Director of Public Prosecutions v Newmann
[2018] VCC 86
•29 January 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-01867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM NEWMANN |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 & 24 November and 20 December 2017 |
| DATE OF SENTENCE: | 29 January 2018 |
| CASE MAY BE CITED AS: | DPP v Newmann |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 86 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Persistent contravention of family violence intervention order - common assault – theft - entering a private place without authority or lawful excuse
Legislation Cited: Sentencing Act 1991
Cases Cited:Boulton & Ors v The Queen [2014] VSCA 342
Sentence:10 months’ imprisonment and 3-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Emma Turnbull Lawyers |
Pages 1 - 14
1HIS HONOUR: Adam Scott Newmann, you have pleaded guilty to one charge of persistent contravention of a family violence intervention order, one charge of common assault and one charge of theft.
2You have also pleaded guilty to one transferred summary charge of entering a private place, namely the affected family member's address, without express or implied authority from the owner, or lawful excuse, which is, in effect, trespass.
3Persistent contravention of a family violence intervention order carries a maximum penalty of 5 years' imprisonment or 600 penalty units or both. Assault carries a maximum penalty of 5 years' imprisonment. Theft carries a maximum penalty of 10 years' imprisonment, and the trespass offence carries a maximum penalty of 6 months' imprisonment or 25 penalty units.
4You were born on 10 November 1980 and you are now 37 years old. At the time of the offending some nine months ago you were 36 years of age.
5You have a history of previous convictions for similar and other offending, to which I will refer in more detail later.
6You and the victim in this matter were previously in a de facto relationship for approximately three and a half years and you have two children together.
7The victim lives in, and is the lease holder of, a property. While you have previously lived at the address with the victim, you were never given a key to the property.
8The victim obtained a family violence intervention order against you in October 2016. The final order was varied on 11 January 2017. The victim and her two children were the protected persons under the order. A copy of the order was served on you on 12 January 2017.
9At the time of the offending, the family violence intervention order was current and ordered that you must not:
· Commit family violence against the protected person(s);
· Intentionally damage any property of the protected person(s) or threaten to do so;
· Follow the protected person(s) or keep them under surveillance;
· Go to or remain within 100m of where the protected person(s) works or where the children attend school or childcare;
· Get another person to do anything that you as the respondent must not do under this order;
· Go to or remain at [the premises] if you have consumed any alcohol or used illicit drugs in the 12-hour period prior to attending the home and you are not to consume any alcohol or use any illicit drugs at the home.
10The circumstances of your offending are set out in detail in the prosecution summary which is exhibited on your plea. I incorporate those facts into these sentencing remarks.
11In essence, the conduct represented by the charges is, firstly, as to the persistent contravention of a family violence intervention order, with reference to particulars (a) to (e) on the indictment:
(a)Attending the protected person's house in a drug-affected state on 29 April 2017;
(b)The next day, 30 April, at 2.30 am, whilst drug-affected and convulsing, banging on the protected person's door and demanding to be let in, later that morning contacting the protected person on Facebook demanding food and blankets, returning at midday and leaving when police were called, later again returning to the house and attempting to break in, walking away after police were again called, then later contacting the protected person by Facebook demanding money in a threatening tone;
(c)The following day, 1 May, again attending the protected person's home and demanding to be let into the house. Police were again contacted and spoke to you, and you agreed to leave the home. Later, you phoned the protected person and abused her. You again returned to the house and went inside when the protected person was absent. When she returned, you walked outside and spoke to her when she was in her car. The police were called and you left the home. A neighbour heard you yelling and looking agitated. You later phoned the protected person, demanding she leave the home and buy you cigarettes. She refused and you later sent abusive voice messages to her. The protected person formed the view that you were drug-affected.
(d)The following morning, 2 May, you again attended the protected person's home, banging on her bedroom window at 4.30 am, demanding to be let in. Police were called, but you had left before they arrived. At 6.30 am the protected person sent you a message stating that she was going to call the police every time you came to the house, and stated that you were not to be at the house or contact her. Not long after sending that message, the protected person heard a noise in the back room. She approached the kitchen and you came into the room. This act is represented by the trespass charge. The children were on the floor. The protected person screamed. You grabbed her around the neck and held her tight. She struggled to breathe, and could not fight you off. This conduct is represented by Charge 2, common assault. You took her phone and threw the protected person against the sink. She gathered the children and ran from the home. As she was running away, she heard you trying to get out of the front door. The protected person ran to a neighbour's house and police were called. When you left, you took the protected person's phone. This conduct is represented by Charge 3, theft.
