Director of Public Prosecutions v Nash (a pseudonym)
[2023] VCC 1329
•27 July 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER NASH (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2023 | |
DATE OF SENTENCE: | 27 July 2023 | |
CASE MAY BE CITED AS: | DPP v Nash (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1329 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence upon plea of guilty.
Catchwords: Cause injury intentionally and recklessly - common law assault - rape
- sexual assault - make threat to kill - persistent contravention of family
violence notices and orders – domestic violence – drug and alcohol
abuse – prior criminal history - covid-19 delay – guarded prospects of
rehabilitation.
Legislation Cited: Sentencing Act 1991.
Cases Cited: Pasinis v The Queen [2014] VSCA 97; Brown v The Queen [2019] VSCA
286; DPP v Grabovac [1988] 1 VR 664; DPP v Granata [2016] VSCA 190;
Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102;
Bugmy v The Queen [2013] 249 CLR 571; McPherson v The Queen
[2021] VSCA 53; R vBrown [2018] VSC 742; Lugo v The Queen [2020]
VSCA 75.
Sentence: Total effective sentence of 14 years and 2 months imprisonment with a
non-parole period of 9 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Johnston | Mr A. Hodgeman |
| For the Accused | Ms T. Skvortsova | Ms S. Gaunt |
HIS HONOUR:
Peter Nash[1], you pleaded guilty to 16 charges. Some of these charges were rolled up counts, that is the charge alleges that you committed more than one offence at the same time of the same type between the specific dates. Two charges, 13 and 16 were not, although 16, because of its type alleged 10 instances of contraventions of family violence notices and orders.
[1] A pseudonym.
As I summarise these circumstances of the offending, I will enumerate the instances involved in the rolled-up charges and other instances in relation to Charge 16.
The background to this offending and the victims involved in your offending, may be outlined in this way. The primary victim is Alicia Sampson[2], who was 30 years of age at the time. Her mother Natalie Sampson[3] was 53 years of age, she is the second victim. The third is Sandy Sampson[4], now deceased. The grandmother of the first victim. The fourth victim is your daughter Victoria[5] together with Alicia Sampson, the first victim.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
These identities and those of those four victims will be protected by anonymisation when this sentence is published, to assist with the protection of their privacy and anonymity. A pseudonym will apply to you at the time of publication.
At the time of the offending you were 34 years of age, having been born in 1986. At the time of your arrest you were living with the first victim in Horsham. Before your relationship with Alicia Sampson, you had a relationship with Lilian Baldwin[6], and then with Irene Cooper[7], and had a child with Ms Cooper. Alicia Sampson had a child, Rose Ellison[8], when she was 16 years old. You met Alicia Sampson and both of you lived in Williamstown. In 2011 you started an intimate relationship with Alicia Sampson and she moved into your unit. Over the next seven years you had four children together, Victoria, who was the victim in Charge No.3 of reckless cause injury when aged five in 2017.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
In 2013, Joy[9] was born. Lauren[10] was born in 2017. And Nathan[11] was born in 2018. Both you and Alicia Sampson were regular uses of drugs such as cannabis, amphetamine, heroin and Suboxone. The relationship was tumultuous and there had been incidents of domestic violence including one which was reported to the police.
[9] A pseudonym.
[10]A pseudonym.
[11]A pseudonym.
The prosecution upon your plea, tendered a document as an opening statement of agreed facts. And from these I summarise the circumstances of your offending.
On 4 June 2020, police had cause to attend at your address in Horsham and observe that Alicia Sampson had injuries to her entire body. You, together with Alicia Sampson told police that the injuries had been sustained during a rape and assault that was committed by other parties on 30 May 2020. When Alicia Sampson was examined at the Wimmera Base Hospital, observations were made of broken ribs, a broken cheekbone, bruising and cuts to the majority of her body. The bruising was found to be consistent with having occurred over a period of time and were in various stages of healing.
The assessment of Alicia Sampson's broken ribs revealed that older fracture to a sixth rib which had calloused indicating the injury occurred prior to the reported incident on 30 May. As a result, police obtained and executed a complaint and warrant to remove you from the Horsham address in order to allow Alicia Sampson to speak with police about her injuries that occurred. She detailed family violence, assaults and threats during the relationship and acts of domestic violence towards her since the relationship commenced in Williamstown in 2012, some eight years before.
Multiple injuries were documented and examined by a forensic medical officer, revealing over a hundred injuries of varying ages, some months and years old, these are attributed to many of the incident's identified during the police investigation.
Uncharged acts of violence at Williamstown and elsewhere.
On an occasion between 1 December and 31 December 2012, Alicia Sampson was taking photographs of her six-month-old daughter Victoria on her mobile phone and a verbal argument with you ensued. You accused her of cheating on you, snatching the mobile phone and throwing it onto the concrete floor shattering it.
On 24 December 2012 at approximately 11.30, Alicia Sampson returned to the Williamstown address after babysitting and when she knocked on the front door she heard a loud noise and you would not open the door. When you finally let Alicia Sampson inside, she saw a butcher's knife stuck in the door next to the peephole. She pulled the knife out. You then asked her, 'What were you doing?' When Alicia Sampson told you that she had been where she had been you didn't believe her saying, 'I went upstairs, and I heard you moaning.' When Alicia Sampson pushed past you, you grabbed her by the neck with both of your hands, picked her up and threw her onto the floor in the hallway.
Then you ran at her punching her four or five times in the head and grabbed her by the ponytail telling her, 'I'm going to fucking bed, you have to sleep on the couch.' As a result of this incident, Alicia Sampson cut her ponytail off a short time after. Her tailbone was bruised from being thrown to the floor.
On a day during January or February 2013 at approximately 1 pm, Alicia Sampson was at the Williamstown unit sitting on the couch, with Victoria in her arms. Her other child playing the Xbox. The noise woke you up. You came out of the bedroom say, 'I'm trying to sleep.' You then grabbed Alicia Sampson by the throat with your right hand and put your other hand around her neck. However, she could breathe and there was no bruising on that occasion.
From 2013 to 2016, you and Alicia Sampson remained living in the unit in Williamstown with no further incidents of domestic violence between you.
During June 2016, you, Alicia Sampson and two of your children went to a camp for a short period of time in the backyard of Natalie Sampson's house. Natalie Sampson is Alicia's mother. You later decided you would stay in Girgarre, and you moved to a campsite in the Goulburn Valley National Park. Around this time you reverted to your use of illicit drugs, usually methylamphetamine.
On or about 1 August, Alicia Sampson was driving you, with your two children to Shepparton, when you started punching her arms, ribs and legs repeatedly accusing her of cheating on you. Alicia Sampson saw a McDonald's in Mooroopna and slowed the vehicle down so she could stop, as the children wanted to go to the toilet. When she did this, you told Alicia Sampson, 'If you stop I will kill you. I'll throw you in front of a truck.'
At the Goulburn National Park between 16 August and 25 December 2016, while at the new campsite, you again accused of her cheating on you and used your closed fists on both of your hands to punch Alicia Sampson causing bruises to her face and to her ribs, sternum and arms. These have been sighted in factual circumstances of Charge 1, intentionally cause injury.
On another occasion at the new campsite in the National Park, you came into the main section of the tent and kicked Alicia Sampson in the ribs, making her cry. You and Alicia Sampson moved back into Natalie Sampson's house at Girgarre with your children and took over the house for a period of approximately six months. The living arrangements were volatile and Natalie Sampson and Sandy Sampson, Alicia Sampson 's mother and grandmother felt confined to their rooms and/or were forced to leave the residence and live in a car, when you and Alicia Sampson were behaving aggressively.
You made threats to Natalie Sampson that you would kill her and Sandy Sampson, and bury them in the backyard, will hurt, will kill her cat or dog. You made threats to see that you would inflict serious injury to her by holding a knife to her throat while saying, 'I should cut your throat, you bitch.'
On 25 December 2016 at about 4.30 pm, while you and Alicia Sampson were living at Girgarre, Alicia Sampson was putting your children Victoria and Joy into the car when you punched the windscreen of the car twice, causing the glass to shatter. While you were in the car, you grabbed Joy from her car seat and dragged her into the passenger footwell, resulting in a large lump on the left side of her head, just above her ear. Alicia Sampson began to punch you to take your focus off Joy and onto herself. As a result, you then punched Alicia Sampson three or four times. You then pulled her hair almost slamming her head into the car's centre console. By this time, you were hitting Alicia Sampson almost daily. She was starting to fabricate reasons for her injuries, such as that she's been hit in the lip by a cricket ball. The reason of the attacks remained that she had cheated on you.
