Director of Public Prosecutions v Picking
[2022] VCC 755
•24 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-00611/AP-22-0475
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE PICKING |
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JUDGE: | His Honour Judge Mullaly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2022 | |
DATE OF SENTENCE: | 24 May 2022 | |
CASE MAY BE CITED AS: | DPP v Picking | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 755 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Damaging Property --- Causing Injury Intentionally --- Common Assault --- False Imprisonment --- Attempting to Pervert the Course of Justice --- Plea of Guilty --- Lengthy Delay --- Combined Sentence
Cases Cited:Pasinis v The Queen [2014] VSCA 97 --- Kalala v The Queen [2017] VSCA 223 --- Filiz v The Queen [2014] VSCA 212 --- Worboyes v The Queen [2021] VSCA 169 --- Boulton v The Queen [2021] VSCA 169
Sentence: 565 days Imprisonment --- 18 Month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Offender | Mr A Dickenson | Giorgianni & Liang Lawyers |
| For the Crown | Mr T Crouch | Office of Public Prosecutions |
HIS HONOUR:
1 On 17 May 2022, I granted your application for a sentence indication. A trial was imminent. More particularly, I indicated that, should you plead guilty, I would impose a sentence of the time that you had been on remand and a Community Corrections Order. In response, you have today pleaded guilty to five charges on an indication, being intentionally damage property, intentionally cause injury, a common law assault, false imprisonment and attempt to pervert the course of justice. Dealing with the substance or what occurred, once again the courts are required to sentence a man charged with cowardly violence towards an ex-partner. You and the victim were in a relationship for about six years before your offending.
2 The offending itself is now four and half years ago. On 9 November 2017, you drove your car into or towards the victim's car at a supermarket car park. The damage to her car was nominal but the conduct was in my view intimidating. Two weeks later, commencing on 25 November 2017, you subjected the victim to a terrible ordeal. On 25 November itself, late in the evening you and the victim were in your car in a McDonald's car park in the northern suburbs. You became angry and interrogated the victim as to who she was seeing and accusing her of sleeping with others. This continued in another isolated area in Craigieburn.
3 Your anger became physical with assaults including a bite, punches and pulling hair. The victim thought if she got you home you may calm down. You were drug-affected and behaving very erratically. The victim went with you to your apartment and tried to calm things down by watching a movie. However, you continued your aggressive interrogation, punching her in the arm and later in the leg. Your intimidation and aggression and violence continued, now with added aspects that you would not let her go home. You threatened her with a knife. You hid her phone and keys. She was kept effectively in your room and subject to the degrading conduct of not being able to use the bathroom and toilet, but rather, had to use a bucket in your room.
4 Finally - and I do not wish this to be read as a brief ordeal by reason of me now moving to her escape - all that occurred over the 26th and 27 November was very serious criminal conduct - but finally, by the morning of 27 November, you fell asleep and the victim was able to escape in fear. She sought help and ultimately went to the police. Once the victim made a statement to police and you became aware of it, you sent numerous threatening messages, endeavouring to have her withdraw her allegations. I have read and today read in court the various text messages that you sent to her. They were threatening, frightening and clearly sent to intimidate. These texts amounted to the attempt to pervert the course of justice.
5 In November 2017, there was a statement of complaint made by the victim. Shortly after, you were arrested but declined to be interviewed by the police. However, the laying of charges and the progressing of this matter was very slow and delayed. That is regrettable. I will return to that issue shortly, but as I noted, this is yet another case of an accused using violence and intimidation towards an ex-partner. As I indicated in the sentence indication hearing, what cannot be ignored is the seriousness of these offences. These crimes are all too prevalent. You have a concerning history of violence. Too often the courts are or have been required to say that violence against women is a scourge in our community.
6 Our community is rightly appalled at such cowardly behaviour. What is expected is that offenders are sternly punished and sentences do send a clear message of deterrence to others. The appellate courts in Victoria have spoken about how these matters of domestic violence must be treated seriously. In Pasinis v The Queen in 2014,[1] the Court of Appeal in Victoria said historically, perpetrators or family violence were rarely prosecuted.[2] 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.
[1]Pasinis v The Queen [2014] VSCA 97.
[2]Pasinis v The Queen [2014] VSCA 97.
7 There has also been recognised that women who are killed by husbands, boyfriends or de facto partners 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 partners. In 2017, the Court of Appeal in Victoria undertook a comprehensive analysis of this topic in the matter of Kalala v The Queen.[3] Again, the emphasis was upon general deterrence and denunciation. In the judgment of the Court of Appeal in Kalala, it was said:
It is well recognised that the prevalence of a particular type of crime may be relevant in sentencing considerations. Trial courts of this state are imposing sentences for family violence with increasing frequency. This court has repeatedly emphasised the need to condemn family violence in line with community expectations.
[3]Kalala v The Queen [2017] VSCA 223.
8 In Filiz v The Queen,[4] the Court of Appeal again acknowledged, 'the shameful truth that family violence is the leading cause of illness, disability and death among Victorian women aged between 15 and 44'. Women are entitled to have friendships. They should be able to do so safely without the fear of infliction of violence from disgruntled, cowardly men. Women ought to be able to conduct whatever they wish to over their phones without a fear that some ex-partner or partner will grab that phone, interrogate it and look into their private affairs and then attack or subject them to an ordeal of violence.
[4]Filiz v The Queen [2014] VSCA 212.
