Director of Public Prosecutions v Pitt

[2019] VCC 783

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

AT MILDURA
CRIMINAL JURISDICTION

CR 19-00537

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN PITT

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	28 May 2019
DATE OF SENTENCE:	28 May 2019
CASE MAY BE CITED AS:	DPP v Pitt
MEDIUM NEUTRAL CITATION:	[2019] VCC 783

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – SENTENCING

Catchwords:  Intentionally cause injury – related summary charges – fail to adhere to conditions of bail – Community Correction Order imposed.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms J. Turfrey	Martin, Irwin and Richards Lawyers

HER HONOUR: 

1Shaun Pitt, you have pleaded guilty before me to one charge of intentionally cause injury, which is a serious offence that carries a maximum term of imprisonment of 10 years, and two related summary charges of failing to adhere to conditions of bail and that is also serious and the maximum penalty for that charge is two years' imprisonment. 

2In addition you admitted your criminal record. Your past offending spans a period from 7 February 2005 to 7 August 2014.  There are relevant convictions for crimes of violence and I also noted two contraventions of family violence intervention orders, so violence against persons. I noted also that you have undergone gaol terms in the past.

3I will now sentence you on the basis of the opening that was read by the prosecutor this morning. 

4You were 31 at the time of this offence and you are now 33.  The victim Timothy Brown was aged 54 and he is now 55.  The offending involved you lashing out and striking Mr Brown to the head, causing him to fall to the ground and lose consciousness.  He was taken to hospital and scans revealed no internal damage to his head; he did, however, sustain nasty grazing and swelling to the left side of his face. 

5No victim impact statement was filed; however, given the circumstances of the offending and the injuries that I have just noted, I accept that your actions would have caused considerable upset to Mr Brown. 

6You had only met Mr Brown that night and there was no reason for you to assault him.  You had both been drinking together happily at the Sandbar Hotel and the Gateway Tavern and for no explicable reason you chose to strike him outside the Gateway Tavern during the course of a discussion that you were having with him. 

7It is only by good fortune that he did not suffer more serious injury and on behalf of the community I must denounce your behaviour.  Violence of this nature involving an unprovoked attack must be condemned.  General and specific deterrence do play a role, although I have sensibly moderated them having regard to your particular circumstances.  Protection of the community is also important.

8You were arrested by police on 20 November 2017 and at a formal record of interview you admitted that you were the person with the victim in the still image taken from the CCTV footage from the Gateway Hotel that depicted the incident. 

9You also told police you had punched the victim, so you were open and made admissions to police at the time of your arrest. 

10Following the arrest you were charged and bailed to 17 January 2018.  You failed to appear at court on that date and you were again arrested on 19 April 2018 and then bailed to another date, 11 April 2018.  You failed to appear on that date and you were arrested again on 3 May 2018.  Those are the circumstances of the two related summary charges.

11You have been remanded in custody and there are some 160 days by way of pre-sentence detention to be declared. 

12Your matter proceeded by way of a Sentencing Conversation in the Koori Court division.  You were arraigned and pleaded guilty and the Sentencing Conversation was held between yourself and Elders and Respected Persons, Uncle Peter Peterson, Auntie Raelene Drummond and Uncle Mark Bland.  The elders all condemned your actions and urged you to reflect on your behaviour and make the most of the opportunities available to help you to reform. 

13In court you were supported by your stepmother Dianne and your partner Jules, who is also the mother of your young son Ray Shaun, who is just a toddler. 

14You were very respectful to each of the elders and genuinely participated in the sentencing conversation.  You presented as a healthy young man who does genuinely care about his family who expressed a real desire to change.  You engaged appropriately in the process, openly acknowledged your guilt and accepted that what you did was wrong.

15I accept that you are genuinely remorseful and regret what you have done.  You now feel ashamed of your actions. 

16You offered as an explanation for your offending that you were under the influence of drugs at the time.  You are now in a position where you want to change and you are willing to undertake a men's behaviour change program and also want to keep working on abstinence from illicit drugs. You have also indicated your willingness to participate in the program at Wulgunggo Ngalu, which is a residential program whereby you can complete the terms of your Community Correction Order at Yarram.  That facility was especially established to assist and support young Aboriginal offenders.

17Your history and background is as set out in the report from David Ball, a consultant psychologist whose report is dated 10 May 2019. 

18You are a Paakantji and a Latji Latji man.  You have experienced some extreme challenges in your life.  You have been diagnosed with an acquired brain injury and intellectual disability with associated poor impulse control. 

19You were born in Mildura and grew up in Wentworth and you are one of 10 children.  Your father Peter raised you as a single parent until you were aged 13.  At age 13 you left your father to find your mother here in Melbourne.  Your mother sadly had issues with alcohol and substance abuse. 

20Your stepfather, her partner, was a violent man and beat both you and your mother.  At some stage the Department of Health and Human Services became involved and you were cared for in various foster placements. 

21You have suffered two head injuries, one at age 10 following a motor vehicle accident, and one at age 18 when you jumped off a moving goods train. 

22You left school at Year 9 and you are not literate.  You have had a long history of alcohol and drug abuse from your early teens as well as periods of homelessness. 

