Director of Public Prosecutions v Payne
[2017] VCC 1342
•27 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02058
CR-17-01316
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMINIC PAYNE [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 17 July 2017 | |
DATE OF SENTENCE: | 27 July 2017 | |
CASE MAY BE CITED AS: | DPP v Payne | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1342 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence -
Legislation Cited: Criminal Procedure Act 2009
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Churchill | Office of Public Prosecutions |
| For the Accused | Mr J. Buchecker | Allan McMonies |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the accused, victim and family or witnesses.
HER HONOUR:
1 Dominic Payne, you have pleaded guilty on Indictment C1711319 to one charge of recklessly causing injury, one charge of aggravated burglary, two charges of intentionally causing injury, one charge of criminal damage and one charge of persistent contravention of a Family Violence Intervention Order. The maximum penalty for those offences are aggravated burglary, 25 years’ imprisonment, intentionally causing injury and criminal damage, 10 years imprisonment, recklessly causing injury, 5 years’ imprisonment, persistent contravention of a family violence protection order, 5 years’ imprisonment, 600 penalty units or both.
2 You have also agreed to a summary charge being transferred to and determined by this Court pursuant to s145 Criminal Procedure Act 2009 from the Magistrates’ Court, and have pleaded guilty to one charge of contravening a Family Violence Intervention Order. The maximum penalty applicable to that offence is 2 years’ imprisonment or 240 penalty units or both.
3 There are two victims of your offending. Relevant to Charges 1 and 3 on the Indictment, your ex-partner, Melinda Chapman, Charge 4 involving Jack Kent.
4 Your offending occurred relevant Charge 1 on the Indictment, on 16 March 2016, Charges 2, 3, 4 and 5 on the Indictment and the summary charge, on 7 May 2016, and Charge 6 between 23 June 2016 and 4 August 2016.
5 It is not necessary for me to recount in great detail the facts in this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to say that I regard the facts in this case as most serious and disturbing.
6 I turn to a summary of your offending.
7 At the time of this offending you were 58 years of age, living in Barkly, having lived there for approximately a week. Your victim, Melinda Chapman, at the time of your offending, was 38 years of age and lived with your 11 year old son, Andrew (Andy). The other victim, Jack Kent, was a resident of the Landsborough area, known socially to both you and Chapman.
8 At the time of this offending, you and Chapman had been in a domestic relationship for approximately twelve years. That relationship was volatile, with previous reports of violence to police when in Queensland and Victoria, and with approximately nine intervention orders in place over the years.
9 On 16 March 2016, during the afternoon, you and Chapman argued. You punched her to the left-hand side of her body with a closed fist, causing her to fall to the ground (Charge 1). While Chapman was on the ground, you kicked her in the back. She left the premises, walked to the police station in Landsborough and reported your assault upon her. You were charged, and a Family Violence Notice was served on you, forcing you to leave the premises. On 23 March 2016, a full intervention order was taken out by Chapman, naming herself and Andy as the AFM’s. The order was for a period of twelve months and was served on you at 1.35pm that day.
10 At the time of your next offending (charges 2, 3, 4, 5 and the summary charge), you had been out of the family home for approximately two months.
11 On 7 May 2016, arrangements had been made between Chapman and yourself for Andy, to spend the weekend with you.
12 Later that day Chapman arranged for Tim Wolf to drive her into Landsborough between 5.00 and 5.30pm to get a pizza from the hotel.
13 When Chapman arrived at the hotel, she and Wolf met with Jack Kent. While Chapman was at the hotel, you called her numerous times on her phone, harassing her because she was out with friends. Chapman saw you drive past the hotel with Andy in your car and described that as you drove past you gave her a “death look”. You then drove towards Elmhurst, but turned the car around and drove back the other way. Chapman told Kent you had been turning up at her house and annoying her.
14 Between approximately 7.30 and 8.00pm the pizza was ready and Chapman was driven back to her address by Wolf. Approximately an hour later, you called Wolf looking for Chapman, telling him to “put that cunt of a dog on the phone”. Wolf told you he was not with Chapman and that he had dropped her off at her home.
