Director of Public Prosecutions v Patten
[2019] VCC 867
•14 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
CR-18-02017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRAHAM PATTEN |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | Trial: 29 May – 4 June 2019 | |
DATE OF SENTENCE: | 14 June 2019 | |
CASE MAY BE CITED AS: | DPP v Patten | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 867 | |
REASONS FOR SENTENCE
---
| Subject: | CRIMINAL LAW |
| Catchwords: | Found guilty by jury verdict - make threat to kill – context of family violence |
| Legislation Cited: | Crimes Act 1958; |
| Cases Cited: | Ibbs v The Queen [1987] HCA 46; Saltalamacchia v R [2010] VSCA 83; Forbes (a pseudonym) v The Queen [2018] VSCA 341; Pasinis v The Queen [2014] VSCA 97; The Queen vRobazzini [2010] VSCA 8; R vOktugen (1982) 8 A Crim R 262; Boulton v The Queen [2014] VSCA 342; Hutchinson v The Queen [2015] VSCA 115. |
| Sentence: | Convicted and sentenced to six month’s imprisonment and a community correction order for a period of three years. |
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Mandie (Trial and Plea) Ms B. Kelly (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr S. Kennedy (Trial and Plea) Mr S. Kuan (Sentence) | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1 Mr Patten is a butcher. He is now aged 32, born on the 6th day of June 1986.
2 In this trial and plea he was represented by Mr Kennedy and the Director was represented by Ms Mandie. Today Ms Kelly appears on behalf of the Director and Mr Kuan for Mr Patten.
3
In the indictment which went to trial, a verdict was delivered on
4 June. The finding in regard to this charge on the indictment was one of guilty, a plea insofar as this charge, which was the only charge that Mr Patten was convicted of, took place on 5 June and was adjourned to today for sentence.
4 The seriousness of the crime is demonstrated by the fact that this offence, pursuant to s.20 of the Crimes Act has a prescribed maximum penalty of 10 years imprisonment set by Parliament.
5 The circumstances of the offending, which the jury convicted Mr Patten of, being a threat to kill were concerning, especially when one takes into account that this threat to kill, effected on 26 May 2015, was made against his former partner, the mother of his two children.
6 This crime came about from Mr Patten's brooding all day as to his ex-partner's contacts with another person, such being promoted by his own inappropriate access of his former partner's texts on her Facebook communication.
7 Given the communications and texts that he was able to observe, and the alleged contact between his former partner and another man, he deliberately went ahead and arranged an outing with her. On the way into the Lerderderg Forest the complainant, who had consented to go on the trip, expressed her concern, as the car went further and further.
8 Mr Patten admits that he was exceedingly angry in the car, an expression of that anger is the fact that, with his fist, he broke the front window of the car. I am not sure if anyone can quite appreciate what force that takes, but that is extreme force. Not only was he angry, but he was calling his ex-partner a 'slut.'
9 In his pretext statement he took the view, in discussing his behaviour, that his partner had 'forced him to snap.' Of course she did not. What caused him to snap was his inability to control his own emotions, and his inappropriate reaction to his ex-partner exercising her independence.
10 The complainant says that, thereafter, having been so abused and seen the anger he expressed she was told to get out of the car. At transcript p.99 she said that you, Mr Patten, produced a shovel. As against your statement that the shovel was always in your car, she said she had never seen that before. You told her to start digging and take the shovel. She said no, she did not want to. She was crying. You further said, 'Start digging your own grave, you are not coming out of here alive.'
11 As to this crime, you yourself made an admission in the pretext conversation which was tendered in the trial as Exhibit B. That admission is chilling. Indeed, it smacks of an amazing lack of understanding of the culpability of what you did. I will read from the depositions at p.138:-
Complainant: 'Even what I did to you was wrong, maybe.'
Mr Patten: 'And then you turn to my face and to my face I like the attention, it felt good, yeah, you want a bit of attention from another bloke. Yeah, no worries, slut. You want to be no one worries, cunt, you want to be fucked by me, no worries, it is still pretty bad but I did – but what I did – but you – look, you forced me into it, you know, with your fucking saying that shit.'
Complainant: 'I didn't force you to do anything and I can't force you to do what you did.'
Mr Patten: 'You forced me to snap, well, I took it to another level but'
Complainant: 'You knew what you were going to do, you knew what you were going to do, you thought about it all fucking day. Your mum had known all day.'
Mr Patten: 'Not that I was planning to drop you in the bush and just leave you there if I found out something had happened.'
Complainant: 'With a shovel?'
Mr Patten: 'Well, yeah.'
Complainant: 'Who does that? Shit, it is like Ivan fucking Milat, fucking shit.'