(e)Later that morning, 2 May, the protected person took her children to their day care centre. You were observed parked within 100 metres of the centre.
12You have a recent history of repeated offending of the same or similar character:
- in 2012 you served 101 days in custody in respect of a conviction for contravening a family violence order and recklessly causing injury;
- in 2014 you were convicted of assault and fined $1,000;
- in 2014 you were also convicted of contravening a family violence intervention order, and sentenced to a nine-month community correction order with 75 hours of unpaid community work.
- in 2015 you breached the 2014 assault sentence and were again sentenced to a community correction order, this time with 37 hours of unpaid community work;
- in October 2015 you were convicted of unlawful assault (this time the victim was the same as in this current matter) and you were sentenced to another community correction order, this time for six months with 80 hours of unpaid community work;
- in January 2016 you were convicted of criminal damage and contravening a family violence safety notice and sentenced to pay $2,000 to the Lasallian Foundation and to continue counselling with Beleura Hospital for your alcohol addiction;
- in December 2016 you were convicted of persistent contravention of a family violence order and other offences, including theft and assault, and sentenced to three months' imprisonment;
- furthermore, although not a previous conviction for current sentencing matters, your further history shows that on 23 October 2017 you were again convicted for contravention of a family violence order (involving the current victim) and sentenced by me, on appeal, to two months' imprisonment.
13Overall, you have committed breaches of family violence contravention orders or notices on four previous occasions, including one previous offence of persistent contravention of a family violence order. You have three prior convictions for assault since 2014.
14Furthermore, your offending has embraced two different domestic partners, and you have received three separate community correction orders, as well as gaol terms and significant monetary penalties. It has not deterred you from further offending.
15Before your spate of family violence offending from 2012, there was a period of eight years when you were not offending. Prior to that, you offended almost every year from age 15 to 24 for various offences including theft, burglary, other dishonesty offences and driving charges.
16I turn now to your personal circumstances.
17Your early life was difficult. Your mother left the family home when you were only a few months old, and your father was a functioning alcoholic whom you have described as having a “great firm hand” and who would often beat you.
18You left home at age 14, essentially to be away from your father. At that stage you were balancing trying to find work, affording your accommodation and attending school. You were missing classes and were eventually expelled.
19You have worked in a variety of jobs, including panel beating, nursery work, service stations and furniture manufacturing, eventually finding more stable employment at the abattoirs, in roadwork, and your own business re-stumping houses. For a period you also studied horticulture. You have a capacity to apply yourself to gainful work.
20You commenced using cannabis at the age of 11, and in a very short time your use escalated to LSD, mushrooms, Ecstasy, and heroin. You continued using until you were 17, when you decided to cease drug use and began regular binge consumption of alcohol. You engaged in an inpatient withdrawal program at Beleura Clinic for a month in 2015.
21You have had four principal partners and have six children overall by three of them. You frankly admit to the breakdown of each of your relationships through you being inattentive to those relationships through either work, alcohol or drug use.
22You commenced your relationship with the current victim in this case approximately three years ago. Together you have two children who are still infants. You have stated that the relationship was going well until your drug use led to the relationship breaking down.
23You were admitted into the psychiatric unit at Ballarat Hospital in October 2016, and discharged the next day. The diagnosis was one of adjustment disorder with amphetamine use disorder. There was a past history of anxiety and depressive disorder. You are currently prescribed Prisquil following a diagnosis of depression some years ago.
24The psychological report from Mr Warren Simmons was tendered on your plea. In Mr Simmons' opinion you meet the DSM5 criteria for substance use disorder, relevantly alcohol as well as drugs. A previous diagnosis of depression is being managed therapeutically by medication.
25Mr Simmons also postulates that your childhood meant that you had no opportunity to observe either marital or other relationships as you were growing up, and therefore you have no idea how to form strong bonds. The lack of a significant mother figure meant that you have not really learnt how to relate to women in a constructive manner either.
26Consequently, treatment concentrating on drug and alcohol programs and relationship counselling will be beneficial.