15 At approximately 9.00pm, Kent arrived at the address where Chapman was living, as he had concerns you would turn up and annoy her.
16 Approximately ten minutes later, Chapman saw headlights near the front of her premises. She knew it was you as she recognised the car.
17 Chapman told Kent to “get down” and she ran to the front door and locked it. Kent went to the back door and left. Chapman then ran to the back door and also locked that door.
18 Chapman heard you walking towards Kent’s car and then coming to the house saying “Whose car is that?” When you got to the front of the house you started kicking the front door and bashing the front lounge room window, yelling, “Where is that fucking low life cunt”
19 The front window smashed and you climbed through the window, ripping the curtains down as you did so (Charge 2).
20 You came into the kitchen and pushed Chapman to the chest saying, “Where is he” and called her a “cunt”, “dog” and “low life slut”. You proceeded to search every room in the house looking for Kent.
21 You could not find Kent in the house, so got back in your car and left. A few minutes later you returned to the premises. When you returned, you pulled up in the back yard and Kent went over to you. Kent saw Andy behind you. You grabbed Kent and started throwing punches at him, one hitting Kent in the left eye. Kent grabbed you, pinning you to the ground and telling you to settle down (Charge 3). Kent received a black eye and grazes to his left cheek and nose area.
22 Chapman was panicking, because while you did this Andy was behind you, saw everything you were doing and became upset and started screaming. Chapman ran upstairs to call the police, but the phone upstairs had a flat battery so she could not use it. While upstairs she heard Kent’s car start up, with you screaming at Kent, then Kent leaving the property. You started to leave in your vehicle, but reversed it into a tree, causing damage to the rear window of the car.
23 You went back inside the house and up the stairs screaming at Chapman that she was ‘a dog, cunt and low-life slut’. At that time, Andy was with Chapman, still crying and screaming.
24 Chapman told you to get out. In response you punched her with your right fist to her left cheekbone. That stunned her and caused her to fall backwards, landing on a table. You grabbed her by the hair, forcing her neck and head backwards, then grabbed her arms and tried to put them behind her back, which caused her extreme pain (Charge 4).
25 You pulled the phone cables out of the wall, preventing Chapman from using the landline to contact police from the downstairs phone (Charge 5).
26 Chapman tried to leave the house, but when she tried to do so Andy pleaded for her not to go. Chapman left and headed out of the house towards the golf course where she hid behind a tree.
27 From behind the tree, Chapman saw you leave the premises and drive towards Landsborough. When she saw you leave she returned to the house and tried to locate her mobile phone, however when she could not, made her way to the nearest neighbour about 400 metres away.
28 At approximately 11.25pm, Chapman reached that neighbour. Police were called and subsequently arrived at Chapman’s property at midnight. Chapman went to the Landsborough Police Station where police called an ambulance. She was transported to the Ballarat Hospital and treated for a suspected fracture of her left cheekbone and sore left shoulder, bruising to her wrists and a black eye. I note medical material before me (Exhibit F) indicated there was not a fracture.
29 Police attended and saw the lounge room window had been smashed and pulled from its hinges. They also saw telephone wires removed from the socket in the wall.
30 A full intervention order was in place at the time these offences (charges 2, 3, 4 and 5) were committed (summary charge – breach of intervention order).
31 The next day, Sunday, 8 May 2016, you attempted to speak with Wolf on the phone, however, Wolf would not answer your call. At 11.15pm that night you sent a text message to Wolf, “Tim, it is Dominic. I’ve got … with me and he wants to go home …”. Wolf did not respond to the message.
32 Earlier, at 8.15pm that night you were involved in a single-vehicle collision in Landsborough, when you drove your car into a tree.
33 Police attended and saw your vehicle had recent damage and that the rear-hatch window was missing and protected with plastic sheeting. You were taken by ambulance to Ararat Hospital.
