Director of Public Prosecutions v Peck
[2022] VCC 1431
•26 August 2022
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02384
CR-22-00856
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROWAN DAVID PECK |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 August 2022 | |
CASE MAY BE CITED AS: | DPP v Peck | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1431 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Goodenough | Office of Public Prosecutions |
| For the Accused | Mr Barker | Giorgianni & Liang Lawyers |
HER HONOUR:
1 Rowan David Peck, you have pleaded guilty before me to one charge of intentionally causing injury, one charge of damaging property and one charge of attempting to pervert the course of justice. You have also pleaded guilty to the summary charges of possessing a controlled weapon without lawful excuse and to committing an indictable offence whilst on bail. You have also admitted your prior criminal history.
2
The facts underlying your offending are as follows: at about 7 pm on
9 October 2020 you went to a house at Ocean Grove in Warrnambool. Present at the house was one Justine Sharpe with whom you were in a relationship. Another person present, Jacob Smith, told you he was going to see the complainant in this matter, Jay Bailey, as he thought Mr Bailey had stolen money from his grandmother and you said you would go too. Mr Smith said that Mr Bailey did not present any physical threat to him and there was no need for violence. You, however, borrowed a black jumper with a hood and a white logo on the front chest area. You had never met Mr Bailey before.
3 At about 8.20 pm Mr Bailey was sitting inside his room at a motel in Warrnambool when Mr Smith arrived with you. At that stage you were wearing a hood over your head and a black face mask covering the bottom half of your face. Mr Bailey had never seen you before. There was a discussion between Mr Smith and Mr Bailey where Mr Smith made the allegation which Mr Smith denied. Whilst the two of them were talking you punched Mr Bailey to the right side of his face with significant force, causing a great deal of pain.
4 Mr Bailey saw you playing with your hands, heard a noise. Then he got up and turned around to leave and while doing so you stabbed him in the back with a knife. Mr Bailey felt a burning sensation near his right side rib area and then he saw that you had a boning knife about 20 centimetres long. Your actions in punching and stabbing Mr Bailey underlie Charge 1 on the indictment and relate also to the summary charge of possessing a controlled weapon. You told Mr Bailey if he said anything to police you would come back and finish him.
5
You asked Mr Bailey for his phone, drugs, and wallet, but he refused and nothing was given over. You and Mr Smith then left and whilst leaving you said, 'Oh fuck, man, I fucking stabbed him'. Mr Bailey's neighbour called Triple 0, police and ambulance attended and Mr Bailey was taken to hospital. At hospital
Mr Bailey underwent surgery for damage to his liver.
6 Dr Angela Williams of the Victorian Institute of Forensic Medicine noted the following injuries from Mr Bailey's medical record: firstly, a full centimetre full thickness stab wound to his right upper side abdomen below the rib margin which penetrated Mr Bailey's liver. Mr Bailey underwent keyhole surgery the next morning to wash out blood in his abdominal cavity and to repair the wound. Secondly, he suffered a bruise to the right scalp which was where you punched him. At the time of the offending you were on bail for domestic violence matters for which you ultimately received a four-month sentence. This relates to the summary charge of committing an indictable offence whilst on bail.
7 You were arrested on 12 October 2020, conducted a no-comment record of interview and a search of the premises where you were staying revealed knives and a black face mask and clothing, which was the same as clothing captured on CCTV images at the motel where the stabbing of Mr Bailey took place. While being taken to a police cell you hit your head against the dry wall in an interview room, causing damage to that wall, and those actions underlie Charge 2 on the indictment, damaging property.
8
You were in custody from your arrest on 12 October. Between 21 October 2020 and 16 August 2021 you had a number of telephone conversations which were recorded with your then partner, Justine Sharpe, and another woman named
Grace Bones. Those conversations centred around trying to arrange for both
Mr Bailey, and his friend who witnessed the attack, to withdraw their complaints against you. Ultimately, Mr Bailey was warned personally by Ms Sharpe against appearing at court, and on another occasion he was visited by unknown people whom he avoided, but who were looking for him, presumably sent by you. Those actions underlie Charge 3 on the indictment, attempting to pervert the course of justice.
9
The maximum penalty for intentionally causing injury is 10 years' imprisonment. The maximum penalty for damaging property is 10 years' imprisonment. The
maximum penalty for possession of a controlled weapon is 120 penalty units or one year's imprisonment. The maximum penalty for committing an indictable offence on bail is 30 penalty units or three months' imprisonment. And the maximum penalty for attempting to pervert the course of justice is 25 years' imprisonment.