Mr Patten: 'That's it, mate. That's what they call me, 'cuz.'
Complainant; 'That's not funny.'
Mr Patten: 'Well, do not fuck with me. I told you, do not try to use it against me for what you have done in the past. Do not use that against me.'
12 It is of course necessary to point out that Mr Patten is not here to be sentenced for his antediluvian attitudes to his ex-partner and mother of his children, nor for his crude conversation.
13 In the victim impact statement, Exhibit B on the plea made after the verdict, the complainant, referring to this crime, says:
'The crime that Mr Patten did to me has affected me not only emotionally, mentally, but also physically.'
She suffers from panic attacks, she lives in fear every day,
'Am constantly looking over my shoulder making sure I'm not being followed. I'm afraid of Mr Patten and what he could do to me. I have flashbacks, I have difficulty travelling past the forest, my fear levels for my safety are at their highest that they've ever been. I don't feel safe at all.'
14 In the plea opening Ms Mandie submitted that I should find objectively such crime at the upper end of seriousness for crimes of this type. I refer to the scale of heinousness and the manner in which one assess crimes, as set out by the High Court in Ibbs v The Queen [1987] HCA 46.
15 This crime is serious simply because of the maximum penalty imposed by Parliament, but the particular aspects of the crime to be taken into account are as follows:-
Firstly, it was planned.
Secondly, it was deliberate.
Thirdly, it was an outrageous reaction to his partner. The performance within the car was aggressive, punitive and deliberate. In the car as the complainant describes Mr Patten, you were angry and swearing.
Fourthly, having taken her outside the car or forced her outside the car, the terrifying context of such threat made, is aggravated by the fact of you producing the shovel for her to dig her own grave. She gave evidence to the jury that during this time she was crying hysterically. She said in evidence that she refused to dig her grave.
16 The complainant made allegations which did not satisfy the jury, beyond reasonable doubt, of you carrying out assaults and rape thereafter and a subsequent threat. She said that she was petrified in relation to this incident and in fact, in evidence, which obviously at that stage must be understood to then include all of the allegations, said she was on the ground out at the site. She said to you, 'Just leave' when you then told her, 'No, get in the car.' And she said at that stage she was so scared.
17 In assessing the seriousness of this crime and its objective culpability I take into account the words of the Court of Appeal in Saltalamacchia v R [2010] VSCA 83, [17], where the Court said:
'Violence by men against women, is a social evil. The victims must be protected by the courts and perpetrators suitably punished.'
18 In that case the court endorsed the trial judge’s view of the seriousness of the charges. While the threat to kill in that case, was one of four charges, it is important to note that the sentence imposed for the threat to kill, after a plea of guilty, was two years. The threat in that matter being made to a domestic partner that the prisoner would 'slit her throat.' I point out, not only did he plead guilty, but he had no priors, similar to you.
19 The Full Court in Forbes (a pseudonym) v The Queen [2018] VSCA 341, said that the context of family violence in these sentences is very important, and were guided by the words of the Court of Appeal in Pasinis [2014] VSCA 97, [42] and [53], where the Court said this.
'Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It had also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.'
I point out that the offending in Forbes was far more serious than I am dealing with here.
20 Your counsel has today tendered a written submission in regard to Robazzini [2010] VSCA 8, and a number of the matters that he refers to I accept. However, the base sentence in that case of three years was imposed for the threat to kill. The particular circumstances concerned a male who had his partner terrified in a car, threatening to drive the car into a pole and kill them both. I accept the matters put by your counsel, that the prisoner in that matter had very significant priors and priors for violence. However, a substantial point of difference is that he had pleaded guilty. As I say, the base sentence imposed was three years.
21 Mr Kennedy accepted that this was a serious threat, and that the aspects of general and specific deterrence must be taken into account. He submitted that whatever the circumstances, the complainant was not cowed, and in fact, refused to take the shovel and dig as you had requested her to. He also pointed out that she was not physically injured by you, and that seems to be true although I have already referred to the emotional effect upon her.
22 I, in balancing all of those factors, find that the submission of the prosecution should be accepted, and your culpability, should be assessed at the upper end of heinousness. It was really quite outrageous.
23 Of course, the sentencing process, is two phased. It is necessary not only to access culpability, but to look to any factors of mitigation.
24 Ms Mandie submitted in her final paragraph of the written submissions that given the seriousness of this crime, there was no sentence that was appropriate, except for a period of immediate imprisonment.
25 HIS HONOUR: Ms Kelly, I don't think the Crown made a submission, because I think we didn't have a report as to the issue of whether the immediate imprisonment was combined with a CCO or not. I didn't hear anything from the prosecution, all I heard was that an immediate period of imprisonment was appropriate.