34 On 9 May 2016 you were released from Ararat Hospital and conveyed to the Ballarat Police Station where a record of interview was conducted. In that interview, amongst other things, you said you followed Andy into the house, that Chapman was half naked and that she started punching you. You did not know why you broke the window or pulled it out, as you entered the house through the door. You had a confrontation with ‘Kent’ and you had started it. You said you punched Chapman and she dropped and got hurt, and you only did this after she hit you, and that had occurred outside. You no longer maintain your account of Chapman being half naked and starting the assault.
35 You told police you understood the terms of the Intervention Order and knew you had breached it by going to the property and into the house. You did not think you said that you were going to kill ‘Kent’. You said it was Andy that went through the window and not you, and you said you pulled the cables of the phone out of the wall because the phone was playing up (neither now maintained). You said you knew whose car it was at the house, having earlier at the scene demanded to know whose car it was.
36 In your record of interview, in my opinion, you minimised your involvement in this offending.
37 On 16 May 2016, a VARE was conducted with Andy, who said you hit the front door of Chapman’s house, broke the window, got into the house, and that he had seen you fight with Kent.
38 Between 23 June and 4 August 2016 you sent letters from Port Phillip Prison to Andy and one to M. Chapman/Andy Payne, care of Carol Treloar, in breach of the intervention order (Charge 6). Those letters in general terms were to your son and expressing your sorrow at not seeing him. None contained threats by you, however the sending of this correspondence repeatedly breached the Order.
39 You have been in custody since 9 May 2016.
40 You have admitted a concerning prior criminal history, in particular, a number of occasions you appeared at court for breaching past Intervention Orders. You first appeared at Melbourne Magistrates’ Court on 4 July 1994, on two charges of breaching an intervention order, and were convicted and fined an aggregate of $600.
41 You next appeared at Oakleigh Magistrates’ Court on 13 July 1994 for breaching an intervention order and were convicted and fined $100. In 1998 you appeared at Ringwood Magistrates’ Court on charges of deception, and were given a suspended sentence and fine. Both these appearances involved your previous partner.
42 You next appeared at Bendigo Magistrates’ Court on 11 November 2014 on a charge of contravening a Family Violence Final Intervention Order and, without conviction, the matter was adjourned on a good behaviour bond to 10 November 2015.
43 You next appeared at Stawell Magistrates’ Court on 3 February 2015 on a charge of contravening a Family Violence Final Intervention Order and unlawful assault, and without conviction the matter was adjourned to 2 February 2016 on condition you accept counselling from Mike Ryan.
44 I discussed with your counsel your two most recent prior court appearances involving offending by you relevant to this same complainant, Chapman. Regarding your appearance on 3 February 2015, that offending occurred on 10 July 2014. I was provided with a written summary of that and, in brief, it involved you yelling at Chapman, grabbing her and dragging her onto a bed. In other words, not only verbal, but also physical abuse.
45 The offending dealt with at Court on 11 November 2014, occurred on 9 August 2014, a month after your offending on 10 July. From the summary on that occasion, you wanted to see your son. Excessive alcohol use by you was part of the background to that offending. You verbally abused Chapman and pushed her, causing her to fall backwards.
46 You have a number, as I have said, of concerning breaches of orders similar to that before me.
47 You have pleaded guilty to these charges on the Indictment and the summary charge and you are entitled to have that fact taken into account in mitigation of your sentence and I do so. This matter proceeded as follows, through the courts.
48 You were charged with these offences, other than those referable to Charge 6 on the Indictment, on 9 May 2016. On 28 July 2016, there was a committal mention, at which time the matter was adjourned due to a funding issue.
49 On 4 August 2016, the final letter was sent by you (Exhibit 4) and on 8 December 2016 there was a further mention. A plea offer was made by those representing you, not accepted by the prosecution and the matter was relisted for a committal. On 20 October 2016, a bail application was refused. On 22 November 2016,a committal was listed, but it resolved to a plea of guilty without any witnesses being required to give evidence. The matter was then adjourned for a plea of guilty before me on 17 July 2017 and your plea hearing proceeded on that date.
