Director of Public Prosecutions v Lindsay

[2017] VCC 516

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-02026

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN LINDSAY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	5 May 2017
CASE MAY BE CITED AS:	DPP v Lindsay
MEDIUM NEUTRAL CITATION:	[2017] VCC 516

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Foster
For the Accused	Mr A. Pyne

HIS HONOUR: 

1Nathan Lindsay, you have pleaded guilty to one charge of stalking, one charge of threat to kill, one charge of contravention of a family violence intervention order, one charge of causing serious injury intentionally, and one charge of false imprisonment.  Those crimes carry maximum penalties of ten years, ten years, five years, 20 years and ten years respectively.

2You are now 32 years of age.

3You pleaded guilty to a settled indictment, and you get the benefit of that.  It is hard to determine a great deal of remorse in this matter, but I will give you the benefit of the doubt insofar as that is concerned.  You must certainly get the utilitarian benefit of the plea of guilty, and the fact that, when speaking with the police, whilst you were somewhat guarded, you at least acknowledged that you were the perpetrator.  I take all those matters into account.

4You have no actual prior convictions, but you do have one prior finding of guilt for stalking, which was in December of 2014, and that also involved a relationship, which is of real concern in this sentencing process.

5The offending is serious indeed.

6You and the victim, Chloe Bottrell, had been in a relationship between March 2014 until around about July of 2015.  After that relationship broke down around July, you commenced to send a large number of text messages to her mobile phone, something in excess of 900 messages and missed calls between 27 August and 25 September 2015.  That is about, in my simpler arithmetic, 30 a day.

7In any event, you also posted a photo of the victim and her mobile phone number on the Facebook page of Gippsland Singles Australia.  The effect of your conduct was to cause apprehension and fear, understandably in the victim, for her own welfare and that of her two children.  That gives rise to the charge of stalking, which has a maximum penalty of ten years' imprisonment.

8In September, the nature of the calls and the messages grew increasingly disturbing to her.  You contacted her multiple times each day, on 5, 8, 9, 10, 11 and 16 September 2015.  She had made it clear to you that she was not interested in continuing the relationship, and asked you not to make contact.

9On 8 September 2015, you sent her a text message that said, "Answer your fuckin' phone", followed by a further text which said, "I'm gonna fuckin' kill you".  You told a psychiatrist that you could not remember what was on the text, and that you were incoherent, but I do not think that is right at all.

10The effect on the victim was understandably again that she became increasingly scared for her own welfare, and shocked that you would threaten her in that way.  She became jumpy, and made sure that her premises were locked when she was at home with her children.  That is a charge of threat to kill, which I regard as a serious example of it, not only directed at her, but in the knowledge that there were two small children totally dependent upon her.  As a result of that threat, she contacted police and made a statement.

11On 12 October she obtained an interim intervention order in La Trobe Valley Magistrates' Court.  That prohibited you from committing family violence.  You continued to contact her through October.  The nature of the calls remained threatening, and included messages such as:  "You do not realise what you have stirred.  I hope you are listening to what I am going to say next.  Run, run as far as you can, 'cause there ain't nothin' that's gonna save you".  "Everybody pays a little bit of penance".  "see you soon".

12She became very frightened, clearly, by those messages, and did not even stay at home on that night.

13On 25 October, you contacted her on ten occasions.  A further ten calls were made on 26 October.  You continued to ring her daily until 6 November.  One of the last messages you sent to her on 6 November contained the message, "Don't worry about what I'm doing.  Worry about why you're worried about what I'm doing".  That is the charge of contravention of a family violence intervention order.

14On 4 November you contacted a former de facto partner, Sarah Luck, to conduct an access visit with your mutual daughter.  At the conclusion of that visit you advised her, "This is the last time you're going to see me.  I'm going away for a long time, between eight to 15 years".  When asked why, you said, "You don't need to know.  Don't worry about it".  It is clear from that you were intending very serious violence indeed, and that you were fully aware of the consequences of it, and what the potential ramifications would be within the legal system.

15On the evening of Friday 6 November, you contacted another former de facto, a Tamika Stone.  During the course of that phone conversation you said, "Make sure you watch the news on Sunday and Monday".  When asked what that meant, you just said, "Just watch the news".

16You also contacted your mother and advised her that, "You won't be hearing from me again, and I'll see you up there".  You said you, "Can't talk over the phone, just watch the news".

17You were clearly intending something very dramatic indeed, Mr Lindsay, and that is what eventuated.

18At 6 pm on 6 November, the victim went to work.  As I understand, I think she was working two jobs at around that time, leaving her two children with a babysitter.  Upon returning from work at approximately 11 o'clock, she drove the babysitter home and returned to the residential address in Drouin.

19You must have been waiting for her, or following her, or something, because you clearly knew by the phone call that you made later to the police that the two children were now alone in the house, so you must have known that the babysitter had been driven home.

20In any event, while she was making her way to the front door, she was attacked by you.  She recalls seeing an offender who was wearing a hooded jumper, having an expression of anger on his face.  After that, she has no recollection of events until she wakes up in her motor vehicle being driven by you.

21In your attack, you used a 55 centimetre length of wood, which was found at the scene, as I now understand, striking her multiple times about the head and face, causing unconsciousness, skull fractures, bleeding and swelling of the brain.  A doctor described the injury as a traumatic brain injury, which was life-threatening.

22You used a weapon.  You aimed for the head.  And you persisted, driving your attack into a defenceless woman's head.  She was rendered unconscious.  Whether you thought she was dead or not, I will never have any idea.  But in any event, that gives rise to causing serious injury intentionally.

23You then, whilst she was unconscious, put her into the back of her car and drove to the other side of Drouin.  Whilst you were driving there, she begged you to return her to her home, where obviously her children were by themselves.  You provided a response which she could not understand, and she then lapsed into semi-consciousness until police arrived.

24You left her in that semi-conscious state.  You made a short call to emergency services identifying the location of the victim and saying, "There's a lady with head trauma and neck injuries".  You said there were two children alone in the house, McKindlay Street in Drouin.  You gave a false name and said you wanted to remain anonymous.  You went to St Arnaud, some distance to drive.  That is where you were found asleep in the house, or your car, as I understand it.

25Her injuries, not including what is described in the victim impact statement, included a fracture of the left parietal and temporal bones, extending to the left central skull base; subdural haematoma underlying the fracture; subdural haematoma of the left parietal lobe; small left temporal lobe haemorrhagic contusion; right tentorial subdural haematoma.  She describes having sustained extensive bruising on the back of the left ear, right shoulder-blade, upper left arm and nose.

26The residual effects of the assault include, amongst other things I will mention in a moment, partial hearing loss and, in her situation very importantly in my view, a post-traumatic stress disorder.

27She was in hospital from 7 November 2015 until 16 November 2015, when she was taken and put in a rehabilitation ward.

28As I said, the attack was premeditated.  It was planned.  It was persistent.  And it was savage, to say the least.  That woman was beaten to within an inch of her life, I feel confident in saying, bearing in mind the opinion of the doctor that the injuries were life-threatening.

29Fortunately, she did not pass away, and you stand to be sentenced on the crime of intentionally causing serious injury, and you are sentenced for that crime and no greater one.

30I have before me the victim impact statements not only of her, but of the two children.  The children, I am unsure whether they fully grasp what has happened or not, but they are both frightened - their whole lives have been disrupted - and afraid for their mother.

31Her victim impact statement needs to be dealt with, in my view, at some length.  In that statement, she says:

"The impacts of the assault for me have been devastating, profound and far-reaching.  They have impacted every area of my life and every part of myself.  The physical and psychological impacts of the assault continue to interfere in my daily life and prevent me from achieving what used to come so easily.  I see a psychiatrist every two weeks for support with the symptoms of post-traumatic stress.  The hypervigilance, the repetitive and intrusive thoughts, the flashbacks, sleeplessness, insomnia, nightmares, difficulties in concentration, depression, memory problems.  All of these are things I struggle with on a daily basis".

32She said that:

"My daughters have suffered a great deal from the assault.  They are fearful for my safety and their own.  They require ongoing counselling to deal with this".

33She then says that, this is obviously summarised:

"My children were not able to have me present for their end of year school concert, as the injury to brain requires me to avoid bright lights and loud noises.  The constant headaches as a result of this injury makes it virtually impossible for me to attend any school functions or school excursions, something that before the assault, we enjoyed together".

34She describes being in hospital and waking up not knowing quite what had happened for some period of time.  She says that: 

"The headaches, loss of coordination, dizziness, memory-loss, hearing and eyesight issues still affect me to this day.  The persistence and invasiveness of post-traumatic stress wears me down and consumes so much of my energy that fulltime work is not a possibility".

35In interpolate there that, having dealt with the post-traumatic stress situation in many victim impact statements over the last ten years, I think that the consequences of post-traumatic stress injury to people is vastly underestimated by the general public.

"The physical injuries to my brain have made the simplest of tasks difficult.  Activities like using a sewing machine, something I've enjoyed since childhood, are frustrating, because I forget how the thread the machine or use the basic functions.

"I was a 29-year-old single mother with two daughters.  I was strong, independent and willing to make an effort.  I was holding down two jobs to make a better life for my children, and a better person out of me.  This is no longer possible.  The assault stripped me of my way of life, my self-esteem, my physical strength, and my mental agility in the most terrifying of situations".

36She describes how:

"I was forced to purchase another car, not just because of the constant reminder as to the location of the assault, although the detailing and thorough cleaning was able to remove the blood and the flesh left behind after the assault, it cannot be washed from my every day thoughts.  My ability to confidently drive a manual car safely, means I am also limited to purchasing a more expensive, automatic car.

"I lost my home, McKindlay Street.  My home was also the place that the assault took place, and to this day, that area remains a place of terror and distress to me".

