Director of Public Prosecutions v Lotus

[2015] VCC 728

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00131

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIKITA LOTUS

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 May 2015
CASE MAY BE CITED AS:	DPP v LOTUS
MEDIUM NEUTRAL CITATION:	[2015] VCC 728

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B.D. Nibbs	Office of Public Prosecutions
For the Accused.	Mr T. Gattuso

HIS HONOUR: 

1Nikita Lotus, you are to be sentenced for one charge of intentionally causing injury.  The maximum sentence is ten years' imprisonment. 

2You pleaded guilty in this court on 9 February 2015.  When interviewed by police on 23 January 2013, the date of your offending, you made what appeared to be full admissions.  You gave an explanation for the offence, which is not disputed and to which I shall return.  Originally, you and a co-offender were also charged with the offence of aggravated burglary which carries a maximum sentence of 25 years.  It is a markedly higher maximum sentence than for this offence.  This was contested by you at committal in January 2014.  The matter was listed for trial.  However, early in 2015 the charge of aggravated burglary was withdrawn and, as stated, you pleaded guilty to this offence.  The Crown did not proceed against the co-offender.  The Crown concedes an effectively early plea to the offence of intentionally causing injury and that your confession to police in January of 2013 has amounted to a major part of the Crown case against you. 

3You receive the benefit of your plea of guilty and cooperation,  given and in the circumstances of that history of the proceedings.  You have thereby expressed remorse and facilitated the interests of justice.

4At your plea hearing, which ran before me on 22 May, Mr Nibbs for the Crown tendered a written summary of prosecution opening.  Mr Gullaci, for you, tendered a Royal Melbourne Hospital discharge summary related to your treatment  for injuries, including a knife wound in early March 2013; the letter of Lucette Russell of VACRO, Victorian Association for Care and Resettlement of Offenders, dated 19 May 2015; the letter of work reference by Anthony Santamaria dated 30 December 2014; and psychological and psychiatric reports of David Ball dated 18 May 2015, Patrick Newton, dated 12 August 2003, and Dr Danny Sullivan, dated 12 August 2013.

5The circumstances of your offending are set out in the Crown opening which is tendered as Exhibit A. 

6In January 2013 you had been staying for some days at the residence of your victim, Michael Winduss, in Noble Park. You seem to have been in the process of leaving.  On 23 January you went there with a male co-offender at about 3 pm.  Inside the house a witness observed the male to have a metal bar or similar.  The Crown does not urge a finding  that there was such a weapon or, if so, that you were aware of it.  It is not relevant to your sentence.

7You went to a bedroom in which were Winduss and a 17-year old young person named Michelle Williams.  Winduss is in his early forties.  You and the male assaulted Winduss.  You punched him repeatedly, including about the head.  The male also struck him.  Williams left the house.  You and your co-offender also left soon after.  You were arrested by police in a car nearby.  The police were members of the Homicide Squad.  Their interest related to investigation of the death or disappearance of Ms Williams' mother.  They happened to be in the area for that reason.

8Paragraph 32 of the Crown summary states the following as to Winduss' injuries.  "As a result of the assault on him, Winduss had a 3 cm laceration and swelling to the forehead, bumps to the back of the head, and a sore hand with laceration or bruising to the left hand". 

9I accept the following matters related to the circumstances leading to your offending and relevant to your sentence. 

10(1) You have a background damaged by drug use and you were using methylamphetamine at this time and on the day. 

11(2) You are now aged 40.  You had befriended Michelle Williams.  You perceived her to be vulnerable and at risk in the company of Winduss.  You saw him to be using and supplying drugs to her, also to be sexually involved with her, and possibly to have hurt her.  I accept that you had reasons for these concerns.  Ms Williams' mother was missing and thought to have been murdered.

12(3)  Consistent with your support of Michelle Williams, you had attended the Homicide Squad office on 22 January with her, where she met and spoke to police about the investigation into her mother's disappearance.  Mr Gullaci said that she was told not to go to Winduss' address.

13(4)  On 23 January there had been phone contact with Michelle Williams and you knew her to be there.  You went to the house to confront and have it out with Winduss.  Your male co-offender, it is put, came for support if matters developed the need.  I find that you went there angry, in part legitimately so, and half expecting or spoiling for a fight.

14(5)  When you went to the house and then into the bedroom, you saw Williams and Winduss to be sexually involved.  You were further enraged by that. 