50 As I discussed with your counsel, I accept your pleas of guilty were entered at a relatively early stage and, as I discussed with your counsel, you minimised your offending in the record of interview conducted with police on 9 May 2016 and the transcript will reveal my discussion with counsel in that regard.
51 By your pleas of guilty you have spared the community the time and cost of a trial and witnesses have not been required to give evidence upon your trial.
52 The victim of your offending has suffered considerably. There was a Victim Impact Statement from Melinda Chapman sworn on 18 January 2017. Much of this was inadmissible and both your counsel and the prosecution agreed on the admissible parts. I disregard as I must, inadmissible material.
53 In brief, Ms Chapman said her cheekbone was still painful seven months later and her sight and eating had been adversely affected. I note the medical notes do not refer to any fracture. Her sleeping had improved, but she still gets restless, and feared for her safety. She was always on edge in public. She suffered with anxiety, nerves and stress. It was difficult as a single mother getting to terms with her new life, new school and new friends and she worried about the impact on Andy.
54 She lost many of her friends, and had memories and flashbacks of your offending. Andy’s behaviour had become concerning in that he was rough with his school mates. Andy also had interrupted sleep, jitters and shakes. Andy also lost his best friends (two dogs).
55 It would take she and Andy a long time to recover. Moving home had been a big challenge and expensive.
56 Important also is the notion of social rehabilitation, referred to in DPP v Toomey[1], in which his Honour Justice Vincent cited DPP v DJK[2] being conscious of the differences in those charges from yours.
[1] (2006) VSCA 90
[2] (2003) VSCA 109, [17] and [18]
57 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991), but I am, conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
58 Counsel who appeared on your behalf, Mr Buchecker, filed a written outline of submissions for your plea hearing, and also a chronology.
59 Turning to your background and history you are at sentence 59 years of age. You and Chapman met in 2003 in Brisbane and began living together in 2004, moving to Melbourne after a short time.
60 Andy was born in May 2005 and is now 12 years of age.
61 You originally lived together in Richmond and Templestowe from 2004 to about 2007, then moved to the King River Valley, where you lived before moving to Barkly in about 2011.
62 You rented a property in Landsborough until you separated on 16 March 2016, when you then went to live in Barkly.
63 An Intervention Order was made against you on 23 March 2016 as I have previously stated, restraining you from being within the municipality of the Central Goldfields Shire and from approaching within 5 metres of Chapman and Andy. That order also prohibited contact or communication with Chapman and Andy, and superseded a Public Safety Order issued immediately following your assault of Chapman on 16 March 2016, to which I have earlier referred.
64 The intervention order of 16 March 2016 was founded upon your conduct that day, specifically your assault upon Chapman with a closed fist and kick to her back. You had not lived with Chapman since 16 March 2016.
65 The Intervention Order contained exceptions to the prohibition against contact between you and Chapman and Andy, insofar as any Family Law Act order and Child Protection Order or written agreement provided for such conduct, and between 23 March 2016 and 7 May 2016, you had contact with Andy by agreement with Chapman. You transported Andy to and from school from her home each day. Further, by agreement, you had overnight unsupervised contact with Andy after school on Friday until commencement of school on the Monday, between 23 March 2016 and 8 May 2016.
66 At the time of your offending on 7 May, you were having contact visits with Andy.
67 Regarding the offending in charges 2-5 on the Indictment, you said Andy spent the Friday night with you and that you had taken him to play junior football on the Saturday morning. The following day was Mothers’ Day and it had been agreed between Chapman and you that Andy would return to his mother on the morning of Mothers’ Day.
68 You said you were asked by Andy on Saturday evening if you could go to his mother’s home to pick up a toy drone, and for Andy to collect items he proposed to give to his mother on Mothers’ Day.
69 You said you and Andy drove past the Landsborough Hotel and had seen Chapman at the hotel, but did not stop or contact her.
70 You said you and Andy drove to Chapman’s home at approximately 8.30pm on the evening of the Saturday, 7 May, for Andy to collect the things he wanted.
71 You then saw at Chapman’s property a vehicle that belonged to a man you knew, and a confrontation ensued, resulting in the charges that you now faced.
