Director of Public Prosecutions v Maybery

[2015] VCC 1569

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

AT HORSHAM
CRIMINAL JURISDICTION

CR 15-01495

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMA MAYBERY

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	6 November 2015
DATE OF SENTENCE:	6 November 2015
CASE MAY BE CITED AS:	DPP v Maybery
MEDIUM NEUTRAL CITATION:	[2015] VCC 1569

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	Acting solicitor for Public Prosecutions
For the Accused	Mr S. Gardner	Harper Buscombe & Madden

HIS HONOUR: 

1Ms Emma Maybery, you have pleaded guilty to one count of aggravated burglary, maximum penalty 25 years' imprisonment; one count of making a threat to kill, maximum penalty ten years' imprisonment; one count of common law assault, maximum penalty five years' imprisonment; and one summary count of contravening a family violence order, maximum penalty two years' imprisonment, or 240 penalty units.

Circumstances of the offences

2The circumstances of the offences were set out in the Crown opening, which was read in open Court this morning on the plea, and which I incorporate by reference.

3In brief outline, the complainant in this matter is your former de facto partner, a gentleman who is ten years older than you.  You are currently aged 23, and were aged 23 on 19 April this year when the offending occurred.  You and the complainant had been in a relationship that ended approximately 12 months before the offending.

4You fell pregnant in the course of that relationship, and it was the complainant's view that there should be a termination.  That did not occur, and your son was born on 1 October 2014.  You retained custody of the child, and animosity developed between you and the complainant and his mother.

5As a consequence of that animosity, you were the subject of a family violence order at the instigation of the mother, which commenced on 1 April 2015.  The conditions of that order included that you were not to be within 50 metres of her address, here in Horsham.

6On 19 April you were served with an additional order, wherein your ex-de facto was the complainant.  It was subsequent to you being served with that order by the police late in the afternoon that you proceeded then to engage in the offending by procuring for yourself from the kitchen a long breadknife, driving your son to your grandparents' residence to leave him with then, and you then proceeded across to the residence that you and the complainant had formerly shared.  You walked into the residence and then proceeded to threaten the complainant.

7The entry into the premises constitutes both an offence of contravening the family violence order, and then going inside without any invitation, without any right to do that, being armed with the knife, is the aggravated burglary.

8The matter was resolved, and you are to be sentenced on the basis that you were not to use the knife on the complainant, but rather to menace him with it, for the purpose of confronting him and threatening him.  When you proceeded to do that, the complainant managed to wrestle the knife from you.  In the course of that he was pushed against the wall and you grabbed him at one stage by the throat.  That assault and pushing constitutes the common law assault count, Charge 3.

9Throughout the course of this scuffle, you were verbally abusing him and threatening that you were going to get rid of him, and were going to kill him, while brandishing the knife, and those verbal threats constitute Charge 2, making a threat to kill.  In the course of the altercation, the complainant suffered a minor laceration of the hand, and you then left the scene before the police were notified.

10You returned to your home, collected your belongings and also some belongings for your son, and loaded them into the vehicle, collected your son from your maternal grandparents, and started driving west in an attempt to find somewhere to flee to.  You were in contact with your parents, and after that discussion you turned around and handed yourself in to the police station.

11You were arrested, and the police formed the view that you were unfit to be interviewed at that point, and they contacted the Ballarat Psychiatric Service.  When they arrived, the view was taken that you were in fact fit to be interviewed, and then a record of interview was undertaken.

12In that record of interview, you made florid statements indicating the ill feelings that you harboured against the complainant and his mother arising out of the original pregnancy, and fantasies about murdering him, and expressing regret you did not take further action in the course of the altercation.  You were denied bail and spent some 33 days in custody.

13Both the complainant and his mother have filed victim impact statements.  They are both dated 15 May this year, and both express extreme concern as to their personal safety and the implications that the offending had had on them at that point.  Those concerns were justified in that, upon your release on bail, you have been dealt with for persistent contravention of a family violence intervention order and making a threat to inflict serious injury.

14On those two counts in the Horsham Magistrates' Court in September you were sentenced to a 12 month community corrections order, which remains in place.  You have an outstanding matter for a breach of an intervention order.

15Obviously, I must take into account the impact of your offending on the two complainants in this matter.  And no doubt it did have a significant impact on both the mother, and also on the complainant.