23I have regard to the principles enunciated in the majority decision of Bugmy v The Queen[1].  What that means is the effects of your background of significant deprivation do not diminish over time or repeated offending and that has been given full weight in assessing what the appropriate sentence should be.

[1] (2013) 302 ALR 192

24Since being in custody you have had a chance to reflect and you have used your time well.  You have completed a Relationship Certificate, you have been working, painting and going to the gym.  Your desire following release is to live with your father and stepmother in Wentworth and do everything possible to reconnect with your young son Ray Shaun and your partner Jules.  You want to be an appropriate role model to all of your children.

25You are willing to undertake random drug screens to facilitate supervised access to your young son.  You want to live a healthy lifestyle and you want to connect with your Aboriginal cultural heritage.  You have some knowledge of your cultural heritage, but you desire to know more.  In the past you have made didgeridoos.

26I accept that there are significant and real supports here for you in Mildura in the community and that ultimately, it is in your best interests that you undertake culturally supportive programs to address what it is that is driving your offending behaviour, so that in the future you can remain offence free, drug free and make a better contribution to your community and to your family.

27In sentencing you I have had regard to all the matters highlighted by Ms Turfrey in mitigation.  Your plea of guilty entered at an early stage is reflective of genuine remorse.  It has real utility.  You have spared the necessity and expense of a trial, but importantly, you have spared Mr Brown from the trauma to have to come to court and give evidence against you.  You have facilitated justice and your sentence will be discounted according.

28I also have had regard to what was spoken about this morning in the sentencing conversation from your stepmother and your partner Jules.  I consider that you have made very real efforts to commence the road to change.  I have already mentioned the significance of your background difficulties, your drug addiction and lack of appropriate role models whilst growing up.  I am satisfied that you are currently drug free in a controlled environment at the prison and that you are genuinely committed to remaining abstinent.

29Given your conduct whilst in gaol, I consider that you do have reasonable prospects of rehabilitation.  I have had regard to your participation in the Sentencing Conversation.  I consider that that was a real and genuine effort on your behalf. 

30Finally, I have had regard to the strong support that you have in this community from your stepmother and father and your partner, and also the elders and respected persons who are part of your Aboriginal community, as well as the other supports that I have referred to such as the support services at MDAS.

31I consider that you are now demonstrating a good attitude that does show a growing awareness of what you need to do to keep yourself out of trouble and also to manage your behaviour in the future. 

32Mr Pitt, your ultimate reformation really does depend on you making good your commitments to change, that is remaining drug free and continuing your healthy lifestyle.  In addition, you need to be respectful to others.  You need to not lash out in anger and also you need to pursue your goals of trying to get some work and undertaking programs that will support you. 

33Your ultimate rehabilitation is very important to you individually but also, most importantly, to the community in which you live.  That will offer the community the best protection for the future and reduce your risk of reoffending. 

34Overall your offending is still serious, being a cowardly, unprovoked attack on an innocent man.  Your failure to adhere to the conditions of bail also reflects a poor attitude to court orders.

35I am guided by what was said by Court of Appeal in Boulton v The Queen[2].  In that case the court accepted that a Community Correction Order was intrinsically punitive.  That is it punishes you and is capable of deterring you and others from further offending and that a Community Correction Order may be suitable even in cases of relatively serious offences which might otherwise have attracted a medium term of imprisonment.

[2] [2014] VSCA 342

36So having regard to all those features that I have highlighted, I consider that this is a case where it is appropriate to sentence you to time served to be followed by an 18-month Community Correction Order. I will announce my formal sentence shortly.  I consider that it is of real benefit to the community at large as well as to you individually that you be supported in a way so that future criminal activity can be avoided. 

37I have had regard to the time that you have already spent in custody and I consider no further time to be served is required to reflect just punishment.

38I will now impose the formal orders.  Ordinarily we ask people to stand when we are imposing the orders, so would you mind standing.

39In respect to the one charge of intentionally causing injury you will be convicted and sentenced to time served, which is 161 days to be followed by a Community Correction Order for 18 months with the special conditions of supervision, treatment and assessment for drugs, including testing, mental health programs and other offending programs, and also judicial monitoring, the first of which appointment is on 28 August at 10 am here in Mildura at this court.  That will be conducted via video link.

40In respect to the two summary charges, you will be convicted and sentenced to 14 days on each charge and that is concurrent with the sentence I have imposed on Charge 1, so there is no further time to be served. 

41I have signed the Community Correction Order and I have explained to you the effect and conditions of the order.  You understand those conditions, you have consented to the order being made, and I have also explained to you the consequences of a breach.

42I make the following declaration pursuant to s.6AAA:  but for the plea of guilty I would have imposed a term of imprisonment of two years and six months to serve 18 months. 

43Finally, the last order is for the taking of a forensic sample. What that means is I am going to make an order pursuant to s.464ZF of the Crimes Act.  You will be asked to undergo a forensic procedure.  You will have to attend the police station.  They have a kit.  They give you a little bud to put in your mouth to scrape on the side of your mouth.  That is all you have to do.  Provided you do that, you comply with the order.  If you do not, they can use reasonable force to take a blood sample to give effect to the order, but hopefully that will not be necessary.

44I am satisfied that order is justified in all the circumstances, having regard to the seriousness of the offending, the fact that it is by consent and the granting of the order is in the public interest.

45That concludes my formal sentencing remarