Director of Public Prosecutions v Picone
[2014] VCC 690
•9 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG AND MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00540
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTINE PICONE |
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JUDGE: | Sexton | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 3-7,10-14,17-18, 21 February, 29 April 2014 | |
DATE OF SENTENCE: | 9 May 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 690 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Bourke for the trial and plea Ms A. Harrold for sentence | OPP |
| For the Accused | Mr F. Cameron | Tony Hannebery |
HER HONOUR:
1 Christine Picone, on 18 February 2014, a jury found you guilty of intentionally causing serious injury. This is a serious offence with a maximum sentence of 20 years’ imprisonment.
2 This crime arises out of an incident that took place on 30 October 2011 in the vicinity of a house in Breakwater, a suburb of Geelong. There, a man called Douglas Farquhar was severely assaulted by you, your former partner and another male.
3 You and your former partner, Jason Tregenza, have a son named Matthew, and a daughter named Emily. Mr Tregenza was also found guilty by the jury on this charge and he has already been sentenced by me to seven years’ imprisonment, with a minimum term of 5 years’ imprisonment. The other male involved pleaded guilty to recklessly causing serious injury and was dealt with in the Children’s Court.
4 The background to this offence is as follows:
5 In October 2011, Mr Farquhar was in an on and off relationship with a Ms Lincoln, with whom he had a daughter some 14-15 years earlier. That daughter, Chanelle, was friendly with your daughter, Emily, and spent time with your family, including on 30 October when you all had dinner together, following your son’s return from overseas.
6 You had been friends with Ms Lincoln for some years but you did not like Mr Farquhar. Leading up to 30 October, you posted material about Mr Farquhar on your Facebook page. He was not happy about this and a dispute arose between you.
7 On 30 October, you were walking Chanelle home to Ms Lincoln’s house with your daughter Emily, when you learned that Mr Farquhar was present at the house. You then telephoned the young male, and as the jury have found, made a plan for him to come to Ms Lincoln’s house to severely assault Mr Farquhar. Mr Tregenza was either with that male, or, and as the jury have found, joined the plan after hearing of it somehow, and he and that male arrived at Ms Lincoln’s house, but stayed out of sight.
8 You convinced Ms Lincoln to have Mr Farquhar come out to the driveway at the front of the house, and after he did, you asked him to come further down the driveway towards the road. Mr Tregenza and the young male suddenly appeared, and I am satisfied that you said “Get him Gonzo”, which was calling Mr Tregenza to act in accordance with the plan, using his nickname. Mr Tregenza and the young male, with you following, chased Mr Farquhar down the driveway, through the backyard of Ms Lincoln’s house, over the side fence, and cornered him between a garage and a gate in the next door property.
9 There the three of you, acting together, immediately began assaulting Mr Farquhar, by punching, kicking and stomping on his head, continuing when he fell to the ground, and using items found in the garage as weapons, including a crow bar, and a vacuum cleaner. These are all features of the offence which make it more serious.
10 Eventually, Mr Tregenza pulled you away from Mr Farquhar, causing the assault to end. You all then left the scene.
11 A neighbour rang 000, and after police attended, Mr Farquhar was taken to hospital by ambulance and placed into an induced coma. He received fractures on both sides of his nose, a fracture to the right eye socket, a fracture of the jawbone, a fracture of the bone just above the teeth, broken teeth, nerve damage to teeth and concussion. He also suffered multiple small abrasions to his arms and a large laceration down to the bone on his shin, with bruising and abrasions to both thighs.
12 Mr Farquhar provided a Victim Impact statement. He has suffered considerably as a result of the actions of the three of you. Apart from his physical injuries, from which he still suffers unbearable headaches, with the metal plates inserted into his face sometimes aching too, he has also suffered psychologically and emotionally. He feels his personality has changed, he has lost confidence and he has severe anxiety, with nightmares and panic attacks. Mr Farquhar has resumed his relationship with his wife, and he has a 5 year old son who he feels unable to take to and from school because of his anxiety and self consciousness. He says that he has moved interstate because of his fear, and that nothing bad that has happened to him in the past, including being in prison, compares to the assault. He thought he was going to die.