72 You also instructed that on Friday 6 May, Chapman and you had travelled separately to the Stawell Magistrates’ Court, intending to make a joint application for a variation of the Intervention Order, seeking to vary restrictions regarding you approaching Chapman’s residence, and being within 5 metres of her. You instructed that the purpose of those proposed variations was to enable you to drive Chapman for shopping and appointments as she did not have a licence. You instructed despite this intention you did not actually file an application that day.
73 You instructed you and Chapman attended Stawell Magistrates Court at about noon on 6 May 2016, but were told there was no court time available that day. You left, returning to Landsborough without having the order varied.
74 I also received a report prepared by Michael Crewdson, Psychologist, undated. He assessed you at Port Phillip Prison on 7 July 2017. Your main concern at interview related to your lack of contact with your son. There was a mild sense of grandiosity and you presented as a man of fairly strong and generally fixed ideas. You did not acknowledge any paranoid ideation, although you were convinced your partner had been involved with another man. He described you as quite intelligent, functioning within the normal range of intellectual abilities.
75 You now appreciated your actions were illegal and inappropriate. In the opinion of Mr Crewdson you had some “limited insight into your behaviour” and that there “could” be gains from discussions in a therapeutic context.
76 There were no indications of any major psychological illness, although there might be personality factors that cause you difficulty.
77 You described your relationship with Chapman broke down after an episode of violence on 16 March 2016.
78 Further details were provided in the report of your background and history. You were born in Greece and described a secure and happy upbringing. Your parents are deceased and you have a sister four years your junior. You do not have regular contact with her.
79 When you were approximately 37 years of age, both your parents died within six months of each other and it had taken a long time for you to get over their deaths. You described your relationship with your father as ‘good friends’, and with your mother ‘especially close’.
80 You said there were no difficulties at school, and you completed six years of secondary education.
81 You completed two years of National Service in Greece in the air force but did not obtain any rank.
82 On leaving the armed forces you came to Australia. Despite your poor English you found work in the security industry and later in various aspects of housing construction. You had subsequently and most recently maintained a source of income in manufacturing horticultural equipment such as garden stakes. You said there was a builder friend who would give you work when released from prison.
83 You have had three major relationships in your life from which there are three children, and you do not have any contact with any of them, including not having seen Andy since 8 May 2016.
84 Details were provided regarding your involvement with Chapman from 2003.
85 You appeared hopeful there could be reconciliation with her. You were, according to your account, in a highly emotional state when you discovered you had apparently been supplemented in her life by a person known to both of you (Kent). Mr Crewdson noted, as do I, that it was concerning Andy was involved and witnessed the violence which ensued. It would appear alcohol use had not been a recent issue for you.
86 Mr Crewdson noted that retrospective assessments regarding psychological factors were always difficult to make and there did not seem to have been any disturbed stability in a number of areas of psychological functioning in the past in respect of your relationships. At the time of the offending, you reported you felt like you were “falling apart and going to pieces”. There were currently no major psychological issues present and you seemed well adjusted to your present situation.
87 There was some concern you had an element of denial and that you were far more vulnerable to psychological instability than you acknowledged.
88 Despite your subjective sense of emotional provocation, in the opinion of Mr Crewdson, it would appear you were clearly out of control in the incident involving Chapman and her friend, oblivious to the needs and welfare of Andy.
89 A major issue for you would be having an understanding of your own emotional difficulties. You had a tendency to gloss over or deny major issues. For some individuals, that could lead to eventual discharge of inappropriate behaviour and Mr Crewdson said that may well be the case with you.
90 You did not meet a formal diagnosis of Impulse Control Disorder, but could benefit from Cognitive Behaviour Therapy, and also programs related to anger management.
91 You instructed you saw Mike Ryan three to four times and that the counselling related to your alcohol use. I discussed with your counsel the concerning escalation of violence by you in this current offending before me.
