Director of Public Prosecutions v Newbegin

[2021] VCC 858

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00330

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY NEWBEGIN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2021
CASE MAY BE CITED AS:	DPP v Newbegin
MEDIUM NEUTRAL CITATION:	[2021] VCC 858

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Victoria Legal Aid

HIS HONOUR:

1Timothy Newbegin, you have pleaded guilty to one charge of aggravated burglary, three charges of common assault, one charge of damaging property and one charge of false imprisonment.  Those crimes carry maximum penalties of 25 years, five years, 10 years and 15 years respectively.

2You are now 32 years of age.  You pleaded guilty to a settled indictment and must get the benefit of that.  You professed remorse in respect of your actions and, on the face of it at least, you would appear, to be gaining some insight into your contact.  You certainly get the utilitarian benefit of that plea of guilty particularly as it has recently been pointed out by the Court of Appeal in these times of pandemic.  You made admissions when speaking to the police and that again goes very much in your favour.

3You have two prior findings of guilt against you which would appear to be
anger-related but do not relate to assaults and accordingly you have a limited criminal history.

4Crown opening is an exhibit and will remain on the court file for those with a genuine interest.  The Crown opening outlines a significant part of the history of the relationship between you and your victim, Ms Andrews[1].  I make it clear from the outset of these sentencing remarks that I, as a judge, have to be careful to sentence you for the crimes to which you actually pleaded guilty, for not a relationship as such.

[1] A pseudonym

5What I am about to read does put the crimes that you committed into a context.  It can be safely said that what you did disgraceful as it was on this day is not in any way, shape or form out of the blue.  It is clearly part of a pattern but as I have already indicated, I have to be very careful to sentence you for the individual crimes, not a general set of circumstances.

6You and Ms Andrews had been in a relationship for about 10 years prior to the offending.  You lived at an address together in Kennington and Ms Andrews describes you as being very controlling over her and you would dominate her life, telling her who she could be friends with, was not allowed to spend time with other males and very much limited sort of contact she could have with her family including her mother and she could only contact via text message.  When you would leave for work, you would lock the flywire door and she was only able to leave the house with you, expect for attending appointments.  You would be critical towards her including her cooking, cleaning and the way in which she exercised and made negative comments about her.  It is also put, and I repeat what I have said before, that you also physically injured her in the past.

7Briefly, the case against you is that she tried to leave you and left her address with the assistance of a friend.  You then went to that friend's address and essentially, metaphorically at least, dragged her back into the house.

8In more detail, it was as follows.  On 25 October 2020, she was at home with you.  You had been in a bad mood and she did not know why.  At approximately 5 o'clock, you were in the kitchen and you were angry and you threw some peppermint tea onto the ground.  You went to have a bath whilst she cleaned up the mess.  You then had a verbal argument about the dog.

9At 7.26 pm, while you were in the bedroom, she sent a series of messages to her friend, Anna Barton[2], who is also a victim in this matter.  She told Ms Barton that she was afraid to leave, you have been physically abusive in the past and she persuaded her as I understand it, to pack her bags and she would collect her.  Accordingly, she packed a bag and using the subterfuge of taking the dog out into the back garden, jumped a fence into a neighbour's.  Ms Barton drove her and herself back to her house.  You went looking for them.  They went inside the house, locked all the doors, shut the blinds, turned off the lights apart from a small lamp.

[2] A pseudonym

10You started to call them on the telephone asking where Ms Andrews was.  She messaged back that she was safe but she was scared of you.  You responded, 'Get here now or I'm going to lose it'.  You called her 14 times in the next 30 minutes.  She texted you to stop calling her and that she was scared of you.  You demanded to know where she was.

11At approximately 8.40 pm, you arrived at Ms Barton's house.  You knocked on the door and tried to ring.  Again, there was no answer.  This time though in the lounge room clearly quite terrified.  You kicked in the front door of the house and they ran through into the kitchen.  You walked to the kitchen where they were and said, 'Get your shit and let's leave'.  Ms Andrews kept saying to you, 'Please don't hurt me, I don't want go back'.  You tried to grab her by the forearm and she kept pulling her arm away and fell to the floor.  That is Charge 2 of common assault.  Obviously the kicking the door and entering was Charge 1 of aggravated burglary.  Charge 2 includes a number of other matters where you had physical contact with her over the next hour or so.

12Ms Barton told you to stop and give Ms Andrews some space to calm down.  You told Ms Barton not to say anything or she would never have anything to do with Ms Andrews, if she did.  At that time, you had your face very close to Ms Barton's face and she felt like you were going to hit or push her; Charge 3 of common assault against Ms Barton.

13You again tried to grab Ms Andrews by the wrist while she was on the ground and pulled her towards the lounge room.  She pleaded with you saying she did not want to go.  There was a billiard table between the kitchen and loungeroom.  You picked up a billiard ball from that table, threw it towards the wall and caused damage to that wall; that is the damage to property.

14You picked Ms Andrews up by her underarms, pushed her into the loungeroom, again part of Charge 2.  She started walking towards the hallway.  She then left with you as she was scared as to what you might do to herself and Barton or whether you might damage more of Ms Barton's property if she did not go with you.  You both left the house and walked back to your house.  She walked behind you.

15When you went back into the house, you locked the front door; that is Charge 1 of false imprisonment.  You then told her to delete and block everyone on Facebook who knew Barton.  The two of you moved into the study.  Ms Andrews asked you why you would not let her leave.  You said that you were going to lose it and beat her.  You then threw an open beer can at her; again, part of Charge 2.

16You then moved into the lounge room, moved around the house but you came back into study.  She said that she was going to get a scalpel out of her safe as she wanted to end her life as she felt like she could not leave you.  As she was looking for a scalpel in the make-up box, you kicked the box.  She moved towards the wall and you went towards her and grabbed her by the hair and jumper and hit her to the head; again part of Charge 2.

17She was crawling on the ground and you sat and told her - and tried to take her mobile phone out of her hands.  She pleaded with you not to take the mobile as she needed it for a business.  You raised your fist in the air as if to punch her and she dropped it; again part of Charge 2.  You grabbed that phone and looked at it.  She then started to block people as you told her to do and what had occurred was that after you and Ms Andrews had left her house, Ms Barton had driven to your house and called Triple 0.

18At 9.13 pm, police arrived.  They spoke to Ms Barton and attended your address and essentially you were interviewed by the police afterwards and told essentially what happened with some obvious minimisation of what had occurred but essentially you made confessions for which you must at least get a benefit with respect to that plea of guilty.

19Ms Andrews has this morning very courageously read out her victim impact statement in court.  I again have to be careful as to how much I take into account.  It is clearly a heartrending document of an entire relationship of some decade where she has been subjected to fear.  I would say that the odds are very high that complex PTSD is in fact the diagnosis.  She suffers panic attacks, all sorts of things trigger, saying your name, hearing your name, torment and various physical symptoms have also appeared from all this.

20Whilst I take everything in that victim impact statement into account, it is clear just isolating this particular incident, it must have been absolutely terrifying for her as well as humiliating and in these circumstances you also introduced Ms Barton to something that she was simply trying to save Ms Andrews from.

21The conduct, as I said, is disgraceful.  Whether you do understand the seriousness of what you do or not, I am not altogether sure certainly you have endeavoured to make efforts to do that.  As I say, it is in my view serious offending.  Of course the application of general and specific deterrence. It calls for denunciation and calls for an appropriate punishment.  It occurred in the circumstances of domestic violence which was quite terrifying to two essentially defenceless women.

22On the other hand, it is a situation where the intention to assault involved in the aggravated burglary was an intention to intimidate with that does reduce in my view the moral culpability of an aggravated burglary.  There was no injury actually inflicted to Ms Barton but you did make physical contact on a number of occasions with Ms Andrews and whilst I am aware that common law assault carries a maximum penalty of five years, it is a significant example of it.

23I do not think there is anything else I really need to say about the circumstances of it.  Gaol is inevitable in a situation such as this.  Your counsel put on your behalf that, what is known as a combination, that is a gaol sentence to be followed by a community corrections order with a significant period of time with conditions attached to it, it would be the appropriate disposition.

24I had you assessed for a community corrections order and ultimately my view is that that submission is correct.  In saying that, and I am not start quoting, clearly referring to decisions such as Bradshaw and Boulton which point out that these types of combination sentences so a significant element of punishment and I have got no doubt that for you the time that you spent in gaol and the time that you will continue to spend in gaol has been very difficult for you.

25You have spent it in protection, you have spent it in circumstances where the COVID restrictions have been in place.  That is virtually eliminated over an extended period of time, visits and the like and they are matters that all contribute.

26I then look to matters personal to you in endeavouring to work out what an appropriate gaol sentence is prior to the CCO commencing.  Your counsel provided very helpful submissions as well as a report from a Ms Borg and I note that Ms Borg's report has been tendered and I have clearly read it on a couple of occasions.

27I think I can do this in fairly short compasses.  You are 32.  It is time essentially to wake up to yourself in terms of this sort of conduct.  You will be on a community corrections order for three years after this gaol sentence expires.  I make it very clear to you that should you breach that community corrections order by any form of domestic violence or anything to the sort, you will be brought back before me, assuming you agree to that order, you will be brought back before me and a very different outcome may well occur.

28Your counsel in his submissions very sensibly agreed that the offending was serious.  He submitted it was out of character but I do not know that that is the case bearing in mind what is in the Crown opening and bearing in mind what is in Ms Andrews' victim impact statement.

29You unfortunately went through a history of domestic violence as a child.  It was perpetrated by your father.  From the age 14, you would begin to intervene and trying to protect your mother.

