Director of Public Prosecutions v Otten
[2024] VCC 1573
•9 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-00605
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM OTTEN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2024 |
DATE OF SENTENCE: | 9 October 2024 |
CASE MAY BE CITED AS: | DPP v Otten |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1573 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Contravention of family violence intervention notice - false imprisonment - cause injury recklessly - make threat to kill - unlawful assault – possess controlled weapon without lawful excuse
Legislation Cited:
Cases Cited:Guden v The Queen [2010] 28 VR 288, The Director of Public Prosecutions v Gregory Reynolds(a pseudonym) [2022] VSCA 263
Sentence:26 months' imprisonment, non-parole period 17 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole with | Office of Public Prosecutions |
For the Offender | Ms K. Phair | Victoria Legal Aid |
HIS HONOUR:
1William Otten, on Charge 1 you have pleaded guilty to contravention of a family violence intervention notice, for which the maximum penalty is imprisonment for five years. On Charge 2 you have pleaded guilty to false imprisonment, for which the maximum penalty is imprisonment for 10 years. Charges 3 and 4 are also offences of false imprisonment carrying the same maximum penalty, and you have pleaded guilty to both of those. On Charge 5 you have pleaded guilty to causing injury recklessly, for which the maximum penalty is imprisonment for five years. On Charge 6 you have pleaded guilty to making a threat to kill, for which the maximum penalty is imprisonment for 10 years.
2You have also admitted and asked me to take into account two related summary offences, namely, an offence of unlawful assault and an offence of possessing a controlled weapon without lawful excuse. The maximum penalty for the unlawful assault is imprisonment for three months, and for possessing a controlled weapon imprisonment for one year.
3You have also admitted a prior criminal record which contains offences of recklessly causing serious injury in 2008 and reckless conduct endangering serious injury, criminal damage and intentionally or recklessly causing injury in 1994.
4The prosecution tendered and relied upon an amended summary of prosecution opening dated 8 August 2024 which sets out the facts in some detail, and I will summarise them briefly as follows:
5Your victims in this matter are Jill Long,[1] Chantel Long,[2] and Lindsay Brewer.[3] Jill is your wife, or was at the time of the offending, and Chantel is your daughter. Both of them lived in Melton South. Lindsay Brewer is the mother of Chantel’s former partner, living not far away at that time but apparently visiting the house.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
6You were then 57 years of age and, until you had been excluded from the family home because of a family violence safety notice issued on 29 April 2022, you had lived with your wife at the address in Melton South.
7On 29 April 2022 police were called to the address in Melton South in response to an incident which involved you damaging your wife's car after a verbal altercation. You were arrested for criminal damage, taken to the police station and interviewed. You entered a plea of guilty to a charge of causing criminal damage.
8On the same day a family violence safety notice was issued in relation to that incident and was served upon you. It prohibited you from committing family violence against your wife, from communicating with her, from being within five metres of her and from being within 200 metres of your former family home. The only exception to that was that you may attend that address in the company of a police officer to obtain personal property.
9At about 5.00 pm that afternoon you did attend the property in company with the uniformed police officer to obtain some personal property. You and the police departed the property at about 5.50 pm. Almost immediately you contacted your daughter, Chantel, by texting her mobile phone saying a number of things but including, 'On my way home with two cunts in uniform.’ ‘Wow, thanks for the loyalty – die cunt.’ ‘Do you want to stop thinking about yourself and try to help me.’ ‘I think ending it all tonight is a good option, if this is what I'm worth.’ ‘Ask [Jill], that is your former wife, 'to call me, I want to say bye 'cause I do love her.' You then apparently apologised and said, 'Goodbye, [Chantel], you are making me want to kill myself.'
10As a result of those messages Chantel was naturally concerned for your safety and welfare. She called Triple 0 and reported the fact that you were threatening to commit suicide.
11At about 7.00 pm police attended your then address in Melton South in response to Chantel’s alert. You were said to be very aggressive and angry towards police, particularly in relation to the family violence safety notice and your exclusion from your previous home address. You claimed not to be suicidal and indicated that you were going to stay in your car that night. The police stayed with you for about half an hour and determined that your level of risk was not such that they needed to intervene pursuant to the powers under the Mental Health Act. They then left you and you were last seen walking along the street.
12At about 7.48 pm that same night, shortly after the police left you, you once again contacted your daughter, Chantel. You attempted to call her and send text messages to her, which included, 'I have nowhere to go, I just want to come home.’ ‘You gonna answer?’ ‘Why are you doing this to me.’ ‘I want to come home, tell [Jill] I want to come home please.'