Between 1 September 2016 and 1 December 2017, you and Alicia Sampson were driving with two children Victoria and Joy to Kyabram. While you were all in the car near the Swan Hill area, you punched practically every part of Alicia Sampson 's body in the belief that she had arranged for DHS to attend and take urine tests from you for the purposes of taking the kids away and getting you out. There was no part of Alicia Sampson's body that was not bruised or sore. This is part of Charge 1, intentionally cause injury.
Between 1 February and 31 May 2017, you were driving Alicia Sampson and your two children from Girgarre to Melbourne. This journey was undertaken in an effort to curb your use of methylamphetamine by replacing it with heroin. As you drove, you berated Alicia Sampson about cheating on you and lying. As you approached Rochester you pulled the vehicle over and ordered Alicia Sampson to get out of the passenger seat of the car and into the driver's seat. When she did as she was told you got a dog's wooden break stick out of the car and hit her in the back of the head with it a number of times. As she drove Alicia Sampson's head bled heavily causing her to fear that she was going to fall asleep at the wheel. Every time her head dropped you hit her again with the stick. She had scars on her head from her blows.
During this assault you had a small kitchen knife in your hand, which you used to stab her leg. Occasionally, you missed her leg and stabbed the car seat or the centre console. She has two scars on her left knee as a result of this incident.
Alicia Sampson saw a truck stop and told you that she just needed to sleep. You responded, 'If you go to sleep now you will die, you've got a concussion and made her pull over and get into the passenger seat. But while she was in the passenger seat, you again used the break stick to hit her knees causing them to swell, making walking almost impossible. Charge 2, intentionally cause injury.
Between 1 February 2017 and 1 March 2017, you and Alicia Sampson were on your way to Werribee when you pulled into the Tarneit shopping centre. You were in the driver's seat of the vehicle and were again punching and accusing Alicia Sampson of cheating on you. Ultimately, Alicia Sampson lied that she had cheated on you, to stop you from hitting her. You punched her even harder. While you punched her she was curled up trying to protect herself while the two children were in the backseat of the vehicle. Alicia Sampson believes this is when one of her ribs were broken. Charge 2, intentionally cause injury.
On the following day between 1 February 2017 and 1 March 2017, you and Alicia Sampson were near the docks in Footscray, when you brought up Alicia Sampson's so-called admission the day before and punched her to the head. You repeatedly asked her about the admission pulling the car over, punching her to the head and face each time you did so. As this occurred, Alicia Sampson saw that what she believes was a four-wheel drive police car behind you and got out of the car and attempted to run. When she did this, you grabbed the back of her shirt ripping it, dragging her back to the car and throwing her in the back of the car and driving off. That is an uncharged act.
On a day between the 1st and 31 March 2017 at 4.04 am, you and Alicia Sampson were again driving through Tongala towards Bendigo. You began to accuse Alicia Sampson of cheating on you and told her to pull the car over. When she stopped the car you started punching her repeatedly to the face without both of your fists until her eyes closed over and she could not see out of them. You continued punching her until you passed out. Alicia Sampson could not get out of the car as you told her, 'If you move I'll kill you.' When you woke up you asked Alicia Sampson whether she could see? Part of Charge 2, intentionally cause injury.
The children Joy and Victoria were in the vehicle during the assault. On your return to Girgarre Alicia Sampson's mother, Natalie, looked at her daughter and noticed her injuries. Sandy Sampson also saw Alicia Sampson covered in bruises from head to toe and her clothing ripped. When she asked Alicia Sampson how she got them, she never said what happened. Sandy Sampson later wrote that Alicia Sampson was covered in bruises more often than not.
Between 1 February 2017 and 27 June 2017, you and Alicia Sampson were in Bulla. Alicia Sampson was about six months' pregnant with your third child. The dogs had defecated in the car and you forced the children Victoria and Joy to clean up the mess. You had Victoria by the arm and threw her in the back of the car. Victoria split her head open on the compound bow that was in the back of the car. Charge 3, reckless cause injury. You told Victoria to tell DHS that she had fallen off the playground if she was asked.
Between the 1st and 31 March 2017, you and Alicia Sampson were staying at Girgarre when you argued with her about whether she had cheated on you with Joseph[12]. You involved Natalie Sampson in the argument and became so enraged that you assaulted her. That is an uncharged act.
[12] A pseudonym.
You then grabbed Alicia Sampson 's neck and squeezed it until she could not breathe, telling Natalie Sampson that you would kill Alicia Sampson. That is also an uncharged act.
You punched Alicia Sampson a few times and went into the lounge room, barricading the entrance with a child's cot and a curtain as you believed Natalie Sampson was sneaking up on you at night.
On or about 1 March 2017, you called Natalie Sampson out of her bedroom and proceeded to hit her on both sides of her face with an open hand. That is assault, Charge 4. Between the 1st and 31 March 2017, Alicia Sampson was sitting on the floor in Girgarre watching the movie on a Samsung notebook when you decided that she was communicating with another male on the internet. You grabbed the laptop, snapped it in behalf backwards and stomped on the screen. That is also an uncharged act.
On 26 May 2017, you and Alicia Sampson 's third child Lauren was born at Girgarre. Alicia Sampson and the baby were admitted to the Shepparton Hospital shortly after the birth due to complications. Then between the 3rd and 4 June 2017, you and Alicia Sampson with your two-week-old baby Lauren were driving to Kyabram. As you drove you threatened to throw Lauren into a channel near Kyabram as you thought Lauren was not your child. You and Alicia Sampson pulled over at the channel in Kyabram. When you got out of the car, you held Lauren with one hand around her shoulders the other on her bottom. Alicia Sampson tried to take Lauren from you. You punched her mouth splitting her bottom lip. Charge 5, intentionally cause injury. The assault ended when you received a phone call.
Between 10 June and 11 June 2017, while you and Alicia Sampson were living at Girgarre, you told her, 'If you don't bash your Mum I'll kill the baby.' Charge 6, threat to kill.
Alicia Sampson believed that you would kill Lauren and she did what she was told, which resulted in being charged with assaulting her mother Natalie and a full intervention order being put in place.
On 13 June 2017 at approximately 11.30, you, Alicia Sampson and your three children left your ex-girlfriend's house Lilian Baldwin, in Traralgon. A short time later you pulled the vehicle over onto the side of the road and started repeatedly punching Alicia Sampson to her face and body. You then used the dog's break stick again to hit Alicia Sampson on the top of the head. Part of Charge 2, intentionally cause injury. You then, together with your three children spent that night sleeping in the car.
On 14 June, you and Alicia Sampson and your children returned to Lilian Baldwin's house. When you returned you told Lilian Baldwin not to look at Alicia Sampson as she was 'a bit busted up.' Lilian Baldwin did not think much of it at the time but when she saw that Alicia Sampson's eyes were so swollen that she could not see out of them, she was shocked and did not know what to think. The following day Lilian Baldwin told Alicia Sampson that she needed to leave you, if you had done that to her, but Alicia Sampson did not respond. While at Lilian Baldwin's house, Alicia Sampson was resting in the bedroom when you punched her. An uncharged act.
When Alicia Sampson asked you, 'What the fuck had you done that for?' you responded, 'You were fucking someone else'.
On or about 19 June 2017, you, Alicia Sampson and your three children left Lilian Baldwin's house and returned to Girgarre. Upon your return there, Alicia Sampson's grandmother Sandy, left for health reasons the address and only her mother Natalie Sampson remained living there with you.
Between 3 July and 4 July 2017, you told Alicia Sampson to go and belt up her mother or you would give it to her. Alicia Sampson punched her mother. You then yourself hit her mother Natalie onto the top of her head and side of her face causing her to fall over. This hurt Natalie Sampson's head, face and lower back. Charge 7, common law assault.
The following day the police were called by Natalie Sampson and DHSS took the children into foster care in Echuca. That night you and Alicia Sampson were made to move out of the Girgarre address and you drove to Bendigo. And as you drove you punched Alicia Sampson repeatedly on her left arm causing it to swell. You blamed her for the removal of the children from your care by DHHS. Uncharged acts.
In September 2017, the children were released into the care of your stepfather and his wife for a period of about 10 months. Arrangements were made between you and Alicia Sampson and DHHS for access visits to be two times a week for two hours. The arrangements for access visits broke down due to you and Alicia Sampson making various threats to your stepfather and his wife, when you were not allowed to do as you wished with the children.
During this period your sister Melanie Nash[13] contacted you and Alicia Sampson in an effort to assist you with accommodation and the return of your children.
[13] A pseudonym.
