Director of Public Prosecutions v McFarlane

[2016] VCC 1476

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00946

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT MCFARLANE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 October 2016
CASE MAY BE CITED AS:	DPP v McFarlane
MEDIUM NEUTRAL CITATION:	[2016] VCC 1476

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	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Mr C.Terry	Matthew White & Associates

HIS HONOUR:

1Brett McFarlane, earlier today I granted your application for a sentence indication, making it clear that if you plead guilty I would not send you to prison.  You then plead guilty on arraignment to a charge of aggravated burglary and common law assault.

2The circumstances of the offending can be briefly set out as follows.  Your eight year marriage and 13 year relationship with your ex-wife faltered in around May 2015, much to your shock.  At first your ex-wife moved out of the family home.  She would regularly, if not daily, return to the home.  It seems, or at least on your account, no final decisions had been made as to the marriage.  You believed that there was a prospect of reconciliation, which you very much hoped would eventuate.

3In July 2015 the complainant's circumstances or your ex-wife's circumstances altered and by agreement she returned to the home and you moved out to a nearby residence.  All your belongings remained in the house.  It seems an arrangement had been made that if you were planning to, or wanted to come back to the house you would send a text message in advance.

4You did that on 29 November 2015 but your ex-wife did not see the text before you arrived.  You came and discovered that she was in bed with a man, the victim in this matter of the common law assault.  You left but later sent some aggressive text messages and unfortunately returned to the home and kicked the door in and went looking for the male.  Once you found him you punched him while holding your keys, causing facial cuts.  You then wrestled with the male.  Your ex-wife witnessed all this and was much distressed.  You left shortly after when told to.  Later that day you went to the police station on request and made frank admissions. 

5The defence in this matter contended that the element of being a trespasser in all the circumstances would be difficult to prove and thus any plea to what is a serious offence of aggravated burglary is of considerable value.  You have always been prepared to plead guilty to the assault charge.

6Your counsel in his plea outlined your background which establishes, now at 46, you are a man of good character, you have a very solid work history, displaying responsibility, talent and innovative practices as a professional tennis coach.  All this is a solid basis for what your future holds.  You have moved to Tasmania as a consequence of these events, away from Ballarat, giving up your job there.  Fortunately you have re-established as a professional tennis coach in the area of Royal Tennis in Tasmania.

7So the high likelihood is you will resume your lawful ways as a contributor to your community.  In that sense your path forward is not by a step by step rehabilitation but to immediately resume the ways that you behaved before this.

8The testimonials tendered on the plea outlining your contributions to the Ballarat community evidenced impressive qualities.  Indeed, the testimonials generally well establish your qualities and capacities.  Thus the emotional strains of the marriage breakdown and the intensity of discovering your wife was in bed with another man, saw you act out of character in a short burst of aggression which you now well regret.

9However, let it be clear.  Bursting into a family home by breaking down the door and assaulting a male guest is intolerable, and the emotionally charged circumstances and loss of control is no excuse.  Women are entitled to move on and see who they wish without ex-partners displaying violence.  Your
ex-wife was entitled to feel safe in her home.  Your conduct attacked that important sense of safety.  Likewise her male guest was entitled to feel safe there as well.  The victim impact statements from them reveal the adverse effects upon them of your crime have continued.  The whole episode was violent and intense but brief and you left when asked to.

10You have not since shown any violence towards your ex-wife or poor behaviour towards her.  Importantly, you had not displayed any violence in the relationship before.  What is important is that you and the community appreciate that the courts denounce any violence, any family violence.  That said, the penalty itself must be proportionate and in this case gaol is not called for, but most often it is.  In most circumstances men committing these sorts of offences would be squarely facing gaol.

11Also the message of deterrence to other men facing the end of a relationship must be sent clearly.  That message being if a man resorts to, or reacts with, violence because of a sense of being jilted, that will be no excuse.  Many men face emotionally difficult cessation of relationships but they face it stoically with dignity and never with violence.

12Another important sentencing consideration is, to use the words of the statute, to facilitate your rehabilitation, but I have explained how I see rehabilitation occurring in this case.

13Your counsel urged that a fine be imposed.  The prosecution contended that there ought be programs to advance your rehabilitation or facilitate your rehabilitation, and that punishment in the form of unpaid work was appropriate.  Thus the penalty should be a community corrections order.

14Taking all those matters into account and all the circumstances of the offence and you as an offender, including your move to Tasmania, in my view, a fine is appropriate.  A community corrections order is not appropriate in this case.  You need no programs, as I see it, to rehabilitate.  You cannot do any unpaid work as part of a community corrections order unless you relocate back to Victoria.  That is counter-productive, including counter-productive, it seems to me, to your ex-wife and her male friend, who get some comfort, I think, from the fact that you are interstate.

15A fine is punishment and appropriate in this case. The parties were at one about whether there was a need for the added and significant life-long punishment of a conviction. I have considered the provisions of the Sentencing Act and all the circumstances of this case and especially your circumstances, especially your future and your potential plans for continuing your profession and a need to coach children and in the end I take the merciful approach of not imposing a conviction. This is your only blemish and you can and are entitled to ask for a merciful outcome, which be assured, Mr McFarlane, this is.

16I take into account your financial circumstances in imposing the fine.  I intend to impose an aggregate fine for the offences.  Please stand.

17Without conviction, as an aggregate fine for the offences of aggravated burglary and common law assault you are fined $3000.  I take it you will need some time to pay that and the timeframes that I have in mind is three months.  Is that satisfactory?

18MR TERRY:  Yes, Your Honour.  I seek that.

19HIS HONOUR:  So without conviction, a fine of $3000 with three months to pay that fine.  Is there anything further required?

20MR TERRY:  No.  As Your Honour pleases.

21MS DUCKETT:  They are all of the orders required for the stay, Your Honour, thank you.

22HIS HONOUR:  Thank you.  I thank counsel for their very significant assistance in dealing with this case with Mr McFarlane having to travel from Tasmania in the one day.  You can leave the dock.

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