92 Mr Buchecker initially submitted R v Verdins & Ors[3] applied, however seemed to concede that report did not enliven any of the principles in Verdins and that, in my opinion, was an appropriate concession given the contents of that report. I discussed the contents with your counsel and the transcript of the hearing will reveal that, including reference to DPP v O’Neill[4].
[3] (2007) 16 VR 269
[4] [2015] VSCA 325
93 Mr Buchecker, as I have stated, also filed a chronology dated 10 July 2017. A Public Safety Order Notice was issued immediately following the assault on Chapman of 16 March 2016 (relevant to Charge 1 before me on the Indictment) and the intervention order on 23 March 2016 was founded upon the same conduct on 16 March 2016. In that chronology, Mr Buchecker referred to the reasons for your attendance at Chapman’s property on Saturday, 7 May 2016.
94 Addressing his submissions on sentence, Mr Buchecker conceded that general deterrence was a relevant consideration in offending, which is characterised as domestic violence, and referred to DPP v Meyers[5] and “Sentencing in family violence cases”, referred to in paragraph 1(a) of his written submissions. He is correct.
[5] (2014) 44 VR 486
95 Mr Buchecker also conceded there was a need for specific deterrence when sentencing you, as you had a history of like offending. I also note, in that regard, Charge 1 on the Indictment occurred on 16 March 2016 then there was further offending by you again of a violent nature towards Ms Chapman approximately six to seven weeks later, on 7 May 2016. Having committed the offence on 16 March 2016, and then being made subject to a Family Violence Intervention Order you, nevertheless, offended in the way before me, and arguably an escalation of the violence.
96 Mr Buchecker also conceded that there needed to be denunciation of your conduct when sentencing, and a need for protection of members of the public. I note, in that regard, the earlier two breaches of intervention orders also occurred in the context of a relationship, as are the charges before me.
97 Turning to the offence of aggravated burglary, Mr Buchecker appropriately acknowledged that involved a personal confrontation and that the courts had referred to terms of imprisonment being ordered that ought be longer than sentences previously imposed where there were factors of aggravation beyond mere presence of the person at the time of entry by you. In that regard, he referred, also, to Hogarth v R[6] and current sentencing practices.
[6] [2012] VSCA 302
98 Mr Buchecker referred to the number of intervention orders that have been made during the relationship that supported an inference of conflict and volatility between both you and your various partners. I agree, however, the mere number of such orders does not inform the Court of the nature of any conflict that founded each order. As I discussed with Mr Buchecker, what is of concern to me are your prior court appearances for breaching the court orders.
99 Mr Buchecker referred to courses and programs that could be provided by the Office of Corrections, for offenders who commit domestic violence offences.
100 Mr Buchecker referred to your lack of contact with Andy since May 2016, and I can understand your distress in that regard. As I also discussed with Mr Buchecker, you no doubt will be worried about not seeing your son while you are in custody. As I discussed with Mr Buchecker, your involvement of Andy in this offending is particularly concerning and certainly, at that particular time, showed a lack of compassion towards him.
101 Mr Buchecker submitted the appropriate disposition would involve a base period of imprisonment of the approximately fourteen months you had served on remand as at the plea hearing, together with a Community Correction Order. I discussed this disposition with your counsel.
102 Ms Churchill, who appeared on behalf of the prosecution, submitted the prosecution submission was a head sentence with a non-parole period should be imposed. She urged yours was serious offending and referred me to Meyers, and the additional aggravating circumstances present in your offending. That there was an assault, and that you broke the window. She conceded there was no weapon used by you and that, of course, is correct. Ms Churchill also conceded that your offending was not in company of co-offenders, and that is correct.
103 Ms Churchill referred to your offending occurring later in the evening and that you knew that your partner was inside and, on balance, that another person was present, given there was a car out front. That Ms Chapman said she was frightened of you and that there were also Intervention Orders in existence.
104 Ms Churchill submitted you had limited insight, including some denials in relation to your offending, and that impacted upon your remorse and rehabilitation.