15No victim impact statement has been tendered.  I was told that  but Winduss was a reluctant witness, which impacted upon the decision to discontinue against your co-offender.  As stated earlier, you had confessed your offending to the police.

16You are now 40 years of age.  Your life has been badly damaged by childhood experiences and drug use.  Your parents separated when you were very young.  Your father suffered mental health and drinking problems and spent time in prison.  Your childhood encountered violence within the home and then extended  sexual abuse of you by an uncle.  You began to use drugs in teenage years and into adulthood;  and there have been damaging and sometimes violent relationships with men, drug use and criminal offending to some extent consistent with these other background factors.

17Your criminal record filed with the indictment states an extensive history between November 2000 and December 2012. There are many court appearances.  Offences of dishonesty predominate, but there is also violent offending.  Mr Gullaci brought to my attention that in December 2003 you were sentenced to three and a half years' imprisonment with a minimum term of 18 months for a number of offences, including armed robbery. 

18Mr Gullaci also advised of subsequent matters.  He provided a written chronology which indicates that subsequent or other offending and revocation of parole have led to periods in prison which amount to a total of about 13 months in custody for offending apparently committed in 2012 and 2013.  Theft and driving offences, such as driving whilst suspended, were said to predominate.  This offence occurred during that period.  It was put and I agree that the principle of totality should be applied. 

19Mr Gullaci placed emphasis upon your recent efforts to rehabilitate.  You were released from prison in December 2014.  Mr Gullaci pointed to courses completed in custody, voluntary work in prison, a period of work experience at a Melbourne restaurant, attendance at Narcotics Anonymous and that you have been drug-free, he said, since April 2014.

20I was told of a further subsequent matter for burglary and theft which was to be heard at the Magistrates' Court on 27 May.  I have been told this morning that that has been further adjourned until next week.  The relevant offending occurred in April 2014.

21I heard briefly from Lucette Russell at VACRO at your plea hearing.  It appears that critical to your positive efforts to reform has been stable accommodation in the Geelong area.  You have the prospects of further employment, including at a restaurant and in a butchering apprenticeship.  You have work skills in these areas.  I was told that there has been no offending since release from prison in December 2014.

22Dealing with the psychological material tendered, Mr Gullaci's outline of submissions states at paragraph 11, "Diagnosis of borderline personality disorder.  Ability to rehabilitate dependent on 'continuing extensive, intensive and structured treatment in the community aimed at mood management and therapy aimed at the borderline and self-defeating aspects of her functioning.'  Ms Lotus' offending is associated with her intoxication - 'in intoxicated and emotionally overwrought states she is not able to think clearly or make calm and rational choices.  Her judgment is impaired and she is disinhibited and impulsive'.  This is not relied on in mitigation, rather as a context to her offending".

23You have four children aged in their early twenties, 13 and eight.  All have been in protective care or supervision.  The younger two live with your mother.  You have the ambition of reclaiming custody of at least your youngest child.  I was told some of the detail of a pending hearing in the Children's Court. 

24This was a serious assault upon your victim, not justified by your concerns for Ms Williams.  Winduss was outnumbered and given little chance.  It occurred in the bedroom of his home.  You have an extensive and relevant criminal history.  Your drug use and intoxication is of no mitigation.  Such circumstances make relevant the sentencing considerations of deterrence, both general and specific deterrence, your moral culpability and the need to sentence in a way to condemn the offending and proportionately punish.  However, I have decided that such considerations, when balanced against the mitigating moderating factors, can be met without your return to prison and by imposing a Community Corrections Order. 

25As is not unusual in recent times, the known well-known authority of Boulton v R. was raised on your behalf.  I see it as applicable to your case.  A Community Corrections Order without imprisonment beyond what you have served meets, in my view, both relevant punitive and rehabilitative purposes.

26The mitigating and moderating factors that I have seen as particularly relevant are as follows.

27(1) Your plea of guilty and cooperation;

28(2) Your personal history and circumstances;

29(3) The circumstances leading to your offence.  As stated, they do not amount to justification for your attack on Winduss; however, they are an explanation that should be taken into account.

30(4) The principle of totality as earlier identified;

31(5)  (And this is important) Your efforts at rehabilitation.  Related to that is the delay since offending, now of almost two and a half years.  You have spent a good deal of that in custody but you have also made efforts towards reform which, given your background and circumstances, are admirable and should be encouraged. 