37Within days, she knew she would have to leave, leaving her neighbours, her children's friends, the veggie patch and the garden that they had all loved.  She said:

"My children and I had to move our belongings from the house because I could not afford to hire a moving company, so we were forced to struggle through the negative and fearsome association with that house".

38She points out the cost of having to do that.  She took three months off work.

39"Now my brain injury and the trauma of the assault prevents me from undertaking even the most basic tasks".  She describes how difficult it is for her to endeavour to work and also, as a very significant consequence of all this:

"Before the attack, I'd also been a foster mother for Berry Street family services, regularly caring for foster children on the weekends, but also occasionally caring for foster children fulltime for a period of about six months at a go.  This is no longer possible for me.  I struggle with caring for myself and could not possibly begin to care for children who may have been removed from their homes due to violence, et cetera".

40The consequences to this totally innocent victim can only be described as dreadful.

41The crime calls for the application of general and specific deterrence, denunciation and appropriate punishment.

42Pursuant to s.6A of the Sentencing Act, on Charge 4 you are sentenced as a serious violent offender.  I am aware that the sentence would then be cumulative unless ordered, and I will so otherwise order.  I am aware that public protection becomes the principal sentencing purpose, and the Crown do not seek a disproportionate sentence.

43The gaol sentence that is inevitable must be a sentence which reflects the gravity of what you did.

44Very helpful submissions were put on your behalf by your counsel.  There was a psychiatric report from Mr Turnbull, and I have documents from the gaol.

45The psychiatric report seems to me not to indicate a great deal of remorse, as I have indicated, and a sense of almost self-excuse.  Be all that as it may, you have no psychological issues which give rise to the principles in Verdins, or any such thing.

46You describe a chaotic life, and had a difficult childhood - as your counsel described, a middle class one, with a policeman for a father and a nurse for a mother.  You obviously ran into strife with them at a very early age.  You commenced drinking alcohol at a very early age.

47You had a number of different relationships.  You have abused cannabis, but I understand that is not now for some period of time.

48To your credit, you do have a very good work record over the years in farm labouring and different things like that.  You are clearly able to apply yourself when need be.

49Importantly, as your counsel points out, since you have been incarcerated you have done a number of courses.  You have a position within the gaol as a "disability garden mentor".  That is described as a program with very strict selection criteria, as mentors are expected to act as role models for other prisoners.  I accept that you have endeavoured to use your time in custody to your benefit, and ultimately to the benefit of others. 

50You appear to be disassociated from your family, and I am unaware as to whether you get visits or not.  I suspect not.

51The prospects for your rehabilitation are very much up to you.  The risk of you reoffending in a relationship situation, bearing in mind previous conduct, in my view has got to be regarded as relatively high, and in that sense you are a danger.

52Hopefully general deterrence and the programs that you can do in gaol will reduce that by the time of your ultimate release.  It is always difficult for a judge sentencing in a situation like this, where the release date is so distant from when the sentence is being passed.

53I take all those matters into account on your behalf, but in particular your plea of guilty, but in the end of all this, the crime itself, as I have indicated, was a premeditated, vengeful, savage attack on a defenceless woman in the vicinity of her children, and left her with lifelong, serious injuries, both physical and psychological.  Her children will also have to live with it.

54Accordingly, I sentence you as follows.

55On Charge 1, 12 months.

56On Charge 2, 15 months.  That is the threat to kill.

57On Charge 3, nine months.

58On Charge 4, eight years.

59On Charge 5, 12 months.

60I direct that four months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, and five months of the sentence imposed on Charge 5, be served cumulatively upon each other and upon the sentence imposed on Charge 4.

61That gives a total effective sentence of nine years and six months.

62I direct that you serve a minimum term of seven years before becoming eligible for parole.

63I direct that 545 days be reckoned as having been served under this sentence.

64So that you understand the benefit of having pleaded, I say that, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of 13 years with a minimum term of ten.

65Are there any other orders I have to make?  Just check the arithmetic.

66MR PYNE:  I didn't get that.

67HIS HONOUR:  Do you want it again?

68MR PYNE:  Yes, Your Honour, if you could repeat that, all the numbers down.

69HIS HONOUR:  Yes, of course I can.  Yes, Charge 1, 12 months.  Charge 2, 15 months.  Charge 3, nine months.  Charge 4, the intentional serious, eight years.  Charge 5, 12 months.  All right.  Four months of Charge 1, six months of Charge 2, three months of Charge 3, and five months of Charge 5 be served cumulatively upon each other and upon Charge 4.  That should give you a total effective sentence of nine years and six months.

70MR FOSTER:  That adds up to me, thank you, Your Honour.

71HIS HONOUR:  Yes.  Minimum term seven, 545 PSD, 13 with a ten is the 6.AAA.

72MR FOSTER:  As the court pleases.

73MR PYNE:  Yes, as the court pleases.

74HIS HONOUR:  Yes.  You can remove the prisoner, thanks.  Yes, thanks Mr Pyne, you are excused.  I just need to speak to Mr Foster for a second.

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