10
A victim impact statement was compiled and tendered to the court. Essentially in that victim impact statement which was compiled in June of this
year, Mr Bailey reported still experiencing nightmares and flashbacks about the incident. He has had to seek mental health assistance for ongoing problems. At the time of this attack he was staying at the motel because he was homeless. He was too scared to go back to Warrnambool. He had to move to another country area, where he got work in a dairy farm, which he had to give up because of ongoing pain from the injury.
11 He continues to suffer pain. He has not been able to work since. He continues to suffer stomach cramps and other problems which are possibly linked to the stabbing. He is currently undergoing tests for that. He has undertaken a pain management course. He is also fearful of retaliation by you on your release from prison.
12
This matter proceeded by way of a contested committal which was heard on
8 November 2021. Ultimately the matter was settled following a sentence indication hearing on 17 June 2022. I should add that you declined to be interviewed by police in relation to the charge of attempting to pervert the course of justice.
13 I now turn to your personal circumstances. You are now 37 years of age. You were one of three children born to your parents. They separated when you were very young, two or three, but you understand that your father was either alcohol or drug-affected and was physically and emotionally abusive to your family. After your father moved out your uncle moved in. He was a heroin addict and you were exposed to violence, both in seeing violence inflicted on your mother and on yourself.
14
Your mother then partnered with your stepfather and remains in a relationship with him. That has been a difficult relationship over the years. You felt very rejected by your stepfather. You stated in a report to a psychologist from Forensicare (a 2016 report, which was prepared for another matter, was tendered on the plea) Dr Simon Vincenzi, that you were told constantly by your stepfather that you caused problems between himself and your mother, that
'he should leave' and that ultimately you were physically forced by him to leave when you were 19.
15 However, it appears that, particularly during this period of custody, relations between your stepfather in particular and you have improved and also your mother. Both your stepfather and mother have joined a religious congregation, are practising Christians, do not use drugs or alcohol, and are prepared to be supportive to you. Your mother, I note, appeared both at the sentence indication hearing and on the plea today. I also received a reference from your stepfather, Mr Malcolm May, dated 21 August 2022. He runs a fishing charter business. He stated that he is prepared to have you live with himself and your mother on your release from custody and he is prepared to offer you a job as a deckhand. Again, I want to repeat the last paragraph and I want you to listen to this, Mr Peck, because it is realistic and it is loving at the same time. He said:
It would be quite easy to say no to Rowan during the past. However, Anita and I see so much promise in Rowan and he could achieve great things, which he has shown glimpses to us when he goes down the right path, and he can be a wonderful father, brother and son. But the truth of the matter is if he doesn't get it right this time I don't think he ever will and will become a career criminal, drug addict and spending the rest of his life in gaol a very lonely man.
16 In fact, it was phrased well by your counsel, Mr Barker, as realistic optimism about you. I am satisfied that you are going to enjoy good support and appropriate support once you are released from custody.
17 Returning to your history: you left school during Year 8. You were asked to leave school, without being absolutely expelled, because you performed as a class clown, were often truant and you often stole your parents' drugs. Both your parents were drug users before they themselves reformed. You on occasion brought drugs to school.
18
To your credit you have gone on in difficult circumstances to compile a reasonable work history. You left school, you studied a plumbing
pre-apprenticeship at Holmesglen TAFE. You finished the course in six months despite needing alternative testing due to poor literacy. From about 16 you worked as a glazier. You completed two years of an apprenticeship before breaking your leg and this stopped you from working. You then found work as a roof tiler and worked in this field for about 10 years, with a two‑year gap when you were sentenced to gaol in 2008.
19
You transferred to Queensland to get away from drug using friends and were successful in a job in sales there until your employers found about your
criminal history and you were laid off. You then moved back to Victoria and have worked in abattoirs and other trade jobs since. The last time you were in the community you engaged a job network agency which helped you enrol in a
rural ops course at TAFE, which you did for nine months, where you obtained a number of excavator and machinery certifications.
20
You started using drugs when you were about 14. You had seen drug use all around you when you were growing up. Ice, cannabis, all sorts of drugs have been a continuous problem for you in those years. You have gone on to offend on a fairly regular basis and to compile a fairly long and serious prior
criminal history going back to 2003. You have been dealt with by courts for intentionally causing injury, wilfully damaging property, being accessory to a serious indictable offence. In 2008 you were sentenced to 27 months' imprisonment on two charges of intentionally causing serious injury and of
aggravated burglary and common law assault.
21 In 2009 you were gaoled for theft of a motor vehicle, obtaining property by deception, and driving with a drug alcohol level above .05. In 2012 again there were driving charges, theft of a motor vehicle, dealing with property being the proceeds of crime, again for which you were gaoled. In 2013 you were gaoled for possessing methamphetamine. In 2016 you received a 16-month sentence for an attempted armed robbery and intentionally causing injury.
22 In December of 2016 you were dealt with in the Frankston Magistrates' Court on a really appalling consolidation of charges: making threats to kill, obtaining property by deception, receiving stolen goods, using ice, resisting emergency workers on duty, breaching an alcohol interlock condition, theft from motor vehicle, failing to stop motor vehicle on police request, possessing amphetamine, trafficking methylamphetamine, possessing a drug of dependence, dealing with property suspected of being the proceeds of crime, possessing a controlled weapon without excuse, other driving offences, for which you were placed on a community corrections order.
23 Again in the Melbourne County Court you were dealt with and received a six‑month sentence for attempting to pervert the course of justice. On that same day the County Court also dealt with you for contravening a community corrections order, that being the order that was imposed in December 2016. Only a month later you were before the Frankston Magistrates' Court on another consolidation of charges comprising contravention of a community corrections order and, again, you were sentenced to six months' imprisonment. In March 2019 you received two months' imprisonment for dealing with property suspected of being the proceeds of crime and you also received a sentence in August that year for wilfully damaging property.
24 The situation is that this time whilst in custody you have undertaken what I regard as a very serious attempt at reform. You have undertaken a large number of drug and alcohol courses via Caraniche. You undertook an alcohol and drugs and depression course, a six-hour course, and a 24-hour managing ice addiction program. You have certificates for undertaking a number of other programs such as Taking Stock. You have undertaken courses via the
Box Hill Institute in food preparation, kitchen operation, vocational pathway. You also undertook a 44-hour drug and alcohol program run by Caraniche.
25 I have been presented with a certificate showing that on 17 occasions as a result of random urinalysis you have proved negative for drug use which is a big effort - if I can put it in that colloquial way - because it is - as the courts well know it is far too easy for drugs to be obtained by a person in custody. You have not done so. You have also set up a strong connection with Narcotics Anonymous to the point that I received for the first time in my experience ever a reference from Narcotics Anonymous to the effect that you have been regularly attending Narcotics Anonymous recovery meetings every Tuesday and Sunday. Mr David O'Halloran, who is the meeting coordinator, stated:
Rowan has shown a genuine willingness to participate in the group and has also acknowledged that drug addiction is at the core of his offending and numerous incarcerations. He has expressed to me his desire to stay drug-free and I believe his commitment to recovery is genuine. I have agreed to sponsor Rowan and we are working the
12 steps together.
26 Mr O'Halloran asked that I make your attendance at Narcotics Anonymous a condition of any sentence that I might make. I am not going to be able to do that, but I am satisfied that your commitment is such that you will continue to undertake that program. In addition, as I understand it - whilst not being formally appointed as peer educator, I understand that you attend a number of programs run by Narcotics Anonymous and Caraniche to support other newer prisoners who are undertaking those programs, to open up about your own difficulties and to encourage and assist new participants to undertake the path that you have.
27 Your counsel has conceded that in the circumstances only a term of imprisonment is appropriate in your case. However, in sentencing you I do take into account, firstly, the very difficult conditions under which you grew up pursuant to the principles enunciated by the High Court in Bugmy's case, whereby moral culpability can be said to be less for persons who have been exposed to criminal behaviour and abusive behaviour from an early age. In other words, it is said by the court that persons who grow up in such an environment can find it much harder to reform and to learn the lessons of life, because that sort of behaviour and that sort of treatment is normalised, and then goes on to lessen that person's capacity to make a decision to reform.
28
I take into account what I regard as your much improved rehabilitative prospects. I note also that you have two children. You have a 13-year old son who was born to a relationship with a woman with whom you have been in a relationship on and off for over 20 years, and I understand that you are now in contact and are considering recommencing this relationship. You also have an
eight-year old son. Notably, whilst you were with that son's mother, the two of you moved to Warrnambool and you managed to stay off drugs for about
two years in 2016 and 2017. That relationship broke up while you were working in Western Australia, because in the meantime that partner re‑partnered with someone else and you relapsed into heavy drug use.