Assessing the seriousness of the offending

16The offence of aggravated burglary can occur in a wide variety of circumstances.  Here, you had a pre-existing animus against the complainant.  This matter was resolved on the basis that the weapon you took was merely for the purpose of confronting him and threatening him rather than actually using it.  Notwithstanding this, it must have been a frightening experience for the complainant, and was accompanied by wild verbal threats.

17The events must be seen as in the mid-range of seriousness, given that you did have a weapon.  It did occur in daylight, and you had been in that house previously - it was the house of the two of you before you separated - but it was not in company, and was not with an intention to actually physically injure him, but you were certainly well intent on making a verbal threat to him, and you carried that out.  So it is in the mid-range of seriousness.

Subsequent events

18As I have indicated, immediately after the offending, you gathered some of your belongings and commenced to drive out of Horsham.  You then spoke to your parents and presented yourself to the police station.

19As I have indicated, the interview you participated in with the police was notable for its florid language and aggressive statements against the complainant and his mother, as well as the resentment you expressed, arising out of his conduct in relation to your pregnancy.

20You remained in custody for 33 days and were granted bail by a Supreme Court judge.  You were separated from your then six-month-old child over that period of remand, and your parents brought the child to Melbourne three days a week for you to continue to breastfeed the child in the women's prison.

21Upon your release, there were apparently proceedings in the Federal Circuit Court in relation to the custody of the child, and you are now in a shared custody arrangement with the complainant, and you have custody of the child Monday, Wednesday and Friday, and your parents are facilitating the custody changeover arrangements that avoids any interactions between you and the complainant.

22In support of your bail application, you were examined by Dr Lester Walton psychiatrist.  He found that you were suffering from a major depressive disorder.  He found it unusual that that depressive disorder arose in the course of your pregnancy, which usually is unaccompanied by depression as far as women are concerned.  You had been on antidepressant medication, but in the week before the offending, you ceased that medication.

23Dr Walton was impressed with your interaction with the child, and noted that you had no significant cognitive deficit, and were of normal intelligence.  He found no evidence of a psychotic disturbance.  It was his opinion, however, that you depressive disorder distorted your capacity to exercise proper judgment.  He was of the opinion that you were seriously mentally ill at the time of the offending.

24Also before me was a report from Dr Robert Proctor psychiatrist, dated 14 October 2015.  He first saw you on 23 September.  Having read the plea summary, he opined that you were suffering from a psychosis at the time.  Your counsel does not rely on that diagnosis.

25Dr Proctor placed you on a mood stabiliser and an antipsychotic, and when he saw you on 14 October he found that you were then stable, but were still very angry about your former partner.  It was his strong recommendation that you continue to take medications as prescribed.

Personal circumstances

26On the plea, your counsel put before me a number of matters in relation to your personal circumstances.  As I said, you are aged 23 and come from a good, stable family, and achieved year eleven at the local college.

27You have never been before a court before, and you have no antisocial behaviours such as the use of alcohol and drugs, although that is to be qualified by an admission of use of Ice to the community corrections officer this day.  Your current position is that you are a fulltime mother, but hope to get back into the workforce in the grain industry or in hospitality in due course.

28In mitigation, your counsel referred to your early plea of guilty, and the fact that this matter did not require a committal.  It was not disputed by the prosecution that this was an early plea of guilty and resolved at the first committal mention.  Your counsel emphasised that the complainants had been spared the need for cross-examination.  He also referred to your full admissions in the record of interview and cooperation in that sense with the police in handing yourself in to the police.

29I accept that you have taken responsibility for your conduct by your plea, and that you have insight into your conduct.  From the report of Dr Proctor, you appear to be stable under medication at this time.  You cannot rely on remorse, however given the circumstances between you and the complainant, this is not a matter of surprise.

Sentencing submissions

30The central thrust of your counsel's submissions was that it was that the interests of sentencing could be served by the imposition of a community corrections order.  He relied on the case of Verdins in support of a reduction in your moral culpability for the offending, and also as not being an appropriate vehicle for general deterrence.

31The learned prosecutor Ms Moran did not accept that there should be any reduction in moral culpability for your offending on account of your mental condition, as you were fully in charge of your faculties when you attended at the premises.

32

I accept your counsel's submissions that there should be some reduction in your moral culpability for your offending, as I accept on the basis of

Dr Walton's report that you were suffering at the time from a serious mental condition, being major depressive disorder, which he opined did distort your capacity to exercise proper judgment.  Your mental condition now is such that there is to be some reduction or moderation in general deterrence within the sentencing synthesis.