13 I take these effects on him very much into account in deciding the appropriate sentence.
14 The facts in this case are almost sickening. There was nothing threatening said or done by Mr Farquhar before the three of you launched the unprovoked attack.
15 By way of explanation for committing this serious offence, through your counsel you have asserted that you were the victim of violence at the hands of Mr Tregenza during your relationship. There is some support for this in the letter from your doctor (Exhibit P2), and from the admissions made on Mr Tregenza’s behalf during his plea, where he admitted that he had twice been convicted of charges involving violence or a threat of violence towards you. In the letters from family and friends (Exhibit P4) there are also some references to this aspect of your relationship with him.
16 It is put on your behalf that as a victim of family violence yourself, you were concerned about Mr Farquhar’s behaviour towards your friend Ms Lincoln, and that you wanted to do something to deter him from being with that family. It was submitted that you called in the young male and your ex-partner to help, choosing Mr Tregenza because you knew him to be capable of violence due to his actions towards you. It is said that you then had an outburst of anger when you saw Mr Farquhar, so that you joined in the assault once you arrived next door at the place where he was being beaten by the young male and Mr Tregenza.
17 The prosecutor disputes this explanation as to your reason for committing the offence. He submits that the feud between you and Mr Farquhar arose because of his reaction to what you had said about him on Facebook, not because of any concern of yours over his behaviour towards Ms Lincoln and her children. He submits the Facebook feud had escalated to the point where you decided to go to Ms Lincoln’s house and assault Mr Farquhar, and the prosecutor submits that the jury’s verdict shows that is exactly what you did, aided by your former partner and the young male.
18 The evidence at trial is that you intended the Facebook posts to make Ms Lincoln think twice about her relationship with Mr Farquhar. That intention may also have been motivated by a desire on your part not to have Ms Lincoln experience what you say you experienced at the hands of a domestic partner. In my view, there is little practical difference between these motivations. While you may have had more than one reason to dislike Mr Farquhar and these reasons may provide some explanation for your behaviour, I find your decision to have him assaulted, to arrange others to assist you with this, and to have him seriously injured as a result, was a calculated one. I do accept that the plan was made only a short time before it was put into effect, but it was still a plan thought out and put into action by you.
19 You have realised that you have a problem with managing your anger, and I accept that you did have an outburst of anger that led to your active participation in the assault once you saw Mr Farquhar under attack by your co-accused.
20 The problem managing your anger has got you into trouble in the past. Between 2003 and 2010, when you were aged between 29 and 36 years, you had four court appearances for 15 convictions, including seven for offences involving assaults, two for resisting police, two for damaging property, two for making a threat to kill and two of being drunk in a public place. I am told that your troubled relationship with Mr Tregenza was the reason behind two of the events. For one, you were drinking too much alcohol following the separation and got into an altercation with police, and the other had as the victim of your offending, the woman Mr Tregenza had been seeing whilst you thought he was trying to reconcile with you.
21 The seven assault-related convictions are of significant relevance to my task of sentencing you today.
22 Your counsel submits that you immediately understood the probable consequences of your actions in assaulting Mr Farquhar, and this led to your offer to plead guilty to the offence of recklessly causing serious injury, itself a serious offence carrying a maximum penalty of 15 years’ imprisonment. I accept that this offer, made months before the trial and followed up with a plea of guilty to that charge in front of the jury, shows an acceptance of responsibility for your offending to a substantial degree.
23 This acceptance of some responsibility also shows a level of remorse for your offending, but overall, I do not consider there has been a great deal of remorse shown by you for the impact of the offence on Mr Farquhar. You are sorry for the effect on your family, for encouraging the young male into committing a serious offence, particularly when I am told he had not been in trouble before, and perhaps even sorry for getting your ex-partner involved. But you do not seem at all sorry for the severity of the injuries to Mr Farquhar, and find it difficult to accept that your actions in organising this assault led to such serious injuries[1].