27You were also recently referred to Mr Matthew Staios for neuropsychological assessment as a result of an observation that in 2016 a brain scan suggested small left frontal lobe injury. It was anticipated that a further scan be obtained for detailed assessment. The scan was not available to Mr Staios; however he has provided a report nonetheless.
28In Mr Staios' opinion, you fall into the Low Average to Average range of general intellectual functioning, with deficits in speed of information processing and new learning memory. Verbal memory was characterised as unreliable and inefficient. Historical factors in your personal history, together with the influence of alcohol, heightened emotional states and inconsistent use of anti-depressant medication, decrease your ability to control your impulses, resulting in a lack of consequential thinking, problem-solving, exercising appropriate judgment and alternative thinking.
29Mr Staios was not able to provide a conclusive opinion regarding the enduring nature of your cognitive state in the context of traumatic brain injury in the absence of the availability of a further brain scan; however he was of the opinion that your longstanding substance use has impacted on your verbal memory skills, and your depression and anxiety may have impacted on your ability to learn and commit new verbal information to memory.
30In mitigation, I take into account the submissions made by your counsel, including:
· your pleas of guilty and the time at which they were made, both for the utilitarian value and as an expression of remorse;
· your good history of employment and capacity to work hard;
· the efforts made by you whilst in custody to assist your rehabilitation, including a negative urine sample for a drug and the fact that the efforts you have made have been consistent and sustained throughout many moves whilst in custody;
· your difficult personal history and underlying conditions of long term substance disorder, anxiety, depression and cognitive reduction as assessed by the psychological and neuropsychological reports which have been tendered;
· your capacity, if committed, to successfully complete mandated conditions with appropriate levels of support; and
· your letter of apology, again for the remorse it expresses.
31Your counsel has submitted that in all the circumstances the purpose or purposes for which a sentence is imposed can be achieved by a suitably directed community correction order, in light of the time that you have already served in remand custody.
32The prosecution concedes that a further term of imprisonment beyond that which you have already served whilst in remand together with a conditioned community correction order is not outside appropriate sentencing discretion. You have been assessed as suitable for such an order.
33Notwithstanding the mitigating circumstances, your offending constitutes serious repeated criminal behaviour in the context of domestic violence and an assault committed in front of your two young children. You created a very frightening and traumatic incident which can have longlasting psychological effects on the victims. The victim impact statement of your former partner gives eloquent testimony to the nature of such emotional injury. Furthermore, you offended whilst being subject to a family violence intervention order. The offending was further aggravated by theft of the victim's phone.
34The prevalence of this type of terrorising behaviour by a disaffected former partner is well recognised in the community, and you would have been well aware of its significance. A great deal of public and private funding has been allocated to publicise the fact that neither the community nor the courts - representing the community - will tolerate the continuance of the levels of domestic violence hitherto experienced. Being alcohol or drug-affected at the time of the commission of an offence is not a mitigating factor. The fact that you had consumed either alcohol or drugs is no excuse for the conduct that brings you before the court today.
35However, as I have just expressed, I do accept that some measure of mitigation can be given to the fact that you have had a difficult early life, a longstanding alcohol and drug problem, and that prior to these incidents, you had voluntarily engaged at one stage in a rehabilitation program. This matter can also be taken into account as to your prospects of rehabilitation.
36Overall, whilst I accept that, with support, you are capable of managing your risk factors, I am guarded about your prospects of rehabilitation because they will ultimately be very subject to your capacity to maintain a conscientious observance of what is necessary to achieve that rehabilitation.
37The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
38I have given close consideration to the principle expressed in the Court of Appeal authority of Boulton[1] and the further expressions of those principles in subsequent decisions of that court. I have also carefully considered the provisions of the Sentencing Act 1991 and in particular s.5.
[1] Boulton & Ors v The Queen [2014] VSCA 342
39On balance, in the particular circumstance of this case, I am not persuaded that the purpose or purposes for which a sentence is imposed can be achieved by a sentence that does not involve your confinement in prison for some further period. In my view the objective gravity of your offending is too high, despite the mitigating circumstances, to justify that option. In my view, the gravity of the offending requires that the retributive and deterrent purposes of punishment in custody must take precedence.