Between 9 July and 29 August, you and Alicia Sampson went to the cabin at the
Avondel Caravan Park. Whilst there you punched Alicia Sampson to the head and ribs as you believed that she had 'bent over in front of the park's owner'. Later that night you punched her again in the ribs, face and the back of the head as you believed that she was looking out a window at someone walking past saying, 'What are you looking at? Why did you look at the door? Are you waiting for someone?' You then punched her breasts. Uncharged acts.
On a day between 15 July 2017 and 15 August 2017 at approximately 2.30, you and Alicia Sampson left your brother's house in Whittington. As she drove you started punching Alicia Sampson in the face causing a black eye. Charge 2, intentionally cause injury.
The following day you told Alicia Sampson to tell DHHS workers at the child access that the bruise had been due to a 'fight' with one of your ex-girlfriends. During an access visit with the children at your stepfather's house in Grovedale, he observed that Alicia Sampson had a 'a lot of make up on' in an attempt to mask an obvious black eye. When he asked Alicia Sampson about the black eye, she told him that she'd had a fight with another girl, because she was 'flirting' with you.
On or about 29 September 2017 before 9 am, you and Alicia Sampson were again at your brother's house in Whittington for the Grand Final Parade. Alicia Sampson remained in the car while you went inside and started drinking. During the afternoon, while she was still in the car, you came and asked, 'Who were you smiling at?' to which she responded, 'No one'. You then told her, 'Let's fucking go.' And she drove and whilst she did so, you punched her legs, arms and the back of her head. You then knuckled her on her right leg saying, 'Yeah, you were, you were smiling at some cunt and I saw you.' Uncharged act.
Between 8 November and 14 December 2017, you and Alicia Sampson were living out of your car in a Salvation Army Church car park in Torquay. You again accused her of cheating on you whilst in Girgarre and punched her head, body and the back of her ribs. This assault winded Alicia Sampson and she said, 'Fuck you, get the kids back on your own, I'm out.' And she left the vehicle to go for a walk. But she returned and you punched her in the head and accused her of having sex with someone during her walk. Charge 8, common law assault.
While you were at the Salvation Army Church's car park, a man observed Alicia Sampson wearing baggy clothing, covering her arms and legs and that there were bruising to her lower arm, the left lower arm. You told the man that the bruises had been caused by your dogs and Alicia Sampson agreed that it was 'an accident', as she had got too close to the dog at the wrong time.
You were both thrown out of the Salvation Army Church car park and arrangements were made for your vehicle to be taken away and sold as scrap metal. The two of you then stayed briefly in a tent at Dodd Beach with three other people and moved to accommodation on a five-acre block that was run by a man called Andrew[14].
[14] A pseudonym.
On an occasion between the 25th December and 31 December 2017 at about
8 pm, you thought Alicia Sampson was sleeping with Andrew. You were standing behind Alicia Sampson and as she turned around you said, 'You're probably pregnant with his fucking kid', and punched her to her genitals. You then punched Alicia Sampson's vagina causing her to double over with pain and cry. You put a knife to her throat saying, 'If you ever touch another man, I'll kill you', and pushed the knife into her throat, so hard she could hardly breathe. Charge 9, threat to kill.
That night Alicia Sampson had made her first suicide attempt, taking approximately 50 Panamax tablets.
You and Alicia Sampson then returned to live in the tent at Dodd Beach. During this period the two of you visited your sister Melanie Nash, in Shepparton. While you were at her house, she noticed that Alicia Sampson had bruising to her neck. When Melanie asked Alicia about the bruising, she showed Melanie bruises to her chest. Melanie asked Alicia Sampson, 'Why you wore long pants and tops? and Alicia Sampson told her that she was cold.
On an occasion between 1 April and 30 April 2018, when Alicia Sampson was approximately 20 weeks pregnant with your fourth child, you went outside the tent at Dodd Beach to urinate, when you returned you kicked her in the left ribs.
While Alicia Sampson was still pregnant on 29 May, you and her moved to an address in Horsham. While there you resumed your use of methylamphetamine and the relationship between you became even more tense. Alicia Sampson set up a laptop with a camera in the lounge room of the home to record your constant accusations that she was cheating on you. She told you that she was recording every time you left the house, so that you could monitor her.
On 19 July 2019, your three children were returned to the care of Alicia Sampson and of you. Your sister Melanie drove the children to Horsham and started to make enquiries of Alicia Sampson as to whether you were still belting into her. Melanie often visited the house in Horsham with her partner and made observations of you, your drug use and your treatment of Alicia Sampson.
On an occasion between 1 July and 31 August 2019, you returned to the Horsham address after Alicia Sampson had a go at you over the telephone for not coming home. You picked her up by the throat accusing her of cheating on you and threw her on the floor. An uncharged act.
On another occasion between 1 July and 31 August 2018, you returned home and abused Alicia Sampson for not answering the phone. When she told you that, 'She didn't answer the call as she didn't know the number', you picked her up by the neck with two thumbs underneath her chin and your index finger around the base of her skull and threw her from the entrance down the hall in front of your bedroom. She got up off the floor, you grabbed her by the throat again with your hand and shoved her into the wall demanding, 'Why the fuck didn't you answer the phone, who were you fucking?' She told you, 'No cunt was here, watch the footage.' Uncharged acts.
On an occasion between 28 November and 5 December 2018, Alicia Sampson accused you of having sex with another woman. You grabbed Alicia Sampson's arms on the biceps and squeezed them stating, 'I haven't fucked her, I don't want to fuck her, she's an ugly slut anyway.' Charge 10, intentionally cause injury.
On 6 December 2018, Alicia Sampson went to the Horsham Hospital to give birth to Nathan your son. The hospital noted bruising on her and DHHS were contacted. A joint visit was conducted between police and the Department with Alicia Sampson, but she did not disclose any domestic violence to them, telling them instead that the child Joy had caused the bruising to her arms. She did not say anything because she thought the children would be taken from her, that she would be left alone with you, things would get worse.
The Department placed her and the children in emergency care over the weekend due to the bruising they observed on her arms and your continued drug use. You were removed from the family home and Alicia Sampson returned to live there with her now four children.
On an occasion between 1 March and 31 March, you and Alicia Sampson were at Horsham waiting for Victoria and Joy to come home from school. You came up behind Alicia Sampson asking who a male that was outside waiting at the bus stop was? Alicia Sampson told you that she did not know. You told Alicia Sampson to get into the bedroom where you have punched her in the rib on the left-hand side of her back, winding her. You then pushed her onto the bed and as she was lying face down on the bed you punched her back and kneed her buttock near the coccyx bone. An uncharged act.
Alicia Sampson then went and collected the children from the bus stop. On her return, you took her into the bedroom and punched around the head. You received a phone call about a Facebook account and asked Alicia Sampson for the password to that account. And despite she telling you that she did not have a Facebook account, you kept demanding the password while punching her in the arm. An uncharged act.
On 25 June 2019, you assaulted Alicia Sampson by grabbing her around the throat, lifting her off the ground, restraining her arms and you punched the family dog on that occasion. That is a related summary offence Charge 137. A Staffordshire cross. These assaults were captured on the victim's computer camera in the lounge room at Horsham. Charge 11, common assault.
On 8 July 2019, you assaulted Alicia Sampson by slapping her to the face with your left and right hand. This assault was captured by her on the computer in the lounge room whilst at Horsham. Charge 11, common assault.
On 27 July, you assaulted Alicia Sampson by grabbing her wrist and twisting her arm, then sharpening a knife, stabbing a TV unit and yelling, 'Dead, dead', while throwing the knife near her as she was sitting on a couch. The knife penetrated the couch near her head. This assault was captured on her computer camera in the lounge room at the Horsham address. Charge 11.
On an occasion between 15 September and 30 September 2019, you returned to the home at the Horsham address, and you accused Alicia Sampson of kissing someone while you were out and punched her mouth, causing her two front teeth to be pushed back into her mouth. She pulled her two front teeth out herself.
Your four children were in the lounge room at the time with the baby in Alicia Sampson's arms. You left the room returning with a large kitchen knife, lunged at Alicia Sampson telling her, 'I seen you fuckin' kissing another bloke'. She responded saying, 'Come on, do it, do it.' But you slammed the knife down and picked up a picture frame instead smashing the corner of it in the right side of Alicia Sampson's head, causing it to bleed.
She ran to the bathroom with the children and slammed the door shut, as you stabbed the large butcher's knife through the door. The blade went through the door and stuck out the other side of the bathroom door. Alicia Sampson was holding the door and comforted her three children as they were terrified. You took the knife out of the door and walked towards the children's bedroom and stabbed the wall in between rooms. You put the knife down on the kitchen bench and went into the lounge room saying, 'Get the fuck here'. You ordered her to go and get you some drugs. When Alicia Sampson returned to the house without the drugs you again punched her in the face about six or seven times with a closed fist. Charge 10, intentionally cause injury.
