Director of Public Prosecutions v Pearce

[2014] VCC 1781

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00845

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUSAN PEARCE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 October 2014
CASE MAY BE CITED AS:	DPP v Pearce
MEDIUM NEUTRAL CITATION:	[2014] VCC 1781

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr A. Kennedy
For the Director of Public Prosecutions	Mr J. Ayres

1Susan Pearce, you have pleaded guilty to one charge of intentionally causing injury.  That crime carries a maximum penalty of 10 years' imprisonment.  You are now 57 years of age.  You pleaded guilty to a settled indictment and you must receive the benefit of that.  There is clearly a significant utilitarian benefit involved in this particular plea of guilty.  Insofar as remorse is concerned, that in the sentencing conversation in talking to the elders you did not particularly express remorse and I am told by the Crown that the complainant in the matter is aware of that and wished to point it out.  Insofar as that is concerned I do note, however, that I was assured by Ms Stewart who is the Koori Court manager that in terms of private conversations you had certainly expressed remorse to her.  So in any event you get the benefit of the doubt in relation to that.

2You have a very long history of drinking and are one of the stolen generation.  Insofar as prior history is concerned, it is extraordinarily limited.  Often with people in your circumstances we find that there is a long, extended criminal history of all sorts of offending including drunken behaviour and dishonesty.  Yours has only commenced in very recent times and the matters are not of real significance.  That gives me confidence in your prospects for rehabilitation. 

3Firstly, pursuant to Section 464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that if you refuse to provide a sample for police they may use reasonable force to take it from you.  It is saliva only, there are no needles and Mr Kennedy will explain to you how you go about that. 

4The circumstances of the offending are contained in a Crown opening.  There is a co-accused, a Mr Jamie Moore, who I will be sentencing later on this morning but in the circumstances there is virtually no consideration as to parity between the two of you as he has a very extensive criminal history and has been incarcerated on previous occasions. 

5At the time of this offending you and the victim, Ms Wright, were in a relationship.  On 30 October 2013 you and Ms Wright had spent some time together at her home drinking alcohol and smoking.  After you left, Ms Wright decided to follow you to the home of one Samantha Payne in Northcote.  When she arrived in the late afternoon or early evening both you and Mr Moore were at Ms Payne's home.  A verbal argument started, the Crown summary says instigated by you when you said to Mr Moore words to the effect of that Darlene Wright had been going around telling people that Jamie Moore "had aids."  This angered Mr Moore and the comment sparked an argument and shortly after that you, Ms Pearce and Mr Moore, started to assault Ms Wright.  You punched her in the nose, causing blood to flow and a later hospital examination confirmed a fracture. 

6The Crown opening was amended slightly but in any event the assault continued.  The victim was struck several times to the face and her head was pushed into the wall of the apartment.  Mr Moore also grabbed the complainant around the throat, lifting her off the ground until she lost consciousness.  Prior to her losing consciousness while he was squeezing her throat, Ms Wright heard Mr Moore say "I'm going to kill you, you cunt."  Mr Moore threatened the complainant, saying that she was not leaving alive and she would not leave the house unless she was in a body bag, she was "going to die tonight" or words to that effect.  You are not charged with the threats to kill, they are Mr Moore's responsibility and I simply include them here as, in effect, circumstances surrounding the assault that took place. 

7Insofar as who struck who at what point in time during all this, I will simply say that you are aiding and abetting each other in any event or acting in concert so it does not make a lot of difference. 

8Ms Wright was found injured in the gutter by a witness a short distance from where she had been assaulted.  She was observed to have a large egg on her forehead and noted that she was also bleeding from the mouth.  As a result of this assault Ms Wright says that she received a broken nose, her front tooth was knocked out, pain to the left side of her jaw, bruising to the face and neck, black eye, sprained left wrist, bruising to her body and legs and loss of consciousness.  That all gives rise obviously to the charge of intentionally causing injury. 

9I have before me the victim impact statement of Ms Wright which prescribes eloquently the trauma and ongoing psychological difficulties that this assault has caused.  It is clearly not a matter to be regarded as trivial, as I indicated very clearly the other day during the course of the plea. 

10In normal circumstances, offending such as this calls for the application of general and specific deterrence, denunciation and appropriate punishment.  You participated in Koori Court and were able to sit at the table and discuss with the elders your personal circumstances and the circumstances surrounding the offending.  You were able to describe what you hoped for and intend for in the future and in my view you participated as openly as you could in circumstances which must have been somewhat humiliating for you.  Koori Court does not automatically give you a lesser sentence but it certainly enables a sentencing judge to get a better perception of the person who is about to be sentenced.  In the end it was virtually by agreement I think that a Community Corrections Order was the appropriate disposition for someone of your age with your history with virtually no priors.  Active incarceration in my view would be out of the question.  I was not attracted to the idea of an adjourned undertaking because I thought that that did not reflect the seriousness of what you and Mr Moore perpetrated upon Ms Wright.  A Community Corrections Order with conviction is a serious punishment and is subject to breach and subject to incarceration if it were breached.  A conviction in itself in your particular situation is of course a punishment in itself.  As to why this matter is to be the subject of a Community Corrections Order, I refer to matters personal to you and as everybody was able to listen to the sentencing conversation I do not think I need to go into a great deal of detail. 

11I have before me two reports, one from Dr Mark Robinson and one from Mr Martin Howell.  The report from Dr Robinson refers to your dealings with the Aboriginal Health Service.  You, as is pointed out in that report, have three children, yourself experienced domestic violence and witnessed sexual assaults on your youngest child.  You had a highly disrupted upbringing and you and your siblings had been removed from your parents at a very young age.  All the siblings were separated and you have neither seen them nor your parents since.  You report that you were abused at the age of 9.  Your adult relationships have virtually all involved some form of domestic violence.  I am not going to sit here and have the temerity to talk about the effects of the stolen generation upon Aboriginal people.  The consequences are dreadful and in my view you are a perfect example of being disconnected and having the sense of desperation that that almost always seems to cause.

12You are actually diagnosed as having a major depressive disorder and anxiety and post-traumatic stress disorder.  I think in your particular situation each of those gives to the principles contained in Verdins.  You were clearly heavily intoxicated at the time of this offending.  That certainly does not excuse it, it simply places it into what might be perhaps unfairly described as a lifestyle circumstance.  You have had alcohol binge use with a pattern of severe alcoholic hallucinosis.  Your post-traumatic stress disorder symptoms relate to past abuse history as a child and adult and witnessing your own son's abuse.  The report tells me that your psychosis occurs in the form of a constant commentary from unfamiliar males and females and is effectively abusive.  You also, as is described, experience visual hallucinations of men in your lounge room with needles sticking out of their arms.  Those symptoms you are now getting some insight into but they generally frustrate you. 

13You have been on various medications.  You are seeing a psychiatrist on a regular basis and perhaps for the first time in your life these matters are being looked at seriously.  The Aboriginal Health Service is providing you with every opportunity that it can and it is clear from their report that you are doing your best in very difficult circumstances to comply with all their requests.  As I say, you have quite a multitude of complaints.  You have described yourself as being all over the place, unable to think and highly anxious.  Your drinking would appear to have indeed increased since this offending occurred.  You express a desire to stop that drinking once this matter is concluded.  I think you are aware of the circumstances involving continued drinking.  So far you have stayed in pretty good nick.  But that will not last and you know that.  You are in a circumstance where, with your 13 year old child, you now as I understand it have contact with him on a weekly basis and he is, from now on least, going to be able to stay over for one day a month.  You have a two bedroom house in West Heidelberg.  You have stable accommodation and, if you can regulate your drinking and the aggression that that can cause in you, your prospects for rehabilitation should be good.  You are obviously an Aboriginal woman, you are originally from Queensland and you do not have the same connections in this State as others might have.  I understand that that can cause difficulty for you, particularly in the situation where your victim is well known within the local community.  But it is a matter for you to get yourself sorted out and to make use of what is going to be clearly offered to you over the next period of time.  The report points out, and again I am just saying this so you just hear it one more time, that the symptoms of the post-traumatic stress disorder and the depression was perpetuated by the drinking and it just causes a vicious circle which you have somehow got to get yourself out of for the sake of both yourself and your child. 

14In all those circumstances, and bearing in mind that you are now supported by Connecting Home and I have a report from them today which essentially confirms far more knowledgably than I can the consequences of being a member of the stolen generation and what is being done for you in your particular circumstances, I think that the Community Corrections Order is very much the appropriate disposition.  As I said, it will be with conviction and I do not want it to be construed as regarding this offending as in any way trivial. 

15The only condition I will be putting on that Community Corrections Order is the one of mental health and the one which perhaps should be incorporated within that of keeping in contact with and dealing with the connecting Baraka Home Program.  So that will be the sentence, if you will agree to sign it. 

16The only other condition will be the judicial monitoring.  The first day, that will be 17 December.  What happens with the judicial monitoring, Sue, is that you come back to court on 17 December.  Whether the elders are here or not is always a bit debatable because you do not know whether they are available or not.  So it is just to have a yarn and just see how it is all panning out, all right?  What we have found is, especially with Kooris, that coming for that is a good opportunity.  It gives you a short term goal that you come back then and things are going well and it is very encouraging for everybody, particularly the elders if they can be here if you are doing well and things are in place.  So that is what that for, it is not a punishment, it is just to give you sort of a short term goal that you can work towards. 

17MR AYRES:  12 months, Your Honour, would be the length of
the ‑ ‑ ‑ ?

18HIS HONOUR:  Yes.  Sorry, I didn’t say, thanks.

19MR AYRES:  I think it was inclusive though.   

20HIS HONOUR:  Yes, I'm sorry, I didn’t - all right, that order is made.  Just remember, Sue, if you breach it you get brought back and you have to get re-sentenced and offending will breach it.  So if you get a punch-up or something like that and you get brought back sentences go up, not down.  So just remember that, if you breach it you have got a real problem on your hands, all right?  If things are not going well you have got Mr Hoare, you have got people you can talk to, you have got people at Corrections you can talk to.  Do not let stuff get out of hand or get down on you, all right?  If things are going wrong, talk to somebody.  Because I want to see you back on 17 December but I want it to be a happy day.

21PRISONER:  It will be happy.

22HIS HONOUR:  Not a sad one, all right?

23PRISONER:  All right.

24HIS HONOUR:  Very well, thanks for that. 

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