30You still have a good relationship with your mother and I am informed and accept that upon your ultimate release, she should be able to work with Corrections and organise a number of situations in which you can get proper treatment.  She can provide, as I understand it, secure accommodation.  She can get you appointments with a family GP and a counsellor at a wellness and consulting operation in Echuca.  She can get you work; you can work on her property in the meantime and she will endeavour to get you to join a gym and make sure that there is no alcohol in the house.  I do not regard this offending has been alcohol-fuelled.  There may have been some involved.  I think this would have occurred alcohol or not.

31Ms Borg says that you do show insight, shame and remorse in respect of the offending and I accept that on face value.  I accept also the matters put by your counsel about your family violence perpetrated by your father and to a limited extend the principles of Bugmy would apply.  You do have a stable accommodation I have referred to.  You do have the support of your mother and you do appear to have the support of family in the general area.

32I have already mentioned Bradshaw and Boulton and the simple situation with the report of Dr Borg is a number of factors which clearly relate to all of this.  One thing that is always a matter of real concern is that you went to about six or seven different schools when you were younger and that you were acting out almost certain I would have thought because of your father's conduct and you then had difficulty at school.

33You seem to be somewhat of a not particularly good historian.  Your mother became your integration aid at school.  After you left school, you commenced a boiler making welding apprenticeship.  You then worked as a second-class welder for various employers for a period of years.  You worked in stone masoning, cleaning, personal training, labouring and truck jockeying.  Your last work was on a casual basis just prior to your arrest for these matters.

34I think putting it bluntly they are the factors that do operate in your favour in terms of the sentences to be imposed.  As I indicated to your counsel, it seems to me that it falls well within, in my view, the range available for a CCO.  That CCO, if you agree, will have a number of conditions attached to it.

35It will be with conviction.  It will be for three years.  You will have treatment and rehabilitation for mental health.  Treatment and rehabilitation to reduce reoffending and supervision.  Because of the gaol sentence, there will be work hours.

36One of the aspects of - that falls to the court that does cause me concern is as you indicated at various periods of time during the interview with you, there were subtle undertones of a tendency to seek an external locus of blame.  You endeavoured to try to say that it took a lot to set you off.  You said that your reaction on that day was specific and unique and I think that they're matters that probably untrue.  However, I do accept what she says that you are starting to show insight into it.  You want to participate in a mens behaviour change program, not just to ameliorate this sentence but also to change who you are and how you behave.

37This is the first time that you have been in prison and I accept that it would have had a very salutary effect upon you.

38The prospects of your rehabilitation; well, you have very few prior convictions.  It should be good.  I think in so far as the community is concerned, this will not be a community protection.  It is going to be an intimate partner protection and you are just going to have to understand that, whilst it seems to take place all over the place, if it becomes public knowledge and comes before the court, the courts do not treat it very kindly at all.  The risk of you reoffending in a general sense is hard to say and in a public sense and we've indicated that.

39Taking all those matters into account and doing the best I can in a situation which can be quite emotive when one reads it, the emotions brought about by your treatment of her, can lead to anger but I am not allowed to sentence in that mood.

40Accordingly on those charges, I sentence you to an aggregate period of 12 months' imprisonment.

41There is the CCO if you agree as I have said.  Do you agree to that community corrections order?

42ASSOCIATE:  He cannot hear you, Your Honour.

43HIS HONOUR:  Sorry?

44ASSOCIATE:  He nodded, Your Honour.

45HIS HONOUR:  He nodded.  All right.  So he has agreed to it orally which we are able to do with the provisions.

46Gentlemen, what is the PSD now?  It is 243, is it not?

47MR MALIK:  Yes, Your Honour.

48MR LOWY:  I have 244.

49HIS HONOUR:  Yes, I have got you.  Yes.  Yes.  Yes.  PSD is 243 days to be reckoned as having been served under this sentence.  That the CCO is to commence upon release.  That there will be Corrections in Echuca.  Yes.  Corrections in Echuca and he has agreed to it so we will go from there.

50I have already indicated to you, Mr Newbegin, what will happen if you breach that CCO.  Obviously, counsel at that stage will put forward submissions on your behalf but you will be in a lot of trouble.

51Pursuant to s6AAA of the Sentencing Act, I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of three years with a minimum term of imprisonment of two years.

52Any other orders I need to make, gentlemen?

53MR LOWY:  No, Your Honour.

54MR MALIK:  No, Your Honour.  Just perhaps one brief matter.  At the beginning of Your Honour's reasons for sentence, I think Your Honour had it there were three charges of common assault.  Of course as Your Honour indicated in your fuller reasons is the two charges.

55HIS HONOUR:  Yes.  No, thank you for that.  No, I meant two.  Yes, what I was trying to express was that there are a number of incidents involved in the assault.

56MR MALIK:  Yes.

57HIS HONOUR:  That is my mistake.  I apologise for that.

58MR MALIK:  Thank you, Your Honour.

59HIS HONOUR:  All right.  All right?  Do you need to talk to your client, Mr Lowy?

60MR LOWY:  Just for a moment, Your Honour.

61HIS HONOUR:  Yes.  All right.  Yes.  Thank you for that, Ms Andrews.

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