Alicia Sampson was again ordered to return to the drug dealer's place to get you some drugs and while she was there that man observed the bruising and swelling to her face, and Alicia Sampson told him that you had laid into her again. The dealer thought Alicia Sampson looked scared. You had gone to get the grocery, you went grocery shopping over the next few days and bought her a pair of sunglasses so that people would not see her injuries.
A few days later she returned to the dealer's house and told him that it was not you that had hit her but another female that she had got into a fight with, as you were cheating on her.
During November 2019, another witness picked Victoria and Joy, your children to drive them to school. She noticed Alicia Sampson's bruising on her face. When the witness asked Alicia Sampson what had happened, and whether she had fallen, Ms Sampson told her what she had.
Between 1st and 31 December 2019, you and Alicia Sampson had sexual intercourse. Afterwards you told her that she had nearly said the name Michael[15] during the intercourse. You then punched her to the left jaw. She then hit you back and you both kept hitting each other. You then left the room for 30 seconds and returned putting both of your hands around Alicia Sampson's neck until she could not breathe. She had a sore neck. And that is an uncharged act. Shortly after this, Alicia Sampson started consuming the drug crack with you.
[15] A pseudonym.
Between the 1st and 30 April 2020, you and Alicia Sampson spent two days doing drugs together. Alicia Sampson decided she did not want to keep taking crack as she was not getting enough sleep. Later that evening she was making dinner for the kids when you forcefully injected her with crack. You then kept her awake for four days injecting her with crack. Alicia Sampson thought that if she didn't take the crack you would punch her in the face. That is an uncharged act.
From early 2020, there were constant arguments between the two of you about your interactions and communications with another woman who lived nearby. Alicia Sampson suspected you of infidelity on your part.
On an occasion between the 1st and 30 April, you and the woman were at your address taking some drugs together. Alicia Sampson believed you were involved in a sexual relationship with the woman and confronted you about the relationship. She had a boxcutter and when you tried to take it from her she'd pushed that into your chest and cut you. Alicia Sampson then put the boxcutter up to the right side of her neck and cut herself from the back to the front of her neck. You took the boxcutter off her and put your hand on the cut, saying, 'You cut your jugular you stupid cunt'.
She was feeling unwell. As she was getting into bed she believed that there was someone hiding behind the blind and kicked at it. You were in the bedroom and grabbed Alicia Sampson by the neck and choked her while slamming her onto the bed. You then pushed your finger into the open wound on Ms Sampson' neck and then she passed out. Charge 11, assault.
When Alicia Sampson came to, she was feeling dizzy. You stopped assaulting Ms Sampson briefly, so that she could feed the children their dinner. When she had fed the children, you forced her back into the bedroom and asked her the same questions in relation to what had happened the previous night and hit her with full strength punches each time she answered. This continued until 10.30 pm, when she had to put the children to bed. Once they were in bed you again continued asking the same questions and punching her to the right side of her jaw, when she answered, so that she had to pretend to be knocked out to stop you. Uncharged acts.
On 29 May at about 8.30 am, she was shopping and attempted to call you. She could not get a hold of you and she suspected you were with the woman that she thought you were seeing. At approximately 10 am she returned home and saw you and the woman walking down the street towards your house and she started yelling.
On 30 May at about 5 am, you returned to the shared home with your cousin, after being out most of the night. At about 4 pm, with your cousin you met up with the woman with whom you were walking the day before. When you and your cousin returned to the house Alicia Sampson had the boxcutter she had previously used and was threatening to self-harm. You took the boxcutter from her. She then threatened to self-harm with various knives and you removed the knives from her. She left the address and went to the address of the woman in question and asked her about the suspected infidelity. After some time, she returned to her own place where you let her inside.
Once Alicia Sampson was inside the home you asked her what she had been doing and Alicia Sampson told you that she had been just walking. She went to attend to the baby in the lounge room, you went into the kitchen but returned. Alicia Sampson stood up and went into the bathroom where you told her to have a shower as you were 'Not sleeping next to a dirty slut.'
While she was undressing you saw discharge in her underwear and spread her labia majora and labia minora with your index finger and thumb. You then put your fingers inside her labia. Charge 12, rape.
You ripped her underpants off, and told her, 'Get the fuck in the shower' and left the bathroom returning with a bottle of domestic cleaner. You started squirting her vagina and face with domestic cleaner causing a burning sensation. Some of the contents squirted into her mouth. You grabbed her around her ankle, causing her to fall to the floor of the shower. While she was on the floor of the shower, you squirted the contents on and in her vagina telling her, 'I'm not sleeping next to a dirty slut'. Charge 13, assault.
Alicia Sampson felt a burning pain inside her and as she stood up she felt the fluid gush out of her vagina. She then attempted to wash the domestic cleaner out from inside her and off her body. You left the room for a short time returning with a towel, but you would not allow her to dress. She went into the bedroom. You told her to get on the bed. And when she sat on the pillows you pulled her legs up onto the bed. You then formed your hand into an arrow and shoved it to the base of your fingers into her vagina. Charge 12, rape.
She screamed in pain. You took your hand out and put your index finger into her vagina asking her why her vagina was so loose. Charge 12.
The prosecution opening at this point at paragraph 94 contains this statement.
'It is accepted by the parties that the offender held a genuine (albeit objectively unreasonable) belief in the complainant's consent to the proceeding digital penetrations.'
I will come back to this in a moment.
You returned to her and punched Alicia Sampson to the left side of her face until you fractured her cheekbone. Intentionally cause injury, Charge 10.
While questioning her about her alleged infidelity, you cut her on the right wrist just above the wrist bone, on her right hand just above her index finger, on her left arm and by stabbing her left leg. Charge 14, recklessly cause injury.
You then told her to get into bed and that if she fuckin' moved that you would kill her. Charge 9, threat to kill.
You then fell asleep, having been awake for four days by this time.
On 31 May 2020, when you woke up you asked Alicia Sampson to go next door at first where they did not have any drugs and then the woman's house to ask for some crack. Alicia Sampson walked to the woman's house and on arrival back you and the woman went into the bedroom and used drugs together. Before the woman left the house, she had a brief conversation with you about what had happened at her own house. After the woman left you pushed Alicia Sampson into your bedroom and started punching her really hard to the top and back of her head and later that evening you continued to question her about the previous night and punched her a number of times to the head. Intentionally cause injury, Charge 10.
On 1 June 2020, in the early hours of the morning, you got a chair leg from the lounge room and told Alicia Sampson to get into bed. You then hit her to the top of the left-hand side of her head, and her head started to bleed. Charge 10, intentionally cause injury.
You had a cigarette with her and then returned to questioning her. She told you that she had been raped by a man called Miles[16], while she had been at the woman's house the previous night and the woman had drugged her, held her down and been complicit in the rape. You told her, 'If I find out it's not true, I'll kill you'. Charge 9, threat to kill.
[16] A pseudonym.
At approximately 1 pm you started hitting Alicia Sampson in the right side of her face asking further questions as to what had happened with Miles on 30 May. That is an uncharged act.
You argued and you punched Alicia Sampson again to the head. Charge 10, intentionally cause injury.
On 2 June 2020 at approximate 2.30 am, you grabbed the baby Nathan, and put him in Alicia Sampson's arms. You grabbed the boxcutter and put it to the baby's throat saying, 'If you don't tell me the fuckin' truth I'm gonna kill him'. Charge 9, threat to kill.
On 3 June 2020, you and Alicia Sampson again argued about each other's infidelity. Alicia Sampson insisted that she had been raped by Miles and the woman.
The 4 June, you and Alicia Sampson had a drink together. The woman came over to your residence and Ms Sampson assaulted her by punching her, putting her head into the wall and stomping on her head. The woman escaped the house and contacted the Horsham police station and asked them to retrieve her belongings from your house.
That evening police attended at your house and spoke to Alicia Sampson and you. Ms Sampson told police she had been raped and assaulted by the woman and Miles. You then told Alicia Sampson to go and wipe the face mask off to show the police her injuries. When Alicia Sampson did this, police saw that her face was swollen and bruised. Ms Sampson then showed police bruising to her neck and arms, which she said were the result of the assault by Miles and the woman. You said, 'Now do you know what I'm so angry?'
Alicia Sampson was taken to hospital where her injuries were examined.