29
I am satisfied that you are determined to improve your life. I am satisfied because of the efforts you have made whilst in custody. which are attested to by those persons who have conducted the programs you have been subject to. I am also satisfied that your prospects of rehabilitation are much improved because of the reconciliation with your mother and stepfather, the fact that they are offering you accommodation and employment on your release. I am also, as I have said, impressed by your efforts particularly in relation to
Narcotics Anonymous and, therefore, in my view, you present far less of a danger to the community than you have previously.
30 Of course, as I have said, the offending is serious. It was unprovoked violence, but in all the circumstances it is my view that you should be given this opportunity to restart your life once you leave custody and, therefore, the sentence I impose will be significantly less than it would have been otherwise. I therefore sentence you as follows:
·
On the charge of intentionally causing injury you are sentenced to
18 months' imprisonment.
· On the charge of damaging property you are sentenced to one month's imprisonment.
· On the charge of attempting to pervert the course of justice you are sentenced to two years' imprisonment.
· On the summary charge of possessing a controlled weapon you are sentenced to one month's imprisonment.
· On the charge of committing an indictable offence on bail you are sentenced to one month's imprisonment.
31
The base sentence will be the charge of attempting to pervert the course of justice two years. I order that 12 months of the sentence imposed on Charge 1 on the indictment be served cumulatively with the sentence imposed on
Charge 3, giving a total effective sentence of three years. I order that you serve
20 months of that sentence before becoming eligible for parole, and I declare that 682 days of that sentence have already been served by way of pre‑sentence detention.
32
MR GOODENOUGH: Your Honour, I apologise for interrupting. I believe it is
650 days. There was a sentence I understand. If Your Honour sees
paragraph 33.
33 HER HONOUR: You agree with that, Mr Barker?
34 MR BARKER: Yes, I do, Your Honour.
35 HER HONOUR: Yes. 650 days.
36 Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five and a half years and I would have ordered that you serve a minimum term of three and a half years.
37 MR BARKER: If Your Honour pleases.
38 HER HONOUR: I will sign in the terms the disposal order. All right.
39 MR BARKER: As Your Honour pleases.
40 HER HONOUR: Is there anything else I need to attend to?
41 MR BARKER: No, Your Honour.
42 MR GOODENOUGH: Your Honour, I may have missed the - each of the periods of one month's imprisonment were they concurrent?
43 HER HONOUR: They are concurrent.
44 MR GOODENOUGH: Thank you, Your Honour.
45 HER HONOUR: Yes, that is why I have not added them.
46 MR GOODENOUGH: Yes, Your Honour.
47 HER HONOUR: All right. In my view they essentially arise out of the one incident and that is why I have dealt with them in that way. All right.
48 MR GOODENOUGH: If it please the court.
49 MR BARKER: As Your Honour pleases.
50 OFFENDER: Excuse me, Your Honour.
51 HER HONOUR: Yes.
52 OFFENDER: Did you get my current psych report?
53 MR BARKER: I can go through all these things with Mr Pick. I was going to ask Your Honour if I could have five minutes with him - - -
54 HER HONOUR: Yes, I'm quite happy for that to happen. I do have another matter that - - -
55 MR BARKER: - - - and explain to him all the material that we are - - -
56 HER HONOUR: I do have another matter that I have to attend to fairly quickly, but I will say that is - - -
57 MR BARKER: Even if I just have one minute, Your Honour. I will just make sure he understands that - - -
58
HER HONOUR: Understand that I indicated four with a two or three with an
18-months. All right?
59 MR BARKER: Yes.
60 HER HONOUR: So that is entirely within the parameters of this - - -
61 MR BARKER: I quoted those in my - I think I quoted those in my submissions, yes.
62 HER HONOUR: You did. You did indeed. Thank you very much.
63 MR BARKER: Thank you, Your Honour.
64 HER HONOUR: I thank counsel very much for their assistance in this matter. All right. I will leave now, but I will - the link can stay open till 11, but after that I have got counsel waiting. All right?
65 MR BARKER: I will be off well before that, Your Honour. Thank you very much.
66 HER HONOUR: Thank you, Mr Barker. Thank you.
67 OFFENDER: Thank you.
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