Director of Public Prosecutions v Njovu
[2024] VCC 1574
•8 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00915
CR-23-01358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARVIN NJOVU |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2024 |
DATE OF SENTENCE: | 8 October 2024 |
CASE MAY BE CITED AS: | DPP v Njovu |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1574 |
REASONS FOR SENTENCE
---
Subject:Plea - sentencing
Catchwords: Criminal damage - intentionally cause injury - attempt to pervert the course of justice - persistent contravention of family violence notice - unlawful assault
Legislation Cited:
Cases Cited:
Sentence:33 months' imprisonment, non-parole period 22 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Weinman | Office of Public Prosecution |
For the Offender | Mr E. Daniel | Daniel Legal Group |
HIS HONOUR:
1Marvin Njovu, you have pleaded guilty to four charges on an indictment. The first charge is criminal damage, for which the maximum penalty is imprisonment for 10 years. The second charge is intentionally causing injury, for which the maximum penalty is imprisonment for 10 years. The third charge is attempting to pervert the course of justice, for which the maximum penalty is imprisonment for 25 years. The fourth charge is persistent contravention of family violence safety notice, for which the maximum penalty is imprisonment for five years.
2You have also pleaded guilty to a related summary offence of unlawful assault for which the maximum penalty is imprisonment for three months, and you have asked me to take that offence into account in imposing sentence upon you.
3You have no prior convictions alleged against you.
4The prosecution tendered a summary of prosecution opening dated 25 June 2024, which was Exhibit A at the plea hearing.
5The facts of the offending can be summarised as follows:
6At the time of the offending you were 40 years of age and resided at an address in Queens Road, Melbourne. The victim in this matter was then 37 years of age.
7You and your victim commenced an intimate relationship in about March of 2021. In April 2021 she moved into your Queens Road apartment.
8On 7 May 2021, after returning from a friend's home, you and your victim were seated in her car which was parked outside the Queens Road address. You became angry and punched the windscreen of the vehicle three times, causing the windscreen to shatter. That is the subject of Charge 1 on the indictment.
9The second incident, which involves the related summary offence of unlawful assault, occurred on 16 May 2021 when, during the course of the evening, you and your victim were at the Queens Road apartment after having drinks at a friend's house. You argued, and the next thing that your victim was aware of was waking up in a pool of blood with two gashes to the upper and lower left side of her lips. She recalled being in a lot of pain and asking you what had happened. You told her that you had punched her in the face. She attended the Alfred Hospital the following day and received stitches in the wounds that I have described.
10The offence the subject of Charge 2 on the indictment of intentionally causing injury occurred on 22 August 2021 when you and your victim were at the Queens Road address drinking and listening to music at about 10.00 pm. Your victim made a comment about your mutual sexual relationship which apparently made you angry. While she was standing in the kitchen you approached her, grabbed her by the throat with two hands and threw her onto the floor where she hit her head. You then got on top of her, wrapped both of your hands around her throat and began strangling her so hard that she could not breathe. That lasted an estimated seven seconds. Your victim described feeling scared for her life.
11After you finished choking her, you got off her. She was still lying on the kitchen floor. She attempted to calm you down. You then grabbed a hammer and told her that you would 'smash' her 'face in' if she 'didn't shut up.' You then told her to take off her clothes so you could send a photo to her friends to show 'what a whore' she was. She was terrified and complied with your demand. As a result of that incident your victim sustained redness and bruising around her neck and the underside of her chin, photographs of which were provided to me at the plea hearing.
12On 24 August 2021 your victim attended the Prahran police station and spoke to police about the incidents that I have described. She also provided photographs of the result of your assault upon her on 16 March 2021 and of the injuries sustained during the incident on 22 August 2021.
13On that day you were arrested and cautioned at your home. You were taken to Prahran police station, where you were interviewed. You made some admissions, including to the breaking of the car windscreen and assault upon her on 16 May 2021 where you described having gone to restrain her, indicating that you were not sure how she fell and cut her mouth.
14In relation to the assault on 22 August 2021 you said that she threw a plate at you and you grabbed her to control her, you fell to the ground, you grabbed her upper arms to stop her throwing things, you tussled and fell to the floor. You thought she had hit her head. When asked how your victim had sustained the injury marks around her neck you stated: 'We had sex that night and she likes rough sex.'
15You were then bailed in relation to those incidents, and on 25 August 2021 you were served with a family violence safety notice which contained conditions prohibiting you from (a) committing family violence against your victim; (b) approaching, telephoning or otherwise contacting your victim unless in the company of a police officer; (c) being anywhere within five metres of her; (d) being at or within 200 metres of any place where she lived; and (e) causing another person to engage in the conduct that was prohibited by the notice.
16On 3 November 2021 your victim attended the Prahran police station and made a statement of no complaint, which was put in writing and signed. In that statement she effectively withdrew all complaints against you.