On 5 June 2020, Detective Bruce and Detective Box conducted a VARE in which she alleged that you had committed acts of violence towards her. She ultimately recanted the allegations against Miles and the woman on 16 June 2020. She provided a full statement to police detailing the allegations, the subjects of this matter in
July 2020.
On 5 June 2020, police arrived at your house where they arrested you and transported you to the Horsham police station. That evening a record of interview was conducted and during that record of interview you accepted that there had been drug use and some violence in the relationship. In relation to the week leading up to the interview you said that you and Alicia Sampson had been fighting, that you had hit her, that you slapped and punched her in the face. You said that you had been arguing the whole week and that Alicia Sampson had also been violent towards you.
You were then remanded in custody and a full family violence intervention order was put in place by the police.
On 23 June an evidence warrant was executed by the Major Crime Unit and other items seized. As well as seizing items, numerous blood swabs were taken at the premises and as part of those seizures the police located the laptop that the victim had set up to record you at Girgarre and a download of those recording revealed the incidents of domestic violence.
On 5th June 2020, a hospital registrar at the Wimmera Base Hospital examined Alicia Sampson and observed the following. Bruising to various parts of her body and face; an old left sixth rib fracture with callous; large greenish blue bruise to her left cheek down to under the mandible and neck posteriorly to the mastoid process, tender throughout, tender left infraorbital; CT brain and facial bones show a left zygomatic arch fracture with no acute intercranial pathology or injury.
The opening also contains photographs showing at p27, bruising and laceration to the dorsum right-hand metacarpal, referrable to Charge 14. A laceration on the right forearm referrable to Charge 14. Bruising to the left arm and a 4-centimetre laceration to the left deltoid, referrable to Charge 14. Bruising to the left leg and 1 centimetre laceration referrable to Charge 4.
On 5th July 2020, following a forensic examination of Alicia Sampson on 24 June, Dr Ping located and documented the following scarring on the left knee which is referrable to Charge 2. A cluster of scars ranging 3 millimetres to seven in diameter on the back of her head, referrable to Charge 2. Scarring of an area about 1 centimetre to the inner right lower lip, referrable to Charge 5. Missing middle upper teeth, no.11 and 21, referrable to Charge 10.
Some other scarring observed by Dr Ping is the result of self-harm.
On 23 July 2020, a search warrant was executed at the Metropolitan Remand Centre where phone calls from you and your sister Melanie Nash, identified persistent breaches of the current family violence intervention order.
On 20 June at 2.04 pm, you telephoned Melanie, your sister and asked her to contact Alicia Sampson, to tell her how much you love her and asking her to wait for you, in contravention of the intervention order.
During the call when Melanie asked you, 'What did you do to her?' you responded that you were scared of losing Alicia Sampson and scared that she was cheating on you. During your call you also make threats against the woman already mentioned in this summary. 'And I don't want the other cunt, you tell the other cunt I'll fuckin' kill her mate.' Melanie, 'You're telling me, I'm ready to fucking kill her too.' You, 'Yep, I'll fuckin' murder the cunt mate.' Charge 15, threat to kill.
On 21 June 2020, you telephoned your sister Melanie and told her to contact Alicia Sampson to give her a kiss and tell her that you loved her. When Melanie asks you if you love her so much why did you do that? You responded that you didn't know.
Excerpts from a transcript include you, 'I don't care I'll do 10 years to see her, you know.' Melanie, 'And why did you do that, what you did?' You, 'I don't know.' Melanie, 'I don't get it either, that's what frustrates me so much.' You, 'No, I did.' Melanie, 'If you love someone so much why did you do that?' You, 'I don't know. I don't know.' The offender was aware the call was being recorded. That is you.
On 3 June 2020, you again telephoned Melanie, your sister asking her to contact Alicia Sampson to pass on messages about your relationship, mainly to wait for you, or until you can, 'Fight for her' and 'To give you a chance'. You further asked Melanie to buy Alicia Sampson a big bunch of purple lilies.
On 25 June, you again phoned Melanie. During this call you told Melanie that you were going to 'Step up' and when they ask you ‘Did you do it’, you will tell them, 'Yeah’. And that you were ‘Not gonna fucking tell them you didn't do it, you know, when I did.' And that you have got to change and had her on your mind and what you did to her and that you had hit her.
Between 20th June and 25 June, you persistently breached the family violence intervention order by requesting your sister to contact Alicia Sampson on four occasions whilst in a 28-day period. Charge 16, persistent breach of intervention order.
A victim impact statement was tendered and read out by Alicia Sampson, it is a powerful and comprehensive account of the impact which your violence has had on her and her four children. In perceptive and inciteful language, she describes the state of each child in measured and realistic assessments. I will append the entire victim impact statements to my sentence.
A summary would not do justice to it. Alicia Sampson then also goes onto outlining the impact on herself. It was, a destructive experience which 'left her constantly in fear' and perennially bruised and battered and sore even while pregnant, beset by nightmares, anxiety and panic attacks. She has post-traumatic stress disorder, his hypervigilant of others. She has courageously taken up counselling, moved interstate, obtained work and is caring for her children and their schooling. Hers is essentially a story of survival and hope in the face of a relentless, brutal and cowardly barrage of violence.
She rightly describes you, not as a partner or father, but as an abuser. It is clear that the impact on Alicia Sampson and the children is profound and likely to be operative in their respective lives for a long time to come. And I take this powerful victim impact statement into account.
All the offences were committed by you in the context of serious violence inflicted on Alicia Sampson primarily and on occasions on others. They were accompanied by threats of death or serious violence. You created an environment of brutality over the period of years involving your partner, your young children, family members and even the dog did not escape your aggression and want of violence.
This course of conduct places in my view the overall offending in a most serious category of domestic violence and abuse. Luckily the court does not often encounter such determined mindless cowardly brutality with a few notable exceptions, see Pasinis v The Queen [2014] VSCA 97. And this conduct transgresses significantly the minimum standards of ordinary community behaviour. Alicia Sampson was in a situation of frequent fear of terror, often dealing with assaults whilst nursing injuries and ongoing pain from earlier assaults inflicted upon her by you. She was at times humiliated and degraded for no better reason than your insistent belief as to her infidelity. Offending which has had a profound and long-lasting impact.
The offences should in my view be regarded towards the higher end of the scale for each. The conduct often cruel and bordering on the inhumane, repulsive behaviour which reduced Alicia Sampson to effectively a punching bag for your anger and frustration. It is difficult to conceive how a man could be capable of such vile conduct towards a partner. Alicia Sampson became little more than an object upon which to vent your fury. A dehumanised object for subjugation and punishment. In complete disregard for her humanity, her rights, her physical integrity, you created a persistent environment of violent oppression whereby force or threat of force and intimidation, you hurt and injured her at your whim, causing her to even assault other persons, her mother no less at your command.
The court must denounce such want in criminality, in the strongest and clearest terms in ways which deter you specifically from such conduct, deter those like-minded who would offend this way, and to protect the community. The fact that such violence occurred in a domestic context is particularly important and should be reflected adequately in the court's approach.
The prevalent and abhorrent nature of domestic violence must not be tolerated. Violent rages for imagined or even real slights, or in response to conflict is utterly unacceptable. Your criminality carries high moral culpability. This does not only attach the offending against Alicia Sampson, but also that the offences committed involving your own children directly. Such offences, particularly Charges 3, 6 and 9 involving injury to your own daughter, and threats to kill in relation to other two of your own children, are reprehensible.
On a number of occasions your offending took place while driving, rendering the offending even more terrifying and dangerous. On many occasions both indoors and in the car, your children were present. This is repulsive, aggravated behaviour. The use of weapons or instruments to inflict injuries is another aggravating feature. The victims were all vulnerable except by very few occasions when there was some form of retaliation by Alicia Sampson, who was mostly alone and caring for the children.
Vicious assaults while Alicia Sampson was pregnant, including kicking her to the torso is another aggravated circumstance. Punching a woman's genitals, pushing fingers into a wound to inflict pain, squirting domestic cleaner into the mouth and vagina are all features which render this conduct even more objectively grave. The fact that the rape, a rolled-up charge and sexual assault, Charge 13, were perpetrated in the context of a relationship which on occasions may have involved consensual activity, does not derogate from their gravity, nor found an inference that the rapes were other than not consensual.
It was accepted by the prosecution, I have referred to the relevant paragraph in the opening, that you have held a genuine albeit objectively unreasonable belief as to the victim's consent for the digital penetration. I must accept this concession, even though I question its rationale. The general circumstances place these rapes and sexual assaults in a broader context of terror and the infliction of pain and hurt. It was sought to argue that this asserted and conceited genuine belief should reduce the objective seriousness of the rapes, rendering them less serious and a basis to depart from the applicable standard sentence. I do not accept this proposition.