26 MS KELLY: Your Honour, to clarify that, our position on sentence is that a combination sentence is not within range.
27 HIS HONOUR: Is not within range?
28 MS KELLY: Not within range Your Honour.
29 HIS HONOUR: And as clarified now by Ms Kelly, the further submission of the prosecution is, given the seriousness of the crime, a combined sentence, that is a period of immediate imprisonment and a community correction order, is not within range.
30 In response to that, Mr Kennedy, as I said, accepting the seriousness of the crime and the need for general deterrence, put that firstly you have no priors and in those circumstances which is accepted by this Court, you are entitled, Mr Patten, to mercy. In that regard, your age is 32, and you come before this Court without any priors. In that regard, I refer to Okutgen, which was a determination of the Full Court, delivered by Starke J, with concurrence by Crockett and O'Brien JJ, (1982) 8 A Crim R 262, 265-6, where the following was said:
'The first and basic matter that affects my mind is the fact that the applicant has reached maturity without any breach of the law at all. That he has led a decent, honourable life, he has raised a family, he has been in fairly constant work and he has engaged in community activities.'
31 The point in your favour, Mr Patten, is as follows. A man of your age, when first convicted can, I think, call in aid his character and is entitled to ask the Court to rely very strongly indeed on such fact and has been so up to the moment of his conviction. However, there were some differences from Okutgen. There was indeed actual provocation there and the prisoner had acted in the heat of the moment, which you do not have. Secondly, it was not pre-meditated, as in your case. The exercise of mercy in Okutgen, while understanding general deterrence was still appropriate, recognised the acting in the heat of the moment, which you had not, and it was not a premeditated violent crime. So, such general principle as to mercy, has to be balanced against the circumstances of your crime.
32 Mr Kennedy said that you had in fact expressed remorse, and referred to the statements made in the pretext tape by you. It seems to me they are somewhat equivocal, given the statements that I read out from the pretext tape. It is also important to note, that by your plea of not guilty and going to trial, you do not suffer. Mr Patten, you are entitled to put the prosecution to its proof. You do not suffer as a result of that, but having been found guilty, you come to be sentenced, however, with no remorse that you can rely on. As I say, the remorse expressed in the pretext tape has to be seen as equivocal.
33 The document tendered today, Exhibit D, which is the report from the Community Corrections Department of Justice dated 11 June is somewhat concerning, given your comments reported therein. You seem still to be able to be easily angered. You express, again, blame against your ex-partner instead of accepting that you were totally to blame. You seem to fail to understand that you are the sole reason for being in this Court, not your partner, and you do not seem to understand the extent of your own criminality. In your favour, put to the court, was the Exhibit 1, which was the reference from, the secretary of the Braybrook footy club, Narelle Logan, which talks about your volunteering, your work on Auskick, and also notes your dedication to your current family, which is made up of six children.
34 In that regard Mr Kennedy asked me to take the family into account, and of course, from a humane point of view I do. However, there is nothing exceptional, many persons are gaoled, leaving families in difficult positions. It is only in exceptional cases the law allows such to impact on sentencing.
35 Mr Kennedy sought leniency, referred to the principles in Boulton [2014] VSCA 342, and asked that a community correction order be passed on you, rather than a period of immediate imprisonment.
36 The report received notes that you present with a medium risk of re-offending, according to that officer. It notes the ongoing anger and indeed the hatred that you express. If you were given a community correction order, there would be need for not only unpaid community work by way of a punishment, but programs to reduce your anger, drug and alcohol dependency and perhaps also some assistance from a mental health point of view. In assessing Mr Kennedy's request I take into account the submission of the prosecution that a mixed sentence, by way of imprisonment and a CCO is not within range.
37 I said at the time to Mr Kennedy, it is necessary to take into account, when considering this sentence the words of Priest JA in Hutchinson [2015] VSCA 115, [53], where he said:
'There will be cases, indeed many cases, where having regard to the seriousness of the offending, a community correction order will be insufficiently punitive to satisfy the need to punish the offender in the manner which, in all of the circumstances is just.'
38 The prosecution also put Exhibit C to me, the sentencing snapshots. Unfortunately that snapshot numbered 174 is somewhat old. But in the five year period recorded, 50 per cent of the persons who are dealt with for this offence were given imprisonment. The medium imprisonment period was one year and where it was combined with other offences, the median was one year and six months.