[1]Report of Jeffrey Cummins, Exhibit P1 at [25]
24 Turning to your background, I have been told something of your personal history. You will turn 40 in July, and were aged 37 at the time of the offence. You grew up in the Geelong area in a loving and caring family with an older sister and older brother. I note that your sister has had the care of Ms Lincoln’s daughter, Chanelle.
25 You suffered severe leg injuries in a car accident when you were aged about 17. You had to learn to walk again and did not return to school after your rehabilitation.
26 You began your relationship with Mr Tregenza at the same age, and this lasted until 2007. You were separated for about six months until you reconciled briefly, finally separating permanently in 2008.
27 You reported to Mr Jeffrey Cummins, psychologist, that Mr Tregenza was violent towards you and had a controlling attitude[2]. You told him that you had reported this to your doctor, received some psychological treatment for 12 sessions because of his abusive behaviour, attended at CASA three or four times because of his sexual abuse of you on occasions, had complained to the police a few times, and had taken out an Intervention Order[3]. As I said earlier, I accept the other material showing that you were a victim of family violence at the hands of Mr Tregenza.
[2]Exhibit P1 at [6]
[3]Ibid at [18]
28 Mr Cummins was of the opinion that this violence towards you had an impact on your mental wellbeing such that it contributed to the offence. Your counsel did not press for me to take it into account in that way[4], but submitted that it was relevant as part of the context in which the offence took place, as I outlined above, and also as part of your background.
[4]R v Verdins [2007] VSCA 102
29 The prosecutor did not seek to dispute that you had been the victim of family violence, although he submitted that it should not be considered as a cause of the offence against Mr Farquhar.
30 I am not satisfied on the material before me that there is a causal link between your treatment in the relationship with Mr Tregenza, and the offence you committed against Mr Farquhar. I am not satisfied that this resulted in you suffering from a chronic adjustment disorder with mixed anxiety and depressed mood with features of traumatisation, at the time of the offending[5], or that suffering from these illnesses led to your offending. However, I do accept that there has been an impact on your mental wellbeing as a result of the relationship with Mr Tregenza, and that is a matter that is relevant to the sentence that I am imposing today.
[5]Exhibit P1 at [34]
31 I note that in the report provided by Mr Cummins, you still do not admit that Mr Tregenza was the second male[6], just as Mr Tregenza maintained during his plea that he was not there, despite the jury’s verdict. I do not know if your position is out of a strange sense of loyalty, or because you still feel controlled by him, or for some other reason.
[6]Exhibit P1 at [20], [33]
32 After the separation from Mr Tregenza, you bought a house for you and the children, which they remain living in while you are in custody, with support from your parents and sister. Your savings are currently paying the mortgage. Matthew is now aged 19, and working, while Emily is aged 13 and attending school. I accept that being in prison will be harder for you, because of the separation from your children and your concern as to how they will get by, particularly if the house has to be sold later on. This is a sad example of the ripple effect on a family caused by the criminal acts of members of that family.
33 You have strong family support, and they continue to support you, and your children, while you are in prison. This is vital for your rehabilitation.
34 As I earlier mentioned, I have received a number of references from friends and family[7] by whom you are highly regarded. I take into account that you are seen by them as an excellent mother, although clearly you have not always set a good example as shown by your criminal record. I accept that you have, until now, provided a stable home life for your children, managing to do so even during the difficult relationship with Mr Tregenza, and since your separation.
[7]Exhibit P4
35 After your separation, you returned to the paid workforce for the first time in 2008. You worked initially as a cleaner, and then obtained work in a laundry. You worked there full time for almost two years before the trial. I received a very good reference from your manager[8].
[8]Part of Exhibit P4.
36 You went into custody for the first time after the verdict. Not surprisingly, you have found this transition difficult, but you have nevertheless spent your time wisely, undertaking a number of programs to help you adjust, and working in the laundry of your unit despite being a remand prisoner, a situation in which you are not required to work. I received a reference from a Senior Prison Officer[9], indicating that you are considered a good worker.