The rapes were committed in a context of continued and persistent violence, which included at times, threats, the use of a weapon, violence accompanying the rapes themselves, the use of implements, the injured state of the victim, the humiliating and degrading details of the rape and sexual assault that you may have harboured, a totally unreasonable belief indeed delusional in my view, even if genuinely held, does not diminish the objective gravity of the offence or form a sufficient basis per se, to depart from the standard sentence applicable.
The physical assaults upon the victim form part of the context in which she was raped. The continuing domination, degradation and humiliation of the victim and the assaults were part of the context in which you forced her to comply with your sexual punishment. These circumstances are relevant not only to the assessment of the suffering you inflicted on her by the rapes themselves but are relevant to your culpability, in that they bear on the inference which might be drawn as to your state of mind at the time of the rape and relevant therefore to the overall assessment of the need for specific deterrence, general deterrence, judicial denunciation and protection of the community.
In this context, I should note that the circumstances of the offending included a significant number of admitted context events which were not the basis of discreet charges. They are referred to, as uncharged acts. These events as described are not charged and are included to provide a proper and full context. I am not sentencing you for those matters. They provide the full picture of the background against which the charged offences are to be dealt with.
The objective gravity of the total offending is also relevant to an assessment of the need for cumulation in respect of individual offences. Rape is a standard sentence offence, for which a standard sentence is 10 years' imprisonment, with the provision as to a non-parole period attaching to it. A standard sentence represents the sentence for an offence that considering only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness. On my view, this rolled up rape charge, Charge 12, falls well within the middle range of seriousness indeed at its upper end.
The standard sentence provisions however are only one factor relevant to the instinctive synthesis and will not be given undue weight. I will return to this matter later. See Brown v The Queen [2019] VSCA 286.
I am required by the application of the totality principle as I am sentencing for a number of offences, to ensure that the aggregation of sentences is appropriate for each offence in just and proportionate measure of the total criminality involved. However, and rendering this task more complex, are the relevant serious offender provisions which potentially affect the application of the totality principle. See
DPP v Grabovac and DPP v Granata. In relation to Charges 9 and 15, following a term of imprisonment imposed on Charge 6.Ultimately, the object of my sentencing is to impose individual sentences that accurately and as far as possible reflect the gravity of each offence. While rendering a total effective sentence which contemporaneously reflects the totality of the criminality involved in the totality of offences.
There are two aspects which the relevant sections of the Sentencing Act raise to the above counts which enliven to serious offender provisions, that is by way of section 6D and protection of the community, and by way of section 6E the need to moderate considerations of totality which might otherwise apply in order to give effect to the policy as to cumulation in respect of serious offenders.
I intend in my sentence to adequately reflect both of these purposes and the view that the presumption of cumulation is not displaced so that there will be a measure of cumulation in relation to the offences, which in their discreet nature irrespective of their reiteration would attract some cumulation in accordance with orthodox sentencing principles in any event.
The Crown did not seek the imposition of a disproportionate sentence in relation to the Charges 9 and 15, after a term of imprisonment of Charge 6 and I do not intend to so impose such a sentence.
When confronted with such persistent and serious offending, I am conscious that the court must put aside emotions which the behaviour might provoke, in order to balance mitigating factors as against the criminality in order to arrive at a proportionate and appropriate sentence.
I take your plea into account. This matter has had a lengthy history. You were arrested and remanded in custody of 5 June 2020. A first tranche of charges was processed relatively quickly with a committal taking place in December 2020, of which the complainant was cross-examined. A trial indictment and opening were prepared by May 2021. By November 2021 an agreement was reached and a plea listed for February 2022 on the non-sexual matters. You pleaded guilty upon arraignment and the plea was adjourned to March 2022 to follow a trial for the sexual offences.
Thereafter a number of delays occurred related to the unavailability of counsel, and court related difficulties related to the pandemic situation. There have continued to be delays this year, due to the issues with representations readiness, but the matter resolved in 2023, the day after the trial listing in January with the plea finally proceeding in June.
I accept that some of the delay was not caused by you and that two indictments which ultimately coalesce into this plea indictment, related in part to the way in which the complaints came to be made. The plea will reduce your sentence. It has utilitarian value of having avoided a criminal trial with its attended costs stressors and the need for the primary victim to again give evidence.
Pleas of guilty have also been made at a time in which the criminal justice system has been endeavouring to cope with the impact of the pandemic in terms of delays and the backlog accumulated to it. The utilitarian value is therefore enhanced.
Your remand has also been during pandemic conditions, that is a matter which I take into consideration. The pandemic, although abated is still ongoing and there are concerns especially in the closed prison environment. It has caused lockdowns, periods of isolation and quarantine, the curtailment of movement, work opportunities, the provision of programs, opportunity for visits and always in the shadow of the risk of contamination.
You reported experiencing some of these consequences to Ms Ferrari. Although gradually returning to normal operations the amelioration of sentence therefore must be palpable according to principles enunciated in Worboyes by the Court of Appeal. I will come to the issue of remorse and return to the issue of delay in a moment.
I take into account your background and personal circumstances.
You are 36 years of age, the only child born to your parents who separated when you were an infant. You had very little contact with your father and he died as suicide when you were aged 13. He abused alcohol and your mother had restricted your contact with him.
You have three maternal half siblings with whom you have no contact. You have contact with a paternal half-brother. Your mother re-partnered a number of times. Your first stepfather was a truck driver who used amphetamine and was aggressive to your mother and the children. You were frequently physically punched. Your mother also developed substance use issues during this period, which continued after her separation from him. She passed away some eight years ago, you had not had any contact with her for some two years before her death.
You began using methamphetamine after her death. When aged 21 your maternal grandfather with whom you had a close relationship died and this also had a great emotional impact on you. You began to use heroin to cope with emotions and problems. Your first stepfather's physical violence towards you coincided with the diagnosis of Attention Deficit Hyperactivity Disorder at age five. This condition exacerbated your learning difficulties and was compounded by frequent moves from one location to another.
You eventually attended Broadmeadows High School for Year 7, but in Year 9 you left school to pursue work. You had been prescribed Dexamphetamine, and this you used until age 16 when you stopped. Your own parents abuse of this drug and you had periods of non-compliance as related by you to Carla Ferrari, a
Forensic Psychologist who interviewed you in order to provide a report to the court. The first dated 23 May 2022.
You found work with a flour mill delivering flour and did so for two years. Early in that employment you injured your back but kept working. After leaving that employment you did some general labouring and forklift driving. Although you left home at 16, you would intermittently return home until your early 20s and you have been on Centrelink Newstart benefits since your last job some nine years ago.
After you left work to help look after the children, your substance use escalated. Your relationship deteriorated and you were effectively unable to provide for your family. You continued to experience symptoms of ADHD which have improved with atomoxetine administered in gaol since 2020.
You have in the past and during remand also been prescribed anti-depressants with positive effect, even though you described persistent trauma symptoms. In 2018, after your mother's death, you attempted to overdose on methamphetamine. At that time you had to reside with your mother-in-law. You denied any other attempts. You reported a family psychiatric history which Ms Ferrari described at paragraph 43 and following of her report. She outlined some head injuries. One where you were a child requiring stitches and the second in a motor vehicle accident 2007 when you blacked out.
Cannabis too played a central role with the cessation of dexamphetamine. Page 19, you went to Odyssey House for four days but this proved ineffective. While using heroin you also used Buprenorphine daily for eight years. Your daily intravenous use of methamphetamine increased when your children were removed. This drug you told Ms Ferrari, makes you aggressive, angry, paranoid, delusional, with auditory and visual hallucination.
Since leaving school you have also used alcohol up to three times per week.
You have a son now aged 16 from a relationship you had when aged
17-19 and you have not had any contact with him for about eight years. Your breaches of family violence, intervention orders and your prior history to which I will refer to in a moment, relate to this relationship.
When aged 24 you commenced an 11-year relationship with Alicia Sampson. When you spoke to Ms Ferrari you again asserted the difficulties in this relationship related to her infidelity. You had four children with her. In 2018 your children were removed and placed in foster care and you have had no contact since June 2020. You expressed regret for exposing them to violence and arguments, that your efforts of keeping the family unit together contributed to your decline in mental health, exacerbated by your drug use.
You are apparently in a relationship currently and told Ms Ferrari, you have disconnected from former piers and intends staying away from that group.
You have a prior criminal history going back to 2005. I write some of its details not because you are to be punished again for any of them, but because it is relevant to an assessment of your prospects of rehabilitation and the need for specific deterrence.