9 The totality of your crimes was that you inflicted this awful ordeal on the victim. The false imprisonment was particularly serious. In addition to the already mentioned sentencing purposes of denunciation and general deterrence, there also needs to be an emphasis on deterrence to you and protection of the community. You have a poor criminal record involving crimes of violence as well as drug offences. You have served gaol terms imposed by the County Court as well as by the Magistrates Court, together with many community based orders and suspended sentences back over now 20 years. Now at the age of 38, you have been in trouble with the law since your teenage years. As it turns out there were other offences and prison terms imposed since this offending in
November 2017.
10 In fact the time that you have spent on remand - only 565 days of that is available to be declared as part of this sentence. As I understand it there has been a total of 854 days you have spent in custody undergoing sentences and on remand. I do not ignore the totality of this time because you have lost the significant opportunity that may have been available to you to have your sentences run concurrently. As I said in my reasons for giving the sentence indication, but for the array of weighty matters that take your case out of the ordinary, you would be facing years of imprisonment, significantly more than the 18 and a half months that you have now served as pre-sentence detention for these crimes.
11 The first of those matters is the extremely long delay in prosecuting this case. These crimes were committed in late 2017 and then the pervert the course of justice into early 2018. They were reported and should have been prosecuted and punished. They are now finalised in this court over four and a half years later in May 2022. The factor of the - in the latter portion of the lengthy delay - has been the impact of the pandemic. The decision of the Court of Appeal in Worboyes,[5] means that your plea of guilty must be given greater weight than in previous pre-pandemic times. This means the benefit to you must be publicly greater than it would have otherwise been.
[5]Worboyes v The Queen [2021] VSCA 169.
12 A plea of guilty while the criminal justice system is in crisis is a significant matter in mitigation. I have very much factored that into the sentence that I have already indicated - that is, the time served and a Community Corrections Order. Your long time in custody did prevent you from grieving the death of your mother with your family. Hopefully this will be a moment or an event that causes you to re-align your life. Your family remains important. You have a supportive sister who you can live with on your release and settle hopefully into a drug free working life. You can obtain work, that is, you have an opportunity to get solid work again with a family member upon your release.
13 It is hoped that the discipline of work and probably the enforced drug testing regimes on big construction sites where it is proposed you will work will operate to keep you away from drugs. You have been drug free of course during the long time that you have been in custody but it is critical to maintain this when released. You have faulted before but you must on this occasion sustain the period of being drug free so that you can settle into employment and a
pro-social lifestyle. I have considered what was put on your behalf by your counsel, including the older report from the psychologist, Mr Simmons. It was urged that the inevitable sentence of imprisonment be no more than your pre-sentence detention together with a Community Corrections Order.
14 The prosecution did not argue against a combined sentence. I had you assessed, and notwithstanding the many failed Community Corrections Orders in the past, you were found to be suitable a further Community Corrections Order. The sentencing principles articulated by the Court of Appeal in Boulton are highly relevant here.[6] You need to be punished but so too you need to be reclaimed or rehabilitated. Viewed objectively, your prospects of complete reform are shaky, that is, far from solid, but in my view, now is the time to seize a chance, even if it is small, that you will reform and not yet again fall back into wasteful drug use and crime.
[6]Boulton v The Queen [2014] VSCA 342.
15 An onerous Community Corrections Order is the best chance the community has to be protected in the sense that you will learn not to be drug-affected, jealous, erratic, violent and a cowardly man in the relationships that you may form. In that way the community is better off. You must learn the simple path of respect. If you do not you will end up before the courts again, and, if you reoffend and return back before me on a breach of the Community Corrections Order, the sentence I will impose will be very stern, involving years more gaol. I intend to impose an aggregate sentence for all these matters. I will conclude the sentence that I will impose in respect of the indication and then return to the matter of an appeal that is before the courts as well.
16 So as an aggregate sentence for the damaging property earlier in November, then the intentionally cause injury, common law assault, the most serious offence of false imprisonment and the attempt to pervert the course of justice, I sentence you to a term of imprisonment of 565 days together with, upon conviction, a Community Corrections Order to go for 18 months. You will be under programmed conditions there, being supervision, assessment and treatment for drug abuse and programs that may assist you in reducing your risk of reoffending. I will not impose a mental health requirement. There will be no community work.
17 Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and six months with a non-parole period of three years and three months. With respect to the appeal that has been lodged against the sentence of imprisonment imposed by a magistrate on 6 May 2022 for an offence that occurred in May 2018, being the sending of a text message in threatening terms to someone who was simply trying to get their car back, I set aside the sentence imposed by the magistrate. I do so although your record would tend to mean that sentence of imprisonments for threatening behaviour is inevitable.
18 There are circumstances here which favour you being released as soon as possible, so a sentence of imprisonment that would take you to the beginning of June in my view is not productive. In its place I impose a fine - with conviction - a fine of $400. You will get time to work that through - the payment of that - once you have secured some employment through Fines Victoria. Is there anything else required? Pre-sentence detention. I declare the sentence that I have imposed of 565 days. The pre-sentence detention has been reckoned at 565 days. I declare that period of time, 565 days, is part of the sentence I have just imposed. In fact it is every single day of the sentence I have just imposed. Therefore, I will enter that into the records of the court, making it perfectly clear to the prison authorities that the accused man has served every day of the sentence that I have just imposed. Anything further?
19 MR CROUCH: No, Your Honour.
20 HIS HONOUR: If there is nothing further, I thank counsel for their assistance. You can head away. Mr Dickenson, do you need to speak to your client on the - in this forum or - - -
21 MR DICKENSON: I would appreciate that opportunity, Your Honour, if that is available.
22 HIS HONOUR: I will ask everyone else to go offline and I will allow
Mr Dickenson - my staff will organise all of that. Thank you.
23 MR DICKENSON: Thank you, Your Honour.
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