Director of Public Prosecutions v McDonald
[2013] VCC 1214
•23 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL McDONALD |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 14 August 2013 | |
DATE OF SENTENCE: | 23 August 2013 | |
CASE MAY BE CITED AS: | DPP v. McDonald | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1214 | |
REASONS FOR SENTENCE
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Subject: Plea – sentencing
Catchwords: Make threat to inflict serious injury - intentionally cause serious injury - contravene Family Violence Intervention Order
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 5 and a half years' imprisonment, minimum term 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms E. Bradley Mr K. Reynolds | Leanne Warren & Associates |
HIS HONOUR:
1 Paul McDonald, you have pleaded guilty to one charge of making a threat to inflict serious injury and one charge of intentionally causing serious injury on indictment C1308959, and to two uplifted summary charges of contravening a Family Violence Intervention Order.
§ Making a threat to inflict serious injury carries a maximum penalty of 5 years' imprisonment;
§ Intentionally causing injury carries a maximum penalty of 10 years' imprisonment;
§ Contravention of a Family Violence Intervention Order carries a maximum penalty of 2 years' imprisonment.
2 You are now aged 31, having been born on 31 October 1981. At the time of the offending you were aged 30.
3 The circumstances of your offending are as follows.
4 At the time of the offending you have been in a relationship with the victim for seven and a half years. You have two children together from that relationship.
As to Charge 1 - Making a threat to inflict serious injury
5 On Friday 21 September 2012 you and the victim were staying together at the home of a male friend at an address in Sebastopol. At some time after 8 pm the friend went out to the shops to get some milk. Believing that you had heard someone in the backyard you armed yourself with a knife and went to investigate. You looked in the yard and found nothing. You then went to the bedroom where the victim was sleeping, still armed with the knife, and woke her up by shaking her. An argument commenced. You told the victim that she was "nothing but a dirty ugly coon", and a "dirty filthy slut". The victim got up and went to the kitchen where the argument continued.
6 The friend came home and found you and the victim still arguing. You were seated on the couch in the lounge room still armed with the knife. The victim then moved to the front door of the house, intending to leave, when you seized her throat with your left hand and held the knife to her throat with your right hand. You said to the victim, "I'm going to give you a skunk scar", and that you were going to "deform" the victim. You further said that, "I'm going to bowl you and get away with it", and that, "I have been thinking about it for a while".
7 The victim managed to free herself and call the police who arrived a short time later, arrested you and took you to the Ballarat Police Station where a videotaped interview was conducted.
As to Charge 2 – Intentionally causing injury
8 On Sunday, 7 October 2012 at about 2.30 pm you and the victim were together at an address in Sebastopol when police came to the premises following reports of a man assaulting a woman. The victim told police that following an argument about a T-shirt she had been assaulted by you.
9 You had come into the kitchen, seized the victim by the throat, pushed her up against a bench and then thrown her onto the floor. At this point the victim's brother intervened, telling you to stop. You pulled a knife out of a drawer, pointed it at him and told him to "fuck off". The victim continued to beg you to stop. Eventually you did and the victim went and locked herself in the bathroom.
10
After about an hour the victim left the bathroom and told you that she was leaving and began packing her things. The victim and her brother arranged with an aunty to come and collect them and their luggage and were waiting outside the house for her to come when the victim went back into the house to collect some more items.
11 You then approached the victim and said to her, "You've been cheating on me whilst I was in gaol". You began punching her with clenched fists to the face. Her brother tried to help his sister and get you out of the house.
12 Eventually the victim managed to get out of the house and was leaning against the fence when you came out and kicked her in the face. You then dragged her by the hair along the concrete. She was bleeding from her face. You threw food at her then stomped on her left hand and returned inside, leaving her crying on the ground.
13 As a result of the assaults by you the victim sustained soreness to her back, swelling around her eyes and swelling and bleeding to her face. She refused the offer of an ambulance and told police that she would attend hospital on her own.
14 When police arrived the victim was outside the house and you were inside. You came outside when requested by police. You were arrested and taken to the Ballarat Police Station where a videotaped interview was conducted. You exercised your right to make a “no comment” interview.
As to the two transferred Summary Charges of Contravening a Family Violence Intervention Order
15 On 6 December 2011 the victim had obtained an intervention order from the Ballarat Magistrates' Court which provided that you not commit family violence against her. You were in court when the order was made. The order was served on you. The order stated on its face that it expired at midnight on 5 December 2012 unless it was extended or varied prior to that time. Both indictable offences occurred whilst the intervention order was in force.
16
The incident on 7 October 2012 occurred whilst you were on bail following the incident on 21 September 2012. On 7 October a bail justice remanded you in custody and you have been in custody since then.
17 You have an extensive criminal history, commencing with appearances in the Horsham Magistrates' Court in 1999 when you were aged 18 for recklessly causing injury. The following year you were before the Magistrates' Court on seven occasions, four of which were for offences of violence, including intentionally cause injury, assault by kicking, assault with a weapon and recklessly cause injury.
18 You have re-offended almost every year since then, including multiple occasions with violence offences. You have prior convictions for recklessly cause injury, recklessly threaten serious injury, threat to inflict serious injury, threat to kill and intentionally threaten serious injury. Other offending has included assault, assault in company and assault by kicking.
19 I was advised by your counsel on the plea that you have spent six of the past ten years in custody and the longest period you have remained on release has been 18 months.
20 Your victim gave evidence on oath in court on the impact of your offending. Apart from the pain and suffering from physical injury, she feels severe and continuing anxiety which prevents her from leaving the home. She gets breathless from anxiety if she goes outside and has no social life. She has suffered seizures and is on medication for her anxiety condition. She appeared genuinely very traumatised.