17She says in the third and last paragraph of the statement:
'I have since given this matter consideration and decided that I wish to withdraw the statement I made on 24 August 2021 because I wasn't in the right mental state when I made the statement and I was affected by alcohol.'
18It is plain from a series of screenshots from your phone obtained by police that prior to, and it seems likely during, September of 2021 you and your victim resumed an intimate relationship. By 5 October 2021 you were seeking to persuade her to withdraw her complaints against you.
19Indeed, on 5 October 2021, which was the commencement date for the third charge on the indictment of attempting to pervert the course of justice, you sent your victim a text message which was in effect a draft of a statement that you wanted her to make to the police. Your draft reads as follows:
'To whom it may concern. I would like to withdraw the statement I made on 24 August. The main reason for this is that the information I provided is not accurate and should not be used as evidence and/or anything regarding any related charges towards Marvin Njovu. My mental state, alcoholism and the fact that I was not taking my medication during the period leading up to the statement made, including an inaccurate statement, brought me to do the right thing and withdraw it. I want all the multiple charges towards Marvin Njovu dropped as they also are not accurate or relevant.
The purpose and outcome of what I wanted has spiralled out of control and has impacted me more than I can take. Marvin and I are in a relationship and he has been the person supporting, helping and giving me strength each day. The statement was made during a moment of weakness, please withdraw my statement and drop all charges against my partner Marvin Njovu. Thank you.'
20As the indictment alleges, you had by then engaged, and continued to engage, in a series of acts which had the tendency to pervert the course of justice and which were designed to persuade your victim to make a statement of no complaint. You persisted in that course of conduct through to 14 November 2021.
21As the prosecution summary of opening points out, a later statement made by your victim indicated that she had been pressured into making that statement of no complaint and that she had text messages to prove it. Indeed, a number of text messages and screenshots were relied upon by the prosecution to support the contention that you had pressured her into writing a letter, through the text message that I have indicated, and to writing a letter to your lawyer stating that she wished to withdraw the charges. She indicated then that she was no longer in a relationship with you, and that since she made the statement of no complaint she realised that she was being coerced by you into making the statement for your own benefit.
22On 27 December 2021 your victim attended the Knox police station and signed a further statement indicating that she was not persisting with the statement of no complaint. She indicated in that statement that there was an incident in November 2021 when you would not let her leave the flat. She indicated in the statement at paragraph 5: 'I now wish to withdraw my statement of no complaint because I realised Marvin was not being genuine.' She indicated that you had pressured her to do a statement of no complaint because 'it would help him.'
23You were arrested on 11 January 2022, cautioned, taken to Prahran police station and interviewed. You were asked about the text messages sent to your victim from your phone and you responded in terms that your victim had been arrested by police for breaking into your home and stealing your phone and that she was the last person that had had your phone before it started having problems with hacking. You claimed that you told your victim that she needed to tell the truth so that people would understand what was going on about her mental health, alcoholism and lies.
24You admitted you had seen a draft email on her phone about withdrawing charges and that you had told her to 'make sure that she was telling the truth.' You claimed that you had no reason to manipulate or change her mind. You agreed that you had sent her messages regarding information about the legal process.
25Based on an analysis of messages you had sent to your victim between 5 October 2021 and 14 November 2021, there were seven separate text messages and two emails.
26You have pleaded guilty to the charge of persistent breach of the family violence intervention notice the subject of Charge 4 on the indictment.
27Your victim has provided a victim impact statement which speaks of the effects of your conduct upon her, both the physical wounds which she indicates would heal, but that the emotional scars remain. She finishes with the sentence: 'This crime has changed the way I live my life. I hope that in considering the sentence the court will recognise the lasting impact it has had on me.'
28I am bound to take into account the victim impact statement and the effects that your conduct has had upon your victim.
29Turning to matters personal to you.
30Your counsel provided me with an outline of plea submissions dated 20 August 2024 and supplemented those with oral submissions. He accepted that the offences, particularly the offence of attempt to pervert the course of justice, are inherently serious, and it was accepted on your behalf that they are grave examples of domestic violence offences.
31It was submitted that you had entered a plea to the charges at the earliest opportunity. Discussion this morning has shown that there was cross-examination of your victim in December 2023, two years after the offending conduct. That that seemed to be designed to challenge a number of the factual statements she made which support the charges to which you have pleaded guilty. Ultimately, the plea agreement that was reached between yourself and the prosecution did not alter the principal charges of attempting to pervert the course of justice, unlawful assault, intentionally causing injury and persistent contravention of family violence safety notice.
32Your plea of guilty is undoubtedly a valuable plea and it has saved your victim from further cross-examination and the stress of a trial. It is also consistent with remorse. Other than that, I have not seen much evidence of remorse, but in any event the plea has significant utilitarian value and is to be given significant weight in determining an appropriate sentence.
33It was submitted that your prospects of rehabilitation are good. I accept that you clearly are an intelligent and business-orientated person with work experience suggesting that you have every prospect of resuming a successful business career. I am not sure the evidence of your most recent business activity suggests that that was, by the time you went into custody at any rate, particularly well-developed or successful, but nevertheless it is submitted on your behalf that it was a business that was aimed at helping people, and that, at least as an expression of your sentiment, would suggest that that is a creditable activity.
34I should not impose any sentence upon you that is more severe than is necessary to achieve all of the sentencing purposes. Your counsel’s submission is that taking all these things into account, a sentence involving a term of imprisonment equivalent to time already served with a community correction order would suffice.
35I was informed that you were born in May 1981. Your mother was a registered neo-natal intensive nurse and midwife, your father a medically trained doctor. You have a sister two years younger than you.
36When you finished secondary school you wanted to start your own business and you started selling mobile phones from home as an agent for major telecommunications companies. You taught yourself to become a business entrepreneur.
37You were later employed by various businesses, which included Hill McGlynn and Think and Grow, as a business consultant. You later became a business development manager for Bend, a business consultant for Trade Track, a senior advertising sales manager for MondoConneX and managing director for a business called Proceido.
38You have been married. You and your ex-wife formed a company called MNC Group, which was an employment and recruitment company. You have a son by your previous marriage and your counsel indicated that he turns nine in November of this year. You see your son on a regular basis and you have had an amicable separation from your ex-wife. It was submitted that for that and other reasons, your son continues to have a positive experience with both his parents.
39It was pointed out that it was a condition of your bail that you attend a 20-week men's behaviour program which commenced on 13 November 2023 and concluded on 21 February 2024. It is clear that you only completed three-quarters of that program and that you failed to complete the other five sessions of the program.
40It is agreed that the time that you have spent in custody now and which would amount to pre-sentence detention is 154 days.
41The prosecution have provided me with a list of comparable cases with a view to identifying current sentencing practice. It is clear from the maximum penalty, and generally, that the most serious of these offences is the offence of attempting to pervert the course of justice. Ordinarily such charges give rise to quite substantial terms of imprisonment. One of the aggravating features of this charge is that it is linked to a course of conduct involving domestic violence and seeking to escape the consequences of a course of violence and intimidation aimed at your victim.
42The courts have made it very plain that general deterrence is a very significant sentencing consideration in relation to domestic violence offences. This offence of attempting to pervert the course of justice was aimed at shutting down the prosecution of you for the offences that gave rise to the charges of criminal damage and intentionally causing injury, and the related summary offence of unlawful assault.
43I am required to impose a just punishment upon you, to denounce your conduct and to give proper weight to the principle of general deterrence in particular. Individual deterrence is still relevant given that you had plenty of time to consider, re-consider, and re-consider again your course of conduct towards your victim and you persisted with lies to the police which were designed to cover your offending.
44However, you have pleaded guilty. That operates as a significant factor in reducing the sentence that you might otherwise have been required to serve.
45I was not persuaded by your counsel's argument that a community correction order with time served would be sufficient to meet the sentencing considerations. Accepting, as I do, that you have good prospects of rehabilitation, despite the qualifications that I have just indicated, I take the importance of rehabilitation very much into account in determining the appropriate sentence, whilst endeavouring to give proper effect to the other sentencing considerations.
46I now proceed to impose sentence.
47On Charge 1 of criminal damage, you are convicted and sentenced to imprisonment for two months.
48On Charge 2 of intentionally causing injury, you are convicted and sentenced to imprisonment for 15 months.
49On Charge 3 of attempting to pervert the course of justice, you are convicted and sentenced to imprisonment for 24 months.
50On Charge 4 of persistent contravention of family violence safety notice, you are convicted and sentenced to imprisonment for a period of 14 months.
51The sentence of 24 months’ imprisonment on Charge 3 is the base sentence.
52I order that five months of the sentence on Charge 2 and four months of the sentence on Charge 4 be served cumulatively upon one another and upon the sentence of 24 months' imprisonment on Charge 3.
53That makes a total effective sentence of two years and nine months.
54For the related summary offence of unlawful assault on 16 May 2021, I convict you and sentence you to imprisonment for one month. That will run concurrently with the sentences on the other matters.
55The total effective sentence is imprisonment for two years and nine months.
56I fix a non-parole period of one year and 10 months.
57I declare pre-sentence detention of 154 days as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from the sentence you will actually have to serve.
58But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years and 10 months with a non-parole period of two years and seven months.
59Are there any other matters, counsel.
60MR WEINMAN: Your Honour, just in relation to Charge 1 being the criminal damage, was that to be served concurrently.
61HIS HONOUR: Yes.
62MR WEINMAN: Thank you, Your Honour.
63HIS HONOUR: Thank you both for your help.
‑ ‑ ‑
0
0
0