105 In Ms Churchill’s submission, there were no principles in Verdins applicable when sentencing you. I agree.
106 Ms Churchill submitted that the sentence urged upon me by Mr Buchecker of a combination disposition time served plus a community correction order would be outside the range of appropriate dispositions for your offending.
107 Turning to the offence of aggravated burglary, I refer to Meyers, in which the Court stated:
“We would wish to endorse the remarks in Filiz ([2014] VSCA 212) about the particular seriousness of offending involving former domestic partners. Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.
General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison.” [45] and [46]
108 The Court in Meyers also provided guidance regarding assessing the gravity of any particular instance of aggravated burglary and set out those considerations within the judgment (paragraphs 48 and 49).
109 I note, of course, the difference in factual circumstances in other cases from yours. It is always difficult comparing cases factually as facts vary enormously case to case, as do matters in mitigation and personal to an offender.
110 I am, of course, aware of decisions such as Boulton & Ors v R[7], and cases since then which have discussed both the rehabilitative and punitive aspects of Community Correction Orders. In Boulton the Court was urged to ‘rethink the conventional wisdom about whether prison is really the only option’.
[7](2014) 46 VR 308
111 Community Corrections Orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[8], Alam v The Queen[9], Marocchini v The Queen[10], Hutchison v The Queen[11] and Gul v The Queen[12], of course being mindful of the different offending in those cases from yours.
[8] [2015] VSCA 95
[9] [2015] VSCA 48
[10] [2015] VSCA 29
[11] [2015] VSCA 115
[12] [2016] VSCA 82
112 Further, I note Priest JA observed in Hutchison that:
“… it should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
113 Regarding your rehabilitation prospects, I have some concerns given your troubling criminal history for offending in the context of domestic relationships, as in your offending before me. The report of Mr Crewdson also raises concerns regarding your limited insight and rigid views. You are yet to address these matters. Without appropriate courses being successfully undertaken by you, I remain concerned regarding your rehabilitation prospects. Addressing these concerns via successful completion of courses in custody will improve your rehabilitation prospects. In sentencing you I must seek to maximise your rehabilitation prospects as they may be.
114 In my opinion, however, to accede to the disposition urged by Mr Buchecker would not adequately or appropriately reflect all relevant sentencing considerations, taking into account the gravity of your offending and all matters personal to you and in mitigation of sentence.
115 In sentencing you I take into account the principles of totality and proportionality.
116 I sentence you as follows.
117 On Charge 1, you are convicted and sentenced to 5 months’ imprisonment.
118 On Charge 2, you are convicted and sentenced to 4 years’ imprisonment.
119 On Charge 3, you are convicted and sentenced to 7 months’ imprisonment.
120 On Charge 4, you are convicted and sentenced to 4 months’ imprisonment.
121 On Charge 5, you are convicted and sentenced to 4 months’ imprisonment.
122 And on Charge 6, you are convicted and sentenced to 4 months’ imprisonment.
123 On the summary charge, you are convicted and sentenced to 3 months’ imprisonment.
124 Turning to orders for cumulation and concurrency, I order the following.
125 Charge 2 is the base sentence and I direct that 2 months of Charge 1 be served cumulatively on Charge 2.
126 I direct that 4 months of Charge 3 be served cumulatively upon Charge 2.
127 I direct that 2 months of Charge 4 be served cumulatively upon Charge 2.
128 I direct that 2 months of Charge 5 be served cumulatively upon Charge 2.
129 I direct that 2 months of Charge 6 be served cumulatively upon Charge 2.
130 I direct 1 month of the summary charge be served cumulatively upon Charge 2.
131 For clarity the orders for cumulation are upon each other and upon the base sentence.
132 That results in a total effective sentence of 5 years and 1 month’s imprisonment, and I direct you serve a period of 3 years before you are eligible of parole.
133 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 7 years and set a non-parole period of 5 years.
134 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 444 days in custody by way of pre-sentence detention (from 9 May 2016 up to and including 26 July 2017), and I declare that be entered into the records of the Court.
135 The prosecution also made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample, and I do that on the basis of your prior criminal history and the seriousness of this offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
136 Any other orders?
1
7
0