21 I turn now to your personal circumstances.
22
You had a sad start to life with your parents separating when you were five or six, thereafter being raised by your mother. You have had minimal contact with your father, who had a history of drug use and receiving treatment for schizophrenia and who died in 2006. In recent times you have had some contact with your mother and minimal contact with one of your sisters.
23 Reports from clinical psychologist Mr Jeffrey Cummins and Dr Wayne McDonald, your treating general practitioner, were tendered at your plea.
24 Mr Cummins refers to your report of having been a voluntary patient at the psychiatric ward at Ballarat Hospital approximately nine years ago, and your history of long-term drug addiction and mental health medications. He said that your long-term drug addiction has been to both heroin and amphetamines, although you had been essentially free of that use over the past three or four years, excepting some sporadic relapses on morphine and intermittent experimentation with ecstasy tablets.
25 Your treating GP, Dr McDonald, has been treating you for heroin addiction since May 2011. Treatment comprises an opiate substitution therapy. You have also been receiving medication for bipolar affective disorder following a diagnosis of that disorder after an admission to the Grampians Mental Health Services “some time ago”. Dr McDonald concluded that you have a mental illness as well as drug addiction that has only been partly treated due to your repeat episodes of incarceration or arrest.
26 Mr Cummins, who had not seen Dr McDonald's report, doubted the correctness of bipolar mood disorder, instead preferring a diagnosis of persistent depressive disorder, which had developed in late teenage years or your early 20s or perhaps even earlier. This diagnosis was based on what appears to have been one interview of probable relatively short duration and based upon your own self-reporting recollections.
27 Your offending is obviously particularly serious. Your current offending was committed within one month of you being released from custody and while serving a Community Correction Order. That order had been imposed as part of a sentence which included a conviction for breach of a Family Violence Intervention Order. You were also on bail for the offence represented by Charge 1 at the time you committed the offence on Charge 2.
28 The nature of your conduct on each occasion, comprising the threat on 21 September and the assaults on 7 October, was particularly terrifying. Your assaulting on 7 October involved a continuing episode of punching to the face, kicking to the face, dragging by the hair and stomping. Your offences are aggravated by the fact that at the time you were subject to prohibitive conditions by the imposition of an intervention order which was specifically designed to prevent such conduct against the protected person.
29 Your assault on your estranged partner was callous and brutal and to be abhorred. Its culpability is in no way reduced because it was committed within the frustration of a domestic argument or issues. The courts have stated on many occasions that such domestic violence will not be tolerated and that general deterrence is a very important principle in the sentencing disposition.
30 Because of your conviction and sentence to a term of imprisonment on a threat to kill offence on 21 January 2005 you fall to be sentenced as a serious violent offender on the current offence, Charge 1, making a threat to inflict serious injury.
31 Under the Serious Offender provisions of the Sentencing Act on your conviction and sentence to a term of imprisonment, whether suspended or not, on a violence offence charge I am required on the violence offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary in order to achieve the purpose of protecting of the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
32 This means that the sentencing task in respect of Charge 1 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentence is imposed and to achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances. However because of the particular circumstances of this case and the mitigating factors in your case I do not propose to do so.
33 Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 1, the sentence I impose is to be served cumulatively. Allowing for the matters that I have already outlined, in my view it is not appropriate in the particular circumstances of this case to impose cumulation other than that which I have in fact ordered.
34 I note here that the prosecution did not call for a disproportionate sentence as is contemplated by the Sentencing Act.
35 In mitigation I take into account the matters urged upon me by your counsel including:
§ your plea of guilty,
§ your unfortunate early life,
§ the time you have already been in custody and the nature of that custody precluding you from the benefits of rehabilitative courses whilst having been in protective custody,
§ that your time spent in custody on this sentence will be more onerous for you than upon a person in normal mental health, and
§ your longstanding opiate addiction.
36 I do not accept however that there is sufficient material before me to accept that there is clear and cogent evidence that your conduct on either occasion was affected by your diagnosed medical condition of bi-polar disorder for the purposes of any moderation of your moral culpability for the offending.
37 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you as an offender and general to deter other like-minded individuals), rehabilitation, denunciation and protection of the community.
38 In sentencing I must have regard to a range of matters such as the seriousness of the offence or offences, your culpability for the offending, your personal circumstances and those of any victim. 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.
39 The seriousness of the offending considered together with your history of previous offending and personal circumstances requires the imposition of imprisonment and for a significant term.
40 Mr McDonald, would you please now stand.
41 On Charge 1 of making a threat to inflict serious injury you are convicted and sentence to two years’ imprisonment.
42 On Charge 2 of intentionally causing injury you are convicted and sentenced to three years’ imprisonment.
43 On each transferred summary charge of contravention of a Family Violence Intervention Order you are convicted and sentenced to nine months’ imprisonment.
44 Charge 2 is the base sentence.
45 I direct that 18 months of the sentence imposed on Charge 1 and six months of each of the sentences imposed on the two summary charges be served cumulatively on the sentence imposed on Charge 2 and upon each other.
46 The total effective sentence is 5 and a half years’ imprisonment.
47
I direct that you serve a minimum period of 3 years’ imprisonment before being eligible for parole.
48 I also direct, pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charge 1 as a serious violent offender within the meaning of that Act.
49 Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 320 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
50 Is that daily reckoning correct?
51 COUNSEL: Yes, Your Honour.
52 HIS HONOUR: Thank you. Pursuant to s.6AAA of the Sentencing Act 1991 but for your pleas of guilty the total effective sentence over all charges that would have been imposed is 7 years’ imprisonment with a minimum period of 4 and a half years to be served before eligibility for parole.
53 You may be seated, Mr McDonald. Is there anything else for either counsel?
54 COUNSEL: No, Your Honour.
55 HIS HONOUR: Thank you.
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