32You are found suitable for a Community Corrections Order.

33I sentence you as follows. On one charge of intentionally causing injury you are sentenced to imprisonment for one month. However, under s.18 of the Sentencing Act  I declare 34 days of pre-sentence detention already served.  You will not have to go back to gaol.  I impose with conviction a Community Corrections Order of two years' duration.  The usual terms apply.  The additional conditions are as follows.  That you perform community work of 200 hours over that period as directed; that there be a treatment and rehabilitation condition for drug use or dependence; that there be a treatment and rehabilitation condition for alcohol use or dependence; that there be a treatment and rehabilitation condition for mental health; that there be a condition related to programs to reduce reoffending as you are directed; that there be supervision and that there be judicial monitoring, and I shall set a date for that.

34You can come out of the dock and be seated behind Mr Gattuso, please.  I need to give a s.6AAA indication and I will do that in a moment.  Is there anything else?  I presume that there is a sample of the accused's - - -

35MR NIBBS:  No, that was raised on the last occasion.  She is already on the database so there is no need. 

36HIS HONOUR:  All right.  Disposal order?

37MR NIBBS:  Correct.

38HIS HONOUR:  Do you have the documents?

39MR NIBBS:  No, I understand that is going to be emailed through to your associate.

40HIS HONOUR:  All right, I will make the order.  Some weapons were found, or some objects were found.

41MR NIBBS:  There were some items seized.

42HIS HONOUR:  Within the car, were they?

43MR NIBBS:  Yes, tyre levers.

44HIS HONOUR:  Yes, but you made the Crown position, and properly and fairly so, very clear during the plea hearing and I have reflected that in my sentencing reasons.

45MR NIBBS:  Correct.

46HIS HONOUR:  I would have imposed a straight sentence of six months if you had not pleaded guilty, I indicate that now.  We need to produce the document.  We will make it judicial monitoring in four months' time.  The purpose of that is to see how you are going.  If you are going all right you will not get any problems from me.  If you are not going all right, we will have to do something about it.

47I am imposing a Community Corrections Order.  It runs for two years so it ends on 28 May 2017.  You must attend at the Geelong Community Correctional Services in Little Malop Street within two clear working days.  The usual terms are these.  That you not commit another offence for which you could be imprisoned during that time.  You may or may not know that you do not have to be in prison to be brought back before me.  Possession of a small amount of methylamphetamine makes you liable to imprisonment, even if you do not get it, and you would come back and I would have to resentence you, so you need to be careful.  You must comply with the regulation that prohibits you attending appointments, work obligations and other such things under this order affected by alcohol or drug use or in possession of illegal drugs.

48You must report to and receive visits from Community Corrections.  You must let Community Corrections know within two clear working days of a change of address or job.  You must not leave Victoria without first getting permission to do so and you must obey all lawful instructions and directions of Community Corrections.  These are the additional conditions.  You must perform 200 hours of unpaid work over that two years as directed.  You must be under the supervision of a Community Corrections officer for that period and you must undergo assessment and treatment for drug abuse or dependency as directed.  You must undergo assessment and treatment for alcohol abuse or dependency as directed.  You must undergo mental health assessment and treatment as directed.  You must participate in selected programs that address your offending as you are directed.

49As I said to you before, I am going to impose a condition that I monitor your progress.  You must attend for review before me on 29 September at 10 am.  I will get a report from Community Corrections about two weeks before, and if you are going well you will not have to come in.  If you are told you have to come in, you will know that I am not happy with how things are going, so it is in your hands.

50OFFENDER:  Thank you, Your Honour.

51HIS HONOUR:  If you sign that, you have to sign on the back page or on the second page it seems.

52MR GATTUSO:  Perhaps while that is being done, Your Honour, I believe I have found the clean chronology. 

53HIS HONOUR:  Good.  It is a single page document, it looks like the right one.

54MR GATTUSO:  That looks like it.

55HIS HONOUR:  We will call that Exhibit 5 I think, because that sets out in detailed form what I attempted to summarise. 

56MR GATTUSO:  It is hole punched but it is otherwise clean, Your Honour.

57HIS HONOUR:  Yes.  Good luck with it.

58OFFENDER:  Thank you very much, Your Honour.

59HIS HONOUR:  Thank you, Mr Gattuso, thank you, Mr Nibbs, you are both excused.

60COUNSEL:  Thank you, Your Honour.

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