33Your counsel strongly emphasised your relative youth and your lack of prior convictions as being relevant to the appropriate sentence.  Mr Gardner, your counsel, submitted that your prospects for rehabilitation are good, given the stabilisation of your medication and the incentive associated with your young son.  You also have strong family support.  Your parents and grandmother were in Court on the plea to support you.  Your mother was unavailable, as she was looking after the child.

34I would assess your prospects of rehabilitation as reasonably good.  It is clear from the reports of the psychiatrists that you need continued medication and counselling in order to address your underlying major depressive disorder.

35In addition to that, due to the joint parenting of your child, you are likely to be in a position of needing to engage with the complainant on a regular basis during the upbringing of the child.  This is likely to cause circumstances that will give rise to pressure on your psychological state.  Only time will tell whether you are able to navigate those hurdles.

36Your counsel emphasised that your path to rehabilitation is already established, with you being engaged with three different counsellors and agencies as well as being in the shared parenting arrangement with the complainant in relation to your son.

37Your counsel submitted that any sentence of imprisonment to be served now would be more burdensome for you, given your underlying psychological state and the separation from your young son, and would indeed set back your path to rehabilitation.  He submitted that that could be inferred from the material of Dr Walton, that you would find imprisonment more burdensome than other able-bodied persons in these circumstances.

38I am prepared to accept that, given your psychological condition, and the age of the child, and your prior relationship difficulties, you would find imprisonment more burdensome.  Further, Dr Walton notes that after a brief period on remand, the threat of imprisonment will have a salutary effect on you.

Appropriate sentence

39A Court is always required to apply the principle of parsimony and search for a sentencing option that does not involve a term of imprisonment.  In Boulton, the Court of Appeal has emphasised that community corrections orders may be an important sentencing option for youthful offenders.  They are also a sentencing option where the court considers that rehabilitation should be given emphasis, and where the community can be protected by appropriate conditions.

40Here, you are a first offender, and although aged 23 you are a youngish offender.  In circumstances where a serious major depressive disorder only emerged during the course of your pregnancy, and where your child is now only 13 months old and will clearly benefit from your maximum involvement, and where according to Dr Proctor your medication regime has stabilised your mood and condition, I am satisfied that to impose a sentence of imprisonment on you now would retard your rehabilitation and disparately impact on your child.

41It is the community interest that, notwithstanding your obvious difficulties with the father of the child, the complainant, that you and the complainant establish a stable modus vivendi for the upbringing of this child.  The complainant and his mother are also entitled to lead lives free of abusive interventions by you.  Regardless of the history of your relationship with the complainant, that must all be put in the past.

42In effect, you have got to grow up and the mature, and the focus has got to be on you resuming a lawful life and seeking the best outcome for your child.  Many aspects of that will be controlled by the Federal Circuit Court, but it remains the case that your ability to engage in civil relations with the complainant requires your continued adherence to medication and counselling regimes as identified by Dr Proctor.

43The sanction of a community corrections order will allow you to be under the supervision of a community corrections officer who will ensure your continued compliance with whatever regime is imposed by Dr Proctor and other agencies with whom you are involved.  This will protect the community, in particular the complainant and his mother, from further criminal engagement with you.

44You must fully understand that family violence intervention orders must be complied with.  They are not just pieces of paper.  You have already breached the order on the occasion of this offending, and have done so subsequently.  I can assure you, it is very unlikely that a magistrate will tolerate any further breaches.

45A community corrections order carries with it an obligation that you be of good behaviour.  This means that, should you commit an offence carrying a term of imprisonment, which includes breaching a family violence intervention order, then you breach the community corrections order; breach the family violence intervention order, and this can trigger sentencing on those two matters and resentencing on these offences.

46This offending was arguably out of character.  However, your conduct since the offending indicates that you require close monitoring in order to return to be a law abiding member of the community.

Purposes of sentencing

47The basic purposes for which a court may impose a sentence are punishment; deterrence both specific and general; rehabilitation; denunciation; and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences; your culpability for them; your personal circumstances; and those of the victim if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

48Having weighed the circumstances of the offending, and the reports of Doctors Proctor and Walton that there is to a reduction in moral culpability, and general deterrence is to be moderated, whilst general deterrence is an important consideration in sentencing for these types of offences, and denunciation is an important factor as well as specific deterrence, I have taken into account that you have served some 33 days on remand, which for a first time offender with a young, breastfeeding baby, would have been very onerous.