The first court appearance involved possession of a weapon, property damage and throwing a missile aged 19, without conviction. It was ordered that you continue to participate in a voluntary program run by youth support and advocacy services which included supported accommodation to facilitate drug withdrawal. The matter was adjourned for a year to enable you to attend, but in 2006 you were again before a court for property destruction.
That matter was also adjourned for a year for you to attend and complete a course in relation to anger management with counselling. There was then a break in time before returning before the Magistrates' Court in 2010, charged with two assault charges, criminal damage and theft of a car, bail offence and driving offences, reckless conduct endangering serious injury, for which you received a suspended sentence and a community-based order for 18 months, with a hundred and twenty-five hours of unpaid community work with conditions related to drug and alcohol use, mental health assessment and treatment. That was in November 2010.
In February 2011, you were again ordered to comply with the community-based order just mentioned on a charge of a contravention of a family violence intervention order. That community-based order however was breached. The order was cancelled in September 2011 and a further community-based order for two years was ordered, with an emphasis on anger management.
In 2013, that community-based order was also breached and you were fined a thousand dollars, the order cancelled.
In 2016, you were ordered to serve five days for the contravention of a final intervention order, and in 2017 you were again fined a thousand dollars for possession of methamphetamine, five charges of carrying a controlled weapon, possession of a dangerous article in public.
Finally in 2018, another conviction and fine for possession of a controlled weapon.
These priors do not contain serious or very serious criminal offending of the kind with which I am dealing. However, they indicate that certain themes recur in your background. Drug use, weapons, family violence concerns, dangerous and at times violent behaviour.
The court sought to give you opportunities for reform and rehabilitation which have not succeeded and which you have not taken up for that purpose. The escalation into the index offending of the severity and period of its occurrence indicate the need for specific deterrence and that your prospects should be approached cautiously.
You spoke of the circumstances of this offending to Ms Ferrari and linked what you considered to be deterioration of your mental state and the relationship to your substance use which had increased coupled with unemployment, boredom and interference from your mother-in-law. You acknowledge the negative impact that methamphetamine intravenous daily use which resulted in increased paranoia, anger, anxiety and depression compromising your decision making.
Your brother-in-law family business had employed you and you resigned.
You expressed remorse to Ms Ferrari for your behaviour. You accept the relationship with Alicia Sampson is at an end and wish to provide a secure environment in which to have contact and access to your children. In my view when one considers your prior history of substance use, your criminal history and the impact upon your ability to manage your aggression, anger and paranoia by that use, as an experienced drug user you must have been aware that in the frame of mind you were in during each of the incidents covered by the indictment, and in combination with substance use, you were likely to behave exactly in violent, aggressive and angry ways.
This was an ongoing reality sustained during many occasions during which you even sought out more drugs for you to consume. It was intentional and the effects upon you of the illicit drug use in these circumstances cannot reduce your moral culpability in the Verdins limb 1 sense.
Your drug use persisted in the face of the obvious negative impact on Alicia Sampson and your children and protracted offending in question. The drug use may explain to some extend your behaviour but it cannot be regarded as materially reducing your moral culpability. The role of drug use and the offending together with the risk of returning to drug use fortifies the weight to be accorded to specific deterrence and community protection.
Ms Ferrari conducted a mental state examination. She notes that you understood the connection between your deteriorated mental state, substance use and its contribution to your offending. She wrote, you appear motivated to address your unresolved issues and that medication has helped to improve your depression and anxiety symptoms.
When your background circumstances are taken into account, she agreed with them being suggestive of ADHD diagnosis. The DSM-5 checklist indicated clinically significant post-traumatic stress disorder symptoms, which developed as a result of your history of instability and adversity, paragraph 101 of the report, and leading to major depressive disorder, alcohol, cannabis and stimulant use disorders.
Behavioural outcomes would have been impacted by the ADHD and premature exit from school. When irritability and anger she opined are present during episodes of major depressive disorder, these symptoms appear to be clinical markers for more complex chronic and severe form of the disorder. These markers can lead to behavioural dyscontrol and violence and can exacerbate and alter behaviour and decision making responding to situations disproportionately and impulsively. Considerations such as these summarise that at paragraph 107, produce a higher risk of maladapted coping strategies.
A history of substance abuse has probably had a deleterious effect on the brain, resulting in impulsive repetitive unpredictable emotional high arousal states and behaviour with a reduced self-inhibition and cognitive behavioural self-control. This untreated state of mental functioning underlies Ms Ferrari, your past offending and perpetrated your substance use as a method of coping. She made a risk assessment of recidivism as moderate. The risk of self-mediation increases the risk of further offending behaviour, exhibiting poor problem solving, poor self-regulation, and in inherent avoidance of the need to address the underlying issues.
Ms Ferrari administered a spousal assault risk assessment. You exhibited risk factors summarised at paragraph 120, placing you in the moderate risk range, amenable to ideal treatment outlined at paragraph 125.
I note in this context that your relationship with Alicia Sampson is clearly at an end, with neither wishing to resume it, and there is a 10-year long intervention order preventing your contact with her, or any of your children.
Your insight and understanding of your mental health, however, is less developed than your insight into your substance use. Ms Ferrari writes, that there is potential for an exacerbation of your symptoms and risk of decompensation in the prison environment. In her opinion, your impairment in emotional regulation can cause undue distress and may place you at risk of further emotional deterioration subjecting you to a substantially greater burden than in ordinary circumstances.
Ms Ferrari then outlines her recommendations, paragraphs 131 and following of her report including admission to a residential rehab facility, recommencement of employment, psychological treatment, medication, psychometric review and transactional support post imprisonment.
She provided an updated report dated April 2023 and in that report she wrote that you informed her your mental state had significantly deteriorated as a result of the added offences. You have now had no contact with your children for some three years. You expressed wanting to be a role model for your children and have a different life.
You are taking ADHD medication which has been beneficial and are compliant with other psychotropic medication for depression and anxiety. You denied any problems with other inmates and staff and with your ongoing relationship with a partner. You reiterated the genesis and reasons for the offending at paragraphs 32 and following. You indicated your awareness of the influence of substances on your behaviour. You expressed remorse and shame. Your symptoms for the diagnosed disorders in the first report were confirmed by testing, remaining in the same severity range. She noted that the Millon Inventory which assesses for clinical syndromes had a questionable validity, indicating over reporting of symptoms. Overall, your profile suggested an over-inflated symptoms that have had a considerable impact on your functioning, affecting your perception of yourself and the world around you.
There was no evidence of an entrenched personality disorder. She highlighted worsening of symptoms of PTSD and ADHD with a high likelihood in her opinion that your condition would continue to worsen without urgent psychological treatment. You appear to not have developed an alternative coping mechanism, therefore you continue to display acute symptoms of depression, anxiety and trauma.
Ms Ferrari's opinion was that there was no causal relationship between your conditions and your offending. There is a connection between your poor mental health, your substance use and disuse worsening your symptoms, see paragraphs 87 and 88. This would have led through mechanisms of compromised judgement to an inability to self-regulate behaviour and thoughts, to inability to respond to proceed slights or provocation. Your risk of re-offending increased to a high risk without intervention. She wrote that increase in risk factors were not reflective of criminal belief system, rather its connection to substance use which enhances risk of maladaptive behaviour.
She confirmed your level of remorse and awareness of the impact on Alicia Sampson and your children. Based on these reports the defence submitted that limbs 1, 3, 4 and 5 of Verdins were enlivened. I have already dealt with limb 1. In my view your moral culpability is not reduced, nor can it be considered but it should lessen denunciation or affect what is considered to be just punishment. It cannot moderate general deterrence or specific to terms limbs 3 and 4 in my view. I accept that limbs 5 and 6 are enlivened as to the sentence weighing more heavily potentially on you than it would on a person in normal health and accept that there is a real risk that imprisonment will have a significant adverse impact on your mental health, in the context of a lengthy term of imprisonment, which is a mitigating factor. I will take into account these considerations.
Separate to this the defence submitted that the principles in Bugmy applied in respect to moral culpability. In that
'Your childhood abuse has affected your psychological functioning contributing to the development of your complex diagnoses.'
As this was expressed in written submission, it was not a precise elaboration of how Bugmy principles apply, but given that it was raised in the context of an assessment of moral culpability, I shall deal with that issue as to its application to this matter.
The High Court in Bugmy explained the two different ways in which childhood deprivation may potentially be relevant to this assessment. The first and more general ways of proposition that your moral culpability was less than the culpability of an offender whose formative years have not been marred by trauma and deprivation. In this general sense, I accept the application of a principle to reduce moderately your moral culpability.