13You continued to send text messages until about 9.10 pm that night. The last message was, 'Don't call police, I just want to go to bed.' About five minutes later, at 9.15 pm, you arrived at your former home. In doing so you contravened the family violence intervention notice. Your wife Jill, daughter Chantel and the visitor to whom I have previously referred, Lindsay, were all at the address in the lounge room about to eat dinner. They heard a commotion at the front door. They heard you yell out, 'Let me in'. They did their best to close the door to prevent you from entering the house. An audio recording was commenced by your wife on her mobile phone and Chantel called Triple 0 seeking police assistance.
14When you were unable to enter the house through the front door you went to the bedroom window, smashed it and entered via the window. Chantel was the first one to see you. You were holding an axe and Chantel ran back to the lounge room to alert your wife and Lindsay. As she did so you followed her down the hallway into the lounge room, still in possession of the axe. Chantel tried to stop you and you pushed her out of the way onto the couch. That pushing action is the subject of related summary Charge 10 of unlawful assault.
15The possession of the axe is the subject of the related summary Charge 15 of possessing a controlled weapon.
16As you went towards your wife you stated, 'I will kill the lot of you.' That threat is the subject of Charge 6 on the indictment of making a threat to kill. It was addressed to all three of your victims who were in the house at the time. At the time you were doing that, you were approaching your wife, Jill, and swinging the axe in her direction.
17Soon after that you stumbled and fell to the ground with Jill. Jill at that stage believed that you were going to kill, not just her but the others present. As a result of you and Jill falling to the ground, Jill suffered a laceration to the back left side of the head. It was not caused by the axe but somehow otherwise in the motion of falling to the ground.
18After your wife was injured, Chantel pulled you off her and you dropped the axe, but you then went to the kitchen and grabbed a large knife before returning to the lounge room. By then your wife, Jill, Chantel and Lindsay were all huddled on the couch, you stood in the doorway of the lounge room with a knife in your hand, preventing any of them from leaving the premises. The audio recording continued. That action by you in preventing those present from leaving the premises is the subject of Charges 2, 3 and 4, each of falsely imprisoning those three people.
19The audio recording was played during the plea in mitigation and is Exhibit C on the plea hearing.
20Whenever any of the three who you detained attempted to move out of the lounge room, you moved in front of them, making it clear that they were not to leave. All three of them felt compelled to stay put in the lounge room because you were still armed with the knife.
21According to the prosecution opening, which is not challenged, they remained trapped with you in the lounge room for about 30 minutes. At some stage you dropped the knife, Chantel took it and gave it to Lindsay to ensure that it was out of your reach. When Lindsay asked if she could go to the door to see if the ambulance had arrived you refused to allow her to do so stating, 'You unlock the door, I'm going to gaol.'
22The police arrived at about 9.40 pm, knocked on the door and Lindsay pleaded with you to open the door. You refused and you would not allow any of them to open the door. Eventually, Chantal was able to push past you and open the front door and at that point of course the police entered and arrested you. The axe was located nearby. You were taken to Melton police station. Paramedics attended the address and treated Jill for her laceration.
23You arrived at the Melton police station in the early hours of 30 April 2022. You continued to be aggressive towards the police, and given your demeanour and the uncertainty as to whether you were substance-affected, a forensic medical officer was called to determine your fitness to participate in a recorded interview. You were not cooperative when the forensic medical officer endeavoured to speak to you. In those circumstances he was unable to assess you and there was no interview conducted with you.
24It was conceded by the prosecution that the matter resolved on the morning of the committal hearing, prior to any witnesses giving evidence.
25The prosecution also relied upon two victim impact statements, one from your former wife, Jill, and one from Lindsay Brewer. Each of them speaks of the incident and of the ongoing emotional effects that they have suffered as a result of the incident. Your former wife says in the second paragraph: 'On the day of the attack, when I saw the axe being risen to above my head, I thought I was going to die there and then.'
26Turning to matters personal to you.
27Your counsel provided me with plea submissions dated 14 August 2024 and I have received today supplementary submissions dated 7 October 2024. Those two documents collectively are Exhibit 1 on the plea.
