Director of Public Prosecutions v Moustique

[2020] VCC 306

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-02053

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATHIEU MOUSTIQUE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	20 March 2020
DATE OF SENTENCE:	20 March 2020
CASE MAY BE CITED AS:	DPP v Moustique
MEDIUM NEUTRAL CITATION:	[2020] VCC 306

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 D. Brown	Office of Public Prosecutions
For the Accused	Miss K. Blair	Gordon Legal

HIS HONOUR: 

1Mathieu Moustique, in 2018, while you were still young, you formed an important intimate relationship with the victim.  She was younger than you. 
The victim moved into your parents' home.  Your relationship had some very difficult aspects, the most prominently two miscarriages.  This understandably caused the victim to be particularly vulnerable and fragile in her mental health.  You yourself were having difficulties with your own mental health, a problem that predated the relationship and your offending.

2You pleaded guilty to four crimes occurring on two separate days at your parents' home.  On 12 May 2019, you and the victim argued in your shared bedroom.  You first kicked the victim to her legs before pushing her onto the bed, where you strangled her to the point that she lost consciousness for approximately 30 seconds.  When she regained consciousness, you continued to kick and punch her.  Ultimately, the victim was taken to the Geelong Hospital but she did not say how her injuries were caused.  This incident gave rise to the first charges of intentionally causing injury and reckless conduct endangering persons.

3Two months later, on 5 July 2019, you repeated your violent attacks. 
You punched the victim causing her to bleed from the mouth, you pulled her hair and grabbed her by the throat.  She went into panic.  She described the circumstances or the circumstances were described in the prosecution's tendered opening.  That she sat down on the bed and you sat next to her. 
You then placed your palm on her head and twice pushed her head onto the bed.  You slapped across the face multiple times and punched her once to the eye.  You then used your forearm to hold her down by her throat. 
On this occasion, she did not lose consciousness and was still able to breathe.  This attack gave rise to the second charge of intentionally causing injury and reckless conduct endangering persons.

4After that attack, she went again to the Geelong Hospital but this time, the police were called.  You were arrested and you made admissions to your violent and dangerous attacks.

5The victim has prepared a victim impact statement.  I have read that victim impact statement carefully.  She, as I have already expressed that she was someone who was at the time not coping as she said with mental health, depression and anxiety from all that had come to affect her before, including the two miscarriages.  The crimes themselves brought back other traumas from her past where bullying and the like had occurred, causing her to have difficulty controlling her emotions.

6Thus, she was vulnerable.  She speaks about the physical effects of over time at all healing but the psychological effects remain.  She has attended a psychiatrist to try and get some help with grief lessons and lessons about relationships and emotions.

7She is studying online but finding that a struggle given the matters that of all the things that have occurred to her which include now, she discovered at the time of the second attack or shortly thereafter that she was again pregnant, and fortunately a child was born to you both.  You have limited involvement with the child but she is endeavouring to bring up the child on her own.  That is not what she had planned.  I take into account the impact upon her of what you did.

8The seriousness of your offences and the violence in the home has been a focus of appellate court decisions of late.  This was expressed by the Court of Appeal in the decision of Ristevski where the Chief Justice, Ferguson JA, and Whelan JA, said:

'There was a time when the seriousness of such domestic violence offences was not properly recognised.  That is no longer the case.'

9Other cases have also over the years expressed the view that positions that were once taken by the courts perhaps in earlier times to violence in the home are no longer appropriate.  In Pasinis v The Queen in 2014, the Court of Appeal said:

'Historically, perpetrators of family violence were rarely prosecuted.  Even when offenders were convicted of such offences, they often received lenient sentences.  Fortunately the criminal law now gives greater recognition to the devastating effects of family violence.  This makes both specific and general deterrence very important factors in sentencing men who assault their partner.'

10The High Court has dealt with this in Munda v The State of Western Australia and importantly in the Victorian case of The Queen v Kilic.  In 2017, the Court of Appeal in Kalala gave an overview in an important decision relating to domestic violence, although that case involved incitement and murder of a domestic partner.  The Court said in that judgment:

'The trial courts of this State are imposing sentences for family violence offences with increasing frequency.  This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations.  In Filiz v The Queen, the Court acknowledged the "shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44."'

11Finally, in that decision, the Court of Appeal referred to Pasinis and said:

'Sentencing law has long recognised the prevalence of violence by men against women in (or after) domestic relationships, and the importance of general deterrence in such circumstances.'

12Just a month or so ago, the Court of Appeal returned to this topic in
Brown v The Queen although it was a conviction appeal.  The Court said at paragraph 26:

'The seriousness of domestic violence is not measured solely by the physical manifestation of the injury.  Individuals, and it is most often women and children who suffer the brunt of domestic violence, are entitled to be safe in their own homes.  The compromising of the security of the home and the breach of trust reposed in a domestic partner are very important factors when assessing the severity of a particular offence.  There is a strong public interest in the due prosecution of charges of this kind.'

13In your case, your crimes are to be assessed as serious by reason of the victim being vulnerable as she was and entitled to feel safe in the house in which she was living.  Further, you repeated your attacks rather than take stock and learn a lesson from what you had done.  The injuries, especially cutting the victim's lip, were concerning.  The kicking and the punching repeatedly in the bedroom show a troubling side to your character but most serious was the strangulations.  This is an act of asserting power and dominance.  It has been seen as an aspect of domestic violence that is most concerning and it often is a factor that later sees an increase in violence and repetition leading to the matters that referred to earlier.

14Apart from your youth and mental illness, matters which I will refer to soon, your moral culpability is high by reason in particular of your repeated attack in July after the first one in May, when you should have come to your senses.

15Ordinarily, a significant sentence of imprisonment would be imposed unless there was powerful mitigatory matters.  There are in this case very significant factors that I have considered.  First is your young age and in combination, your lack of prior convictions means all the principles set out in the important cases in The Queen v Mills and Azzopardi v The Queen are to be appropriately applied here.  Thus, your understanding of the consequences of what you were doing was less than what it might have been with a worldly adult, as this arises out of the fact of your young age and immaturity.

16Further, if you can be reclaimed, I should give emphasis to rehabilitation over general deterrence and denunciation.

17In your case, your mental illness is important.  I have read the reports of
Ms Hargraves, your treating psychologist.  Important is that you were undergoing psychological treatment before and at the time of your offending, thus your emerging mental health problems have not arisen because of your current circumstances.

18Your previous traumas have led to a diagnosis of Post-Traumatic Stress Disorder and adjustment disorder with anxiety and depressed mood. 
Thus, in all the circumstances, based on all the material, I accept the important conclusion of the treating psychologist, Ms Hargraves, in which she said your behaviour in regards to the charges is consistent with difficulty acknowledging, regulating and expressing emotion in a constructive way and moderating your behaviour accordingly.  It is my clinical opinion, she said, that the significant impact of your symptoms would have inhibited your capacity to make reasoned decisions and impacted on your moral culpability.  Thus, the principles set out or articulated in the decision of The Queen v Verdins are engaged.  These have been endorse by the High Court just this week in Guode v The Queen.

19Your moral culpability is lower.  Thus, the full weight of denunciation and punishment must be moderated.  Your case, given your youth and mental health problems are considered deterrents to you and to others, ordinarily both very important considerations, must be in this case appropriately moderated.  Gaol would be more onerous for you and likely to see a deterioration in your mental health.  Thus, I ought consider alternative punishment than gaol.

20Giving emphasis to rehabilitation in your case is not simply a hope that from now on, you will do something to overcome your problems.  You have done much already to date and that is to your credit.  You have got solid work and I have read the reference from your insightful employer.  You have enrolled and engaged in a men's behaviour program so as you can understand, gain insight and change your ways.

21You have continued intensive directed psychological counselling. 
You have expressed genuine remorse.  You pleaded guilty to these matters at the earliest opportunity.

22These matters open up consideration of a community corrections order. 
You were assessed as suitable for such an order.  The prosecution's position changed upon reading all the material to a position where a combined community corrections order and imprisonment is open.  Your counsel urged that a community corrections order alone be imposed.

23What needs to be understood is that the sentencing landscape has altered by reason of the community corrections regime that has been, in recent years, imposed.

24What the Court of Appeal said in Boulton is that there can be simultaneously punishment and rehabilitation achieved with a community corrections order.  This cannot be achieved by imprisonment.

25So though the prosecution argued for some imprisonment, in your case, for you as a 22 year old, this is in my view a time to seize the prospects of reclaiming you.  Gaol would not necessarily advance rehabilitation.  What I intend to do and by a bare margin, because I consider the sorts of violence that you inflicted to be very serious but by a bare margin established, I will asked you to undergo a community corrections order alone.  It will be onerous and so it should be.

26You are, as an aggregate term, placed on a community corrections order for three years.  You will have to undergo 300 hours of unpaid community work.  You are to undergo assessment and treatment for mental health problems. 
Any attendance at mental health programs and the like can be deducted from the unpaid community work.  To undergo treatment and rehabilitation programs to reduce your reoffending.  That too, what hours are spent there can be deducted from the 300 hours of unpaid community work.  You must be also under the supervision of the Office of Corrections for the full three years.

27Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a penalty of two years and six months with a minimum term of 18 months' imprisonment.

28Is there anything else required?

29MR BROWN:  No, Your Honour.  I think the forensic order was set out in the opening but that is no longer required.

30HIS HONOUR:  All right.  There will need to be a document produced. 
Just bear with me for a moment.

31Mr Moustique, the conditions of the community corrections order are important.  Many of them are just about cooperation.  So I am going to run through those before returning to a much more important one, perhaps.  So you must comply with any obligations and requirements under sentencing regulations.  You must report to and receive visits from the Office of Corrections.

32You must go down and report to the Community Corrections Centre within two clear working days.  If you go now, that would be good because I am not sure who is going to be open or the like.  You must let Community Corrections officers know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so.  You must obey all lawful directions.

33Most importantly, in respect of mandatory terms is this one.  You must not commit an offence for which you can be imprisoned during the time the order is in force.  Almost every offence you can think of is capable of being punished by imprisonment.  So do not commit any offence.  If you do within the three years, you will come back before me and I will have to resentence you for these things and you are not likely to get the same outcome, do you understand that?

34OFFENDER:  Yes, Your Honour.

35HIS HONOUR:  Thank you.

36The special conditions that apply to you is that you must do 300 hours of unpaid community work.  That is a lot but that is because you are on a fine line from being in gaol.

37OFFENDER:  I understand.

38HIS HONOUR:  You must do every single hour when required.  Do not consider it anything other than that.  Work it out with your boss.

39You must be under the supervision of the Community Corrections officer the whole time and you must undergo any mental health assessments and treatments.  That will dovetail in with your treating psychologist.  Get that sorted.  And you must participate in programs that address your offending.  That will be the men's program that is out there at Bethany, do you understand?

40OFFENDER:  Yes.

41HIS HONOUR:  Cooperate with all that.  If you do any of those things, then they can be taken into account and reduce the 300 hours or when you do those things.  If you sign that, it will bring the matter to an end as far as this court is concerned.  Miss Blair, can you just take that to him?

42Thank you.  I thank counsel for their considerable assistance.

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