The second way expressed by the court as an explanation for the offender's recourse to violence when frustrated, such that the offender's moral culpability may be substantially reduced by his own exposure to extreme violence and abuse. This in effect requires a causal link which might engage this second limb of Bugmy. In my view, such a link is not here established by the evidence. Your childhood deprivation in the argument as briefly put above, affected your psychological functioning, contributing to development of complex diagnosis.
Even if this was so, the level of childhood disadvantage here described does not provide an explanation to your present offending, so as to reduce your moral culpability. This is so because other primary factors have intervened and constitute a preponderance of causative factors such as your abuse of drugs and your inability to deal with conflictual perceptions in your relationships. I am not persuaded as to this more significant application and its consequent more significant ameliorating impact on the sentence.
The defence highlighted matters pertaining to your physical health relating to injuries in your past history. You have chronic back pain as a result of the abovementioned workplace injury aged 16, which caused some spinal degeneration which affects your range of movements. I have taken this into account, although you have used the report benefiting from the use of a gym while in custody.
I take into account your time on remand. I have mentioned the still prevailing conditions but in relation to your prospects of rehabilitation I note that you have obtained employment while in custody and after a short period at the MRC you were transferred to Karreenga until April 2021 where you maintained a job in a bakery there and then from then until April 2023 at Ravenhall where you did maintenance work and worked as a head billet. And at the MRC currently you secure a job, gardening. You have completed a number of courses despite the COVID related restrictions and intend to pursue engineering and welding certificates, having already obtained a Certificate III in Civil Construction before your remand.
It was conceded on your behalf that the offending warranted a lengthy term of imprisonment, and that your conduct was primarily
'A manifestation one treated drug addiction which developed as a result of misguided endeavour to treat underlying mental health issues.'
As indicated above I return briefly to the issue of delay.
Of itself this does not create a right to a sentence reduction. I have noted that some of the delay was related to your legal representation and then to pandemic conditions, as well as the differentiated nature of the charges and your different responses to them.
There are two limbs to delay as a mitigating factor. The first concerns fairness to the offender, in effect taking into proper account charges hanging over your head for a period of time. The second concerns whether during the period of delay, the offender has made a rehabilitative progress and if prospects of ongoing rehabilitations are good. As to both the matters I recited before as to the cause, length and consequences of the delay are relevant, I accept that as to both limbs some mitigating effects should be acknowledged. There is an aspect of the delay here which concerns a period after you indicated your willingness to plead guilty to some offences before further sexual offences were enlivened. I will take this into account.
The rehabilitation limb relies on aspects of reform and remorse to achieve its full weight. Your lengthy remand has provided some opportunities for abstinence. Your engagement whilst in reclusion indicates prospects for rehabilitation. You have expressed remorse and stated an intention to reform. Remorse is always difficult to assess. It is a sentiment which often develops overtime and although through reflection. I accept you have expressed remorse. Despite some progress your prospects of full rehabilitation remain guarded when your history and offending is taken into account. You may be able to be reclaimed to a productive law-abiding life. You have much important effort and commitment to be made.
The prosecution submitted that the context in which the offences took place, the duration spreading across almost four years with interspersed violence over nine years. The use of weapons, the injuries inflicted in the presence of children and offences against the children themselves, the nature of much of most serious offending places it above a normal middle range of seriousness with culpability of a high order requiring condign punishment.
The punishment referred to a few comparable cases and its uses in relation to current sentencing practices. As noted the circumstances in cases referred to and the specific matters pertaining to each case, make limited utility in comparisons. However, authorities can cast light on the application of principles.
The prosecution argued against Verdins and Bugmy submissions, but I have dealt with these, highlighting the risk of re-offending and recidivism in your case. I should note that some documents were tendered and were considered together with submissions. Medical records for 2014 were exhibited generally about your past injuries and their treatment. Two certificates were exhibited which related to adopting to prison environment and engaging in self-reflection for positive future direction.
Lastly, a reference was received from your half-brother, Jim Salter[17] who writes of your background, his contact with you and your plans for the future. He offers his support and help in finding work. I take this documentary evidence into account particularly Mr Salter's matter.
[17] A pseudonym
In relation to Charge 12, a rolled-up charge of rape as I have noted above, this charge is one which is included in the standard sentence scheme of the Sentencing Act under ss5A and B and categorised as a category 1 offence under s5(2G) and s5(2H) of that Act. This means that a certain period is specified as the standard sentence for an offence, but taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of the seriousness.
In my view, rape is one of these offences where the task of determining a rational mid-range is not an easy task. Because the offence can cover a wide range of circumstances for that misconduct. However, as I have stated I am of the view that this offending, being a rolled-up charge and encompassing a series of acts which were degrading and humiliating, apart from penetrative, is well within that range, in fact it is in its upper reaches. That is clear when one looks at the objective factors considered only the nature of the offend, and not the personal circumstances of the offender. See McPherson v The Queen [2021] VSCA 53. This gives the content to the hypothesising mid-range but does not constrain the way I assess the seriousness of the offence, which is to be done in the traditional way. See Brown [2018] VSC 742 and Lugo [2020] VSCA 75.
I take the standard sentence into account as a relevant sentencing factor when sentencing for the rape charge in effect, legislative guidepost which does not affect the instinctive synthesis required. Given that s5b(4) requires the court to give reasons for imposing a sentence shorter than under the Act's scheme and state how it relates to the standard sentence I will briefly identify the matters and circumstances bearing on that sentence.
The sentence on that charge will be lower than the 10 years' standard sentence. I consider it an offence of a serious nature which is nevertheless not of the highest order. It involved digital penetration inside the labia at first, then into the vagina, first by pointed hand, then by finger again. It was accompanied by pain. These were humiliating acts occurring with other circumstances which involved further degrading acts, the use of the contents of domestic cleaner in particular.
While it falls well within the middle range indeed in its upper reaches, it does not in my view require by way of proportionality the imposition of the full 10 years, but is moderated by your plea and state of remorse. I accept the non-parole period at a portion of the total effective sentence, in order to allow a reasonably long period of parole in order for you to access the rehabilitative efforts with may see you return to be a productive member of the community.
On Charge 1, of intentionally cause injury you are convicted and sentenced to five years' imprisonment.
On Charge 2, intentionally cause injury, you are also convicted and sentenced to five years' imprisonment.
On Charge 5, of intentionally cause injury, you are convicted and sentenced to three years' imprisonment.
And on Charge 10, of intentionally cause injury, you are convicted and sentenced to five years' imprisonment.
On Charge 3, of recklessly cause injury, you are convicted and sentenced to one year imprisonment.
On Charge 14, of recklessly cause injury, you are convicted and sentenced to one and a half years' imprisonment.
On Charge 4, of common assault, you are convicted and sentenced to six months' imprisonment.
On Charge 7, of common assault, you are convicted and sentenced to three months' imprisonment.
On Charge 8, it is also an assault charge, you are convicted and sentenced to one year imprisonment.
And on Charge 11, another assault charge, you are convicted and sentenced to one year imprisonment.
On Charge 6, making a threat to kill, you are convicted and sentenced to two years' imprisonment.
On Charge 9, of making a threat to kill, you are convicted and sentenced to two years' imprisonment.
On Charge 15, a charge of making a threat to kill, you are also convicted and sentenced to two years' imprisonment.
On Charge 12, of rape, you are convicted and sentenced to seven years' imprisonment, this will be the base sentence.
On Charge 13, the sexual assault, you are convicted and sentenced to two years' imprisonment.
On Charge 16, the persistent contravention of the family violence intervention order, you are convicted and sentenced to 10 months' imprisonment.
On the Summary Charge, Charge 137, you are convicted and sentenced to one month imprisonment.
I order that one year on Charge 1, one year on Charge 2, one year on Charge 10, six months on Charge 5, three months on Charge 3, four months on Charge 14, two months on Charge 4, three months on Charge 8, five months on Charge 11, six months on Charge 13, six months on Charge 6, six months on Charge 9, six months on Charge 15 and three months on Charge 16, be cumulative on Charge 12 and upon each other. The sentence on Charge 7 and on Charge 1 - on the summary offence will be concurrent with the other charges.
That makes a total effective sentence of 14 years and two months. I set a non-parole period of nine years. I note that in relation to Charge 9 and 15, I sentence you as a serious violent offender having imprisoned you for Charge 6.
But for your plea I would have sentenced you to 17 years with a non-parole period of 12 and a half years.
I declare that you served 1,147 days of pre-sentence detention excluding today.
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