40I do consider, however, that the actual time spent in confinement can be appropriately reduced with the benefit of combination with a community correction order upon your release, given that the community correction order can be imposed for a period of years with conditions attached which are both punitive and rehabilitative, which will militate against the disadvantages of, in your case, further imprisonment and give you the opportunity to address the issues in your life that may have contributed to your offending, both to your advantage and to the advantage of the community. It will give you the opportunity to continue the reformative processes to which you have applied yourself whilst in prison for the period that you will continue to be in prison.
41I accept that you have insight into your issues, and with appropriate application on your part together with professional assistance over a relatively extended period, there are some prospects for your rehabilitation.
42Mr Newmann, could you please now stand.
43On Charge 1 of persistent contravention of a family violence intervention order, you are convicted and sentenced to 4 months' imprisonment.
44On Charge 2 of assault, you are convicted and sentenced to 9 months' imprisonment.
45On Charge 3 of theft, you are convicted and sentenced to 1 month's imprisonment.
46On the transferred summary charge of entering a private place of an affected family member without authority, you are convicted and sentenced to 1 month's imprisonment.
47Charge 2 is the base sentence.
48I direct that one month of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2. The sentences are otherwise concurrent.
49The total effective sentence is 10 months' imprisonment.
50The sentence starts today.
51Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 258 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
52On Charges 1, 2 and 3 and the summary charge, you are also ordered to serve a community correction order for a period of three years.
53The order commences immediately upon your release from prison and ends three years from that date.
54The corrections centre you will attend is the Morwell Community Corrections Service at 25 Ann Street, Morwell, and you must attend there within two clear working days after the completion of your imprisonment term.
55All the mandatory terms of a community correction order apply, and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you undergo assessment and treatment, including testing for drug and alcohol abuse or dependence, as directed by the regional manager;
· you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager, and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.
56You will note that I have not ordered that you perform any unpaid community service condition, and that is because I accept that the period of the sentence that you will serve in prison is sufficient deterrent/punishment for that purpose and I do not want you to be restricted in the employment opportunities you might otherwise have. I want to enable you to concentrate on the rehabilitative courses without being overwhelmed in that capacity. Do you understand that?
57OFFENDER: Yes, I do, Your Honour.
58HIS HONOUR: I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you, however it is appropriate that I briefly summarise them here so that you are very clear about them.
59The mandatory terms are that;
· you must not commit another offence for which you could be imprisoned during the time that that order is in force, and that is for a period of three years;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2012, which essentially sets outs your obligations as to your attendance at the community corrections centre - such things as not attending drug or alcohol-affected is what those regulations are about;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Morwell centre, within two clear working days of the order starting, and as I have already indicated, that order commences immediately upon your release from prison;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
60Do you understand and agree to those conditions, Mr Newmann?
61OFFENDER: Yes, sir, I do.
62HIS HONOUR: If you become sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Morwell Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.
63However I must warn you, and you would be very much aware of this, that if you breach any condition of this order you will be brought back before court and that will be before me. One of the options open for me is to cancel the community correction order and resentence you on the original charges, and I may also deal with you for any breach - which is a separate offence itself - by sending you to prison for up to three months for that offence.
64Do you understand the consequences of breaching your community correction order?
65OFFENDER: Yeah, it's not good.
66HIS HONOUR: I'm sorry? Do you understand the consequences of breaching your order, and I want you to answer loud and clear, so it's quite clear that you do understand.
67OFFENDER: Yes, Your Honour, I understand.
68HIS HONOUR: Thank you. I will ask you to sign the community correction order shortly.
69At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample. I have made that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order, the order is by consent and the granting of the order is in the public interest.
70I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that procedure to be undertaken. Do you understand that, Mr Newmann?
71OFFENDER: Yes, Your Honour.
72HIS HONOUR: Thank you. There is just one further matter.
73Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed is two and a half years' imprisonment with a minimum period of 18 months to be served before eligibility for parole.
74At this stage, the correction order can be provided to Mr Newmann's legal representative, Mr Kozlowski, who can pass it to him and if he agrees, ask him to sign it, please.
75MR KOZLOWSKI: Yes, Your Honour.
76(Community correction order signed and acknowledged.)
77HIS HONOUR: I have now countersigned that order. Is there anything else from either counsel?
78MR KOZLOWSKI: No, Your Honour.
79HIS HONOUR: Mr O'Doherty?
80MR O'DOHERTY: No, Your Honour.
81HIS HONOUR: Thank you.
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