[9]Part of Exhibit P4
37 The report from Mr Cummins contains a lot of material that I do not accept concerning the facts of the offending, as it is inconsistent with the jury’s verdict. However, I do accept his opinion about your current situation: that you are having difficulties adjusting to the realisation of a prison sentence as an outcome of your actions, and that this adjustment may be harder for you because you were already having difficulty adjusting to the fallout from your relationship with Mr Tregenza. You have been on the antidepressant Zoloft for five years, and the dose has been increased since you went into custody. I take this situation into account in deciding the appropriate sentence.
38 Your family support, and your willingness to work hard, increase your prospects of rehabilitation. Your counsel submitted that you have genuine prospects as your self esteem is likely to rise now that you are separated from Mr Tregenza and will be for some time by virtue of each of you being in prison. However, in my view, unless you learn to control your anger, you will compromise your rehabilitation and put your family unit at risk for the future. In other words, if you continue to give way to your anger, you will commit violent offences again, and depending on the seriousness of those offences, may find yourself in prison again.
39 It was submitted by your counsel that the risk of you re-offending was low. On the basis of my findings, I find you to be a medium risk of committing violent offences in future. If you were to successfully learn to control your anger, your risk of re-offending would be low. I encourage you to undertake more of the sorts of programs you have undertaken already in prison, and I strongly recommend that you complete an anger management program.
40 As well as those matters personal to you to which I have referred, I must also consider the principle of deterrence. That means, by my sentence of you, I must seek to deter other people from engaging in serious violence. Because of your criminal record, I find that my sentence must also seek to deter you from re-offending. I do accept that the very fact of going into prison for the first time at the age of almost 40 may of itself make you think twice before committing another violent offence and running the risk of separating yourself from your children again.
41 Application has been made for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offence, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not objected, if you change your mind, I must inform you that the police may use reasonable force to enable such a procedure to take place.
42 As the young male was dealt with in the Children’s Court on a different charge to which he pleaded guilty, under a different sentencing regime and with no criminal record, his sentence can have no bearing on yours.
43 While it has been conceded on your behalf that you were the instigator of the offending, I sentence you and have sentenced Mr Tregenza on the basis that you are equally responsible for the commission of the crime, without attributing any particular role beyond what I have already outlined.
44 Your counsel submitted that your sentence should be lower than the maximum and minimum sentences imposed on Mr Tregenza, on the basis that there were a number of differences between you. He submitted that you have shown remorse and acceptance of responsibility, unlike Mr Tregenza; that you are suffering from depression and a form of adjustment disorder, unlike Mr Tregenza; that you suffered from family violence at the hands of Mr Tregenza; that this violence led to your current psychological problems; and that unlike Mr Tregenza, you went immediately into custody after the verdict, prepared to begin your sentence from that time.
45 The prosecutor submitted that there were points of difference between you and Mr Tregenza but submitted they were not all in your favour. While he conceded that you were not to be treated differently for any particular actions during the assault, he pointed to the fact that you made the arrangement for your co-accused to carry out the assault, which you then joined in; that you have more convictions for violence on your criminal record than Mr Tregenza; and that you had a motivation or a context for committing the offence, whereas I found Mr Tregenza’s decision to get involved in an assault on a man he did not even know was a cold-blooded one[10].
[10]DPP v Tregenza, unreported sentence, County Court 7 March 2014
46 I have carefully considered all of these matters, and I have decided that on balance, you should receive a sentence slightly lower than that imposed on Mr Tregenza because of the matters pointed out by your counsel. While you were the instigator of this serious offence, and have more prior convictions, those factors are to be weighed against the facts that you have accepted responsibility and shown a degree of remorse; you have psychological problems, mostly arising from your relationship with Mr Tregenza; and your time in prison will be harder because of your depression, and because of your separation from the children and concern for their welfare and loss of stability.
47 On the charge of intentionally causing serious injury, you are convicted and sentenced to 6 years six months’ imprisonment.
48 I direct that you serve a minimum term of 4 years 6 months before becoming eligible for parole.
49 I declare that you have served 81 days in pre-sentence detention including today and these are to be deducted administratively from your sentence.
50 I have signed the forensic sample order and the disposal order.
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