with toileting and taking her medications. You receive a carer's pension.
11You have been in a stable relationship for the last 12 months.
12In your early years you grew up in Ballarat. You have not had the easiest life. Your father has never been a part of your life and his replacement, your step-father, was not a kind man. At the age of two you and your half-brother, Troy, were kidnapped by your step-father and you were severely abused.
13Your education was disrupted as your family frequently moved. You attended four to five different primary schools and ended up leaving school during Year 7. You attempted Year 8 and Year 9 but these attempts did not last long. When you were 11, you and others were physically assaulted at a Drug Prevention Camp for Troubled Teens.
14Between the ages of 13 and 18 you were employed doing farm work. Since this time you have worked in a wide variety of jobs including further farm work, wool-classing, factory work at a winery, house renovations, handy man work, insulation and plastering, gardening, factory work, sandblasting and powder coating. It appears that you have been gainfully employed throughout most of your life.
15At the age of 12 you began to binge drink alcohol. Your early prior convictions occurred in this context. From 13 years old you began smoking cannabis and this continued until you found your drug of choice, heroin.
16You were introduced to heroin by friends in the early 2000s when you were in your early 20s. You have used this drug on and off for the last 15 years. For the last five years you have been abstinent.
17In 2017, you commenced treatment on the methadone program. You currently take 100ml a day. In addition, you are prescribed and collect diazepam daily. You have built a strong therapeutic relationship with your pharmacist and your nurse practitioner.
18Your prior history, although it is five pages, is not extensive likely because of your ability to maintain employment at times when you were using heroin. You have been fined and gaoled in the past. Your longest sentence appears to be a sentence of 12 months with a non-parole period of four months that was imposed in October 2013, most likely while you were in custody for a six month sentence. Apart from a Youth Supervision Order, apparently imposed in the Ballarat Magistrates Court when you were 15 years old, you have had no real therapeutic orders, except for a period on parole.
19On 10 January 2023 you were dealt with for a charge of theft of a vacuum cleaner and received a six month adjourned undertaking. This is the offence you were on bail for at the time of the offending before this court. There has otherwise been no subsequent offending for over two years.
20I turn now to matters in mitigation.
Plea of guilty
21I accept your plea, although it came just before your trial, has significant utilitarian value. You have spared the court the time and expense of a trial. You have also spared the witnesses the need to give evidence again. This has to be seen in the context of the significant backlog of cases before the courts in the wake of the Covid-19 pandemic. Although there have been inroads made by the court into this backlog, what the Court of Appeal had said in the case of Worboyes,[2] remains relevant. I therefore give greater weight in mitigation to your plea of guilty recognising that it is a plea that has eased the burden of the backlog of trials. Accordingly, I propose to allow a significant sentencing discount for your plea of guilty.
[2] Worboyes v The Queen [2021] VSCA 169 at [39].
Delay
22In general delay can be an important mitigatory factor in sentencing. There are two potential effects of delay. First, there may be considerations of fairness, and second, there may be considerations of rehabilitation. In my view both limbs have application in your case.
23First, it is apparent that having had this matter hanging over your head for a significant period of time has caused you considerable anxiety, stress and uncertainty for your future.
24Second, in terms of rehabilitation, it is now over two years since your offending.
25On 2 August 2021, you were assessed as a suitable candidate for the CISP program. Your episode with CISP continued for 10 months. In that time you were engaged in case management, continued pharmacotherapy and specialist employment services. Your case manager described that you had made positive and lasting changes to your lifestyle and that you show great insight into your situation and the impact of your offending on your life and the community. Further, he described that you were highly motivated to leave your offending behind and continue to make steps towards your goal of employment.
26Further, in terms of rehabilitation generally, I take into account the support you have from your partner, your past work history, your lack of any subsequent offending and your changed role as the care-giver for your mother.
Sentencing principles
27I consider that the relevant sentencing principles that must be applied in your case are general and specific deterrence, just punishment, and community protection. In addition, your offending must be denounced by the court, and I do so. I have also taken the principles of proportionality and parsimony into account in fixing the sentence I will now impose. That is, the punishment I impose must fit your crime and I must do no more than is necessary to punish you for your particular offending.
28It is my view that the community will be best protected if you can continue on your path of rehabilitation uninterrupted. You have demonstrated over the last two years that you are serious about making a sustained change and in light of your demonstrated rehabilitation I assess that you have good prospects for rehabilitation in the future.
29I have had you assessed for a community correction order, and you have been assessed as suitable.
30So, Mr Lewis, in relation to the two charges before the court you are convicted and you are placed on a community correction order for a period of nine months. The conditions of this community correction order include:
(a) 100 hours of community work;
(b) Assessment and treatment in relation to mental health;
(c) Offending behaviour programs; and
(d) Supervision by the Office of Corrections.
31In relation to the community work I will offset 50 hours against treatment. So for every 50 hours of treatment that you do, that will come off that total of 100 hours. Okay?
32OFFENDER: Yes, Thank you, Your Honour.
33HER HONOUR: In addition to those conditions, there are some standard conditions that I have got to tell you about. I am sure that these were explained but I will just repeat them. So, first and foremost, you must not commit any offences punishable by imprisonment during the next nine month period of the corrections order.
34You also need to report within two working days to the nearest Corrections office - so that is after today - and I understand that will be Ballarat. You are required to advise your supervising Corrections office of any change of address where you are living or working within two clear working days. And it is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their permission. So if you breach any of those conditions or you do not comply with the conditions I have imposed, it would be a contravention of the order. If you reoffend, it would also be a contravention of the order, and if that happens you would be brought back before me and you would be dealt with for the breach and likely – I would have to resentence you on the original charges. So do not breach, okay? I do not think you will, - you have done three in the past , and you did very well on CISP so that also gives me confidence that you will be able to do this.
35Mr Lewis, do you understand what is involved in a community correction order?
36OFFENDER: Yeah, I believe I do, Your Honour. So I look forward to every opportunity and to take the most out of this.
37HER HONOUR: Yes. And do you consent to undertaking such an order?
38OFFENDER: Yes.
39HER HONOUR: Do you agree to do it?
40OFFENDER: Yes.
41HER HONOUR: Yes, great. All right, so that will be the order of the court. Gentlemen, I'm not going to impose or declare a s6AAA given the order that I have imposed.
42In relation to the charge of committing an indictable offence on bail, I will convict and discharge you in relation to that. The impact of that is probably more keenly felt by the recording of it on your prior convictions. So if you fail to appear like you did yesterday and you haven't kept in contact with your legal team, then a court will most likely issue a warrant and it will be a struggle for you to get bail. All right?
43OFFENDER: Yes.
44HER HONOUR: Best of luck, Mr Lewis, and best of luck with caring for your mum, and follow up on that counselling for that because it. can be unrelenting and so just make sure that you look after yourself, all right?
45OFFENDER: Okay, thank you.
46HER HONOUR: Anything else that I have missed?
47MR WALLWORK: No, Your Honour.
48MR BEHAN: No, Your Honour.
49HER HONOUR: Mr Wallwork, I'm not sure if you get a chance to communicate with the victims or your instructor does, but can you pass on that the court has taken into account the impact of this offending on both her and her parents and it's been noted that it certainly would have been very frightening for them.
50MR WALLWORK: Yes, we will do so, Your Honour.
51HER HONOUR: Thank you. Thanks gentlemen, have a good day.
52MR WALLWORK: As Your Honour pleases. Thank you.
53MR BEHAN: As Your Honour pleases.
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