28In addition, I was provided with a report from Dr Aaron Cunningham, psychologist, dated 5 August 2024 which very helpfully sets out information about your background, medical history and drug and alcohol history. He speaks of your mental state and your history of major depressive disorder which had resulted in electroconvulsive therapy. He notes your history of drug abuse. In answer to a question raised by the letter of referral under which he was operating, under the heading 'The relationship, if any, between your condition and the offending’, he opines, and I quote from that paragraph on p5 of his report:
'In my opinion Mr Otten's overwhelming depressive symptoms combined with methylamphetamine diminished his ability to think and concentrate at the time of the offence. His behaviour in the police cells indicates he remained emotionally overwhelmed following the offence. However, in my opinion, Mr Otten's drug abuse and association with drug abusers were the main contributors to his offence behaviour. It is likely that Mr Otten's offence behaviour would not have occurred were he not abusing drugs.'
29And that follows the opening sentences of that paragraph which read:
'In my opinion, Mr Otten was suffering from depression during the period of his offending. However, he stated he had used methylamphetamine on the day prior to the offence. He had been a regular user of methylamphetamine and it is likely the drug had built up in his system.'
30He goes on to say:
'In my opinion, methylamphetamine would have increased his general levels of impulsivity, aggression and irritability.'
31Exhibit 3 was two reports from Orbit Medical, Norlane, dated respectively 6 March 2024 and 30 August 2024.
32There is a letter dated 12 August 2024 from a Mr Stephen Meade, psychologist, of Executive Function Clinic.
33Exhibit 5 consists of four read-outs of drug test screening results indicating that you had not been using methylamphetamine, or other illicit drugs, immediately prior to 5 August 2024, 6 August 2024, 4 April 2024, 12 April 2024, 5 August 2024, 6 August 2024 or 12 April 2024. All of those formed Exhibit 5.
34Exhibit 6 consists of a sentence remand comprehensive prison history report setting out details of your incarceration between 4 May and 5 October 2022,
35Exhibit 7 is made up of your medical file from Barwon Health arising from your dealings with that organisation, particularly in relation to mental health and treatment.
36You have suffered, and it seems continue to suffer, from mental health issues. In the supplementary plea submissions, your counsel drew my attention to the fact that you had been feeling depressed at times in custody and anxious, especially when sharing a cell. In addition to depression and anxiety you have had a fall in custody in the last four weeks and you have damaged your knee ligament and meniscus. You have been in regular contact with your son and your son's mother whilst on remand.
37The written submissions were supplemented by oral submissions by your counsel. It was pointed out to me that you are now 58 years of age, born in the United Kingdom. You moved to Australia in your mid-20s.
38It seems from the psychologist's report, and also in your counsel's outline, that you are a fully qualified chef and worked as such in the UK and in Australia. In more recent times you worked as a truck driver. You have been unemployed since COVID lockdowns, and because of your mental health you have been unable to return to work.
39You have a history of skull fracture, two metal plates in an eye socket and plates at three cervical vertebrae. You have a history of a motor vehicle accident and sporting injuries. You also suffer from diabetes. Your counsel concedes that for a period you were a marijuana user and in more recent years you commenced using methamphetamine but have not been using since release from your earlier period of custody during 2022. She notes that you admitted that you had been using methylamphetamine the day prior to the offending conduct.
40She points out that the offending occurred on a single day in a relatively short space of time against a background of mental health issues. I note that the mental health issues were very significantly affected by the methylamphetamine that you had taken prior to the offending. It seems to me that the offending itself was more indicative of your drug use than of a major depressive disorder.
41Your counsel conceded in her submissions that general deterrence, denunciation, just punishment and community protection must be given prominence in the sentencing factors because of the family violence aspect of your offending conduct. She submitted that the offending was of relatively short duration and occurred at a time when you were depressed as well as suffering from the combination of those symptoms with methylamphetamine use.
42She noted that the injury to your wife, Jill, was minor. The threat to kill was made on one occasion and was not accompanied by physical assault at the time the threat was uttered, although I note that it was uttered at a time when you were wielding an axe. Your victims had every reason to fear that in your state of aggression you might carry out your threats.
43You have pleaded guilty and admitted your involvement in the offending and you did that at a relatively early time. I accept that that supports the contention that you are remorseful. You have facilitated the course of justice and acknowledged your criminal responsibility for your offending. You are entitled to a discount, not just for the remorse but for the utilitarian value of the plea.
44The thrust of your counsel's plea is that you are a good candidate for rehabilitation and that rehabilitation is the important objective in a case such as this and it operates, quite apart from reducing your risk of re-offending, as a protection of the community. The Community Correction assessment report that was provided as a result of my request has assessed you as being at a high risk of re-offending.