49The report of Dr Proctor now indicates that your condition is stable.  Your age and lack of prior convictions, and your mental condition is such that this offending should be seen as out of character, and that the community interest is in your continued reintegration into the community.  That progress will be enhanced by your shared parenting of your son, would be retarded by a sentence of imprisonment.

50In all these circumstances, I intend to impose a community corrections order with conditions.  As the offending was a single course of conduct, it will be an aggregate sentence.

51I must explain this sentence on you.  I propose to sentence you to 33 days' imprisonment and a 30 month community corrections order.  I will declare that you have served 33 days' imprisonment.  The community corrections order will carry a condition that over the period of 30 months, you undertake 125 hours' community work.  In addition to that, you will be under the supervision of a community corrections officer.

52Further you will be required to undertake assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager.  That will seek to address the recently disclosed use of drugs.  The other also will oblige you to undertake any mental health assessment and treatment, which may include psychological; neuropsychological; psychiatric; or treatment in a hospital or residential facility as directed by the regional manager.  You must also participate in programs or courses that address factors relating to your offending behaviour as directed by the regional manager.

53I will also make an order that you provide a forensic sample, which is a mouth sample to go onto a database, and I note that you have consented to that and that if you do not give the sample, the police are entitled to use reasonable force to obtain it.

54I have made a forfeiture order or a destruction order for the knife.

55As I said, a community corrections order - this has been explained to you by a magistrate, but I must reemphasise it - for the 30 months you are on a community corrections order, and I will ask Mr Gardner to explain the order that I am going to hand to you in a moment and get you to sign it, but if you commit an offence in the next 30 months, that breaches the community corrections order, and you will be dealt with for that offence; you will be dealt with for breach of the community corrections order, which carries a three month term of imprisonment, and you then expose yourself to resentencing for these offences.

56And a breach of the order includes failing to comply with the conditions of the order, which is 125 hours' community work; turning up on supervision appointments; going to treatment or rehabilitation that the regional manager directs you to.  And it also requires you to attend at the Office of Corrections within two business days of today.  It may well be because you are already in their system they might waive that, but in the meantime, you should contact them within two business days.

57I must emphasise that you now have a significant criminal record, and as I said, you will not get any sympathy from me if you breach this order, nor from a magistrate should you come before a magistrate for breach of the family violence intervention order that you are on, both the existing one for 12 months, the balance of it, and this one for 30 months.

58So I will hand the proposed order down, Mr Gardner, if you could take your client through it and get her to sign it, and then I will resume.  Is there any other matter at this point?

59MR GARDNER:  You'll just need to address 6AAA in due course.

60HIS HONOUR:  6AAA in due course, yes.

61(Short adjournment.)

62(Community-based order signed and acknowledged.)

63HIS HONOUR:  Ms Maybery, I have signed the community corrections order.  As I said, the 30 months you are on this community corrections order, you will get no sympathy from me.  It is an aggregate sentence on the charge of aggravated burglary, common law assault, contravene the family violence order, and making a threat to kill.

64Thirty-three days' imprisonment; 30 months community corrections order; 125 hours' community work; under supervision; assessment and treatment for drugs, the use and dependency; mental health assessment; and offender programs.  So you might be sent to anger management.  They might require you to go into couples' training or relationship breakdown consultation so you can, as I say, learn to co-parent this child.

65OFFENDER:  I've been to those programs, Your Honour.

66HIS HONOUR:  Pardon?

67OFFENDER:  I've been recently to those programs.

68HIS HONOUR:  All right, well you might need more of them, because you have got to learn that these are not pieces of paper, community corrections orders, and neither are family violence intervention orders pieces of paper.  And I cannot help the past. Mr Gardner, I want to thank you for your assistance in this plea of late notice.

69MR GARDNER:  My pleasure, Your Honour.

70HIS HONOUR:  And I thank the prosecutor and her instructing solicitor.  So adjourn until 10.30 on Monday.

71MR GARDNER:  Your Honour, 6AAA.

72HIS HONOUR:  6AAA.  If you had not pleaded guilty, I would have imposed a six month sentence of imprisonment, and a 30 month community corrections order.  Right.  Adjourn until 10.30 Monday.

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