39 One matter of course, of concern, while this is not a prior offence, is the fact that you have, since this offending, been subsequently convicted of a serious violent offence. That in fact occurred in October 2014, but you were not dealt with until July of 2015, which was subsequent to the offending that I am dealing with. However, it again involved, while not directly a domestic matter, obviously friends of yours, where you punched, kicked and broke a person's nose, requiring hospitalisation. Given that you had no priors, you were given a community correction order of one year. The Magistrate noted the requirement for anger management. Those matters are obviously matters that I have to take into account. As I say, your subsequent conviction is not a prior, but was rightly brought to the Court’s notice and is relevant, in assessing the appropriate sentence to be imposed on you.
40 Mr Patten, being as merciful to you as I can, there is no way, given the seriousness of this crime, the maximum sentence, the need for general and specific deterrence and the context of this threat, that I can impose anything other than a period of immediate imprisonment. Despite the submission of the prosecution, I do however intend to give a combined sentence under s.44. As I say, I do this noting that the prosecution have submitted such is not within range.
41 In my view given the totality of the factors in this case, a combined sentence is appropriate. However, it is, and is meant to be, tough. It will be for a period of three years. During that period, you will be required to undertake anger management courses. You will be required to take drug and alcohol courses, you'll be subject to supervision. You will also be required to perform community work of some 200 hours. You are now the age of 32. You are an angry person. You have a gross and outdated attitude to women. You need to change your attitude immediately, otherwise serious gaol is going to be imposed upon you. However, and you have got to decide to consent to this CCO, if you do not think that you can comply with it, then better that I give you a straight gaol term now. I intend, however, to sentence you to a period of six months plus the CCO of three years.
42 If you do not intend to change your lifestyle, you had better tell us now, so we do not waste our time on you. As is said, the community correction persons take the view that you have a medium risk of re-offending. If you do not change your lifestyle, I would have thought that is probably an underestimate. However, given that you have no priors, given that you have got to the age that you have crime free, I am prepared to give you a chance, albeit that you must serve a period of immediate imprisonment, given the seriousness of this crime.
43 HIS HONOUR: Mr Kuan, it is necessary for you to explain to your client very forcefully that if I impose this order and he's subject to supervision, if he comes back in front of me, it won't be only six months. So if he won't comply or can't comply he'd better wake up now, because I'll give him a straight sentence. Better get some instructions.
44 MR KUAN: Thank you, Your Honour.
45 HIS HONOUR: Do you want me to stand down?
46 MR KUAN: Yes Your Honour, yes, thank you.
47 HIS HONOUR: Yes.
(Short adjournment.)
48 HIS HONOUR: Yes Mr Kuan.
49 MR KUAN: Yes Your Honour. Mr Patten has agreed that he will do the three years CCO.
50 HIS HONUOR: Yes, well I want to make very clear, if he doesn't comply with this, he knows the consequences.
51 MR KUAN: Yes, Your Honour.
52 HIS HONOUR: He won't need to bring any barristers or anyone next time, just his toothbrush, all right. Of course, given the type of crime, I also require him to undergo some mental assistance, just to ensure there's no issues with him. All right. Yes Mr Patten, if you'd stand up please.
53 Mr Patten for this offence you will be convicted, sentenced to a period of imprisonment of six months plus, pursuant to s.44 of the Sentencing Act, a community correction order for three years to which you will be subject to supervision and programs to assist you in regard to alcohol and drug issues, anger management and for any mental issues that may apply to you. You will be required to undertake community work, which I set for the period over the three years of 200 hours, and pursuant to s.44(3) that community correction order will commence upon your release from gaol.
54 HIS HONOUR: And Madam Prosecutor, how many days have we had by way of PSD?
55 MS KELLY: We have eight days, Your Honour, not including today.
56 HIS HONOUR: Eight days.
57 I make a declaration that the presentence detention you have served in this matter is a period of eight days. However, pursuant to the provisions of s.44, it is my intention that you serve the six months on top of the eight days served. And the community correction order, as I said, will begin after the completion of the six month sentence, whatever that turns out to be administratively. Yes, thank you. Mr Patten can be taken away.
58 HIS HONOUR: Any other matters I have to attend to? Wait on gentlemen, officers, one sec. Any matters I need to attend to?
59 MS KELLY: Yes, Your Honour, there's an application for a forensic sample order.
60 HIS HONOUR: Yes I'll make that in the circumstances.
61 MS KELLY: Thank you Your Honour.
62 HIS HONOUR: Mr Patten, what that means is you'll be required at some stage to spit on a bit of cotton, so they can get your DNA matters. If you do not do it there, you can be brought back to court for me to make an order, so I'd ask you to do that, all right? Good luck, do not want to see you again, all right? What else? Yes, sorry officers, we've got to get this order signed, just take a seat. Yes, Mr Patten can be taken away thank you. Yes, I'll stand down. Is the prosecutor available for the next matter yet? He's available right. All right, when we're ready, thank you.
- - -
0
6
0