45Your counsel submitted that the mental impairment that you had at the time of your offending, a major depressive order, should trigger the Verdins principles that reduce your moral culpability for your offending. That is not accepted by the prosecution. Nor I am persuaded that your counsel’s submission is correct. The evidence provided by Dr Cunningham does not support that contention. It seems to me that methylamphetamine had more to do with your offending on that day than a major depressive disorder.
46However, the major depressive condition is likely to be adversely impacted by your period of incarceration and you will do your time harder as a result of your mental impairment. I accept that the Verdins Principles 5 and 6 apply to reduce the sentence that might otherwise be appropriate.
47Your prospects of rehabilitation remain guarded. Indeed, there is a high risk of you re-offending according to the assessments that I have received. That must be considered in terms of individual deterrence as well as protection of the community.
48Another factor that your counsel pointed out to me was that, although you are a permanent resident of Australia, you are not an Australian citizen and there is a risk of you being deported if you were to receive a term of imprisonment in excess of 12 months and the principles in the case of Guden v The Queen [2010] 28 VR 288 should apply. The prospect of you being deported will impact your capacity to cope with your prison sentence. It will be hanging over your head during your term of imprisonment, and will make doing your time harder. Whether or not you are deported at the end of the term of imprisonment is not a matter for the courts and I cannot assess the prospects of that occurring. However, I accept entirely that the worry that that might occur will be quite significant.
49In submissions on behalf of the prosecution my attention was drawn to the decision of the Court of Appeal in The Director of Public Prosecutions v Gregory Reynolds(a pseudonym) [2022] VSCA 263. The court in that case referred to the relevant principles which arise in sentencing for matters involving family violence. They referred to a number of authorities on those points, introducing that part of their judgment in paragraph 71 as follows:
'Regrettably, this is yet another example of appalling family violence which has come before the courts. Family violence is a blight on society which this court ‘has been at pains to denounce'. [referring there to another decision of the Court of Appeal].’
50This is just such a case. The court has to ensure, as far as possible, that the sentence imposed for cases such as this is such as to deter others from committing similar sorts of offences, to adequately deter you, to punish you adequately, to denounce your conduct and to offer a measure of protection to the community at large.
51Nevertheless, I take into account the fact that your offending was of relatively short duration, that the injury to your wife was relatively minor and other matters that are urged upon me by your counsel, some of which I have referred to in these reasons.
52Doing the best I can to marry all of the respective sentencing principles to avoid imposing a crushing sentence upon you, as I have been urged by your counsel to apply the principle of parsimony and to promote your rehabilitation to the extent that I reasonably can, I proceed to sentence you as follows.
53On Charge 1 of contravention of a family violence intervention notice, you are convicted and sentenced to imprisonment for 12 months.
54On Charge 2 of false imprisonment, you are convicted and sentenced to imprisonment for a period of 14 months.
55On Charge 3 of false imprisonment, you are convicted and sentenced to imprisonment for 14 months.
56On Charge 4 of false imprisonment, you are convicted and sentenced to imprisonment for a period of 14 months.
57On Charge 5 of recklessly causing injury to your wife, you are convicted and sentenced to imprisonment for six months.
58On Charge 6 of making a threat to kill, and I note here that this was directed at all three of your victims present, made in circumstances where it was calculated to cause them to fear that the threat would be carried out and would no doubt have caused them a level of fear that they probably never experienced previously in their lives, I convict you and sentence you to imprisonment for a period of 16 months.
59In addition, for the related summary offence of unlawful assault on your daughter Chantel, I regard that as relatively minor and I convict you and impose a fine of $500. In relation to the offence of possessing a controlled weapon without lawful excuse I convict you and sentence you to imprisonment for one month.
60I make the following orders of cumulation. The sentence of 16 months imposed for Charge 6 on the indictment is the base sentence, and I order that three months of the sentence on Charge 1, two months of the sentence on Charge 2, two months of the sentence on Charge 3, two months of the sentence on Charge 4, and one month of the sentence on Charge 5 be served cumulatively upon one another and upon the sentence of 16 months on Charge 6, making a total effective sentence of two years and two months' imprisonment.
61I fix a non-parole period of one year and five months.
62But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years and two months with a non-parole period of two years and four months.
63I declare pre-sentence detention of 214 days as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the time you will actually have to serve.
64I make the disposal order in the terms of the draft with which I have been provided.
65Are there any other matters, counsel.
66MS PHAIR: Your Honour, just in relation to the summary offence of possess controlled weapon with the one month sentence, is that to be served concurrently ‑ ‑ ‑
67HIS HONOUR: Yes, served concurrently.
68MS PHAIR: As the court pleases.
69HIS HONOUR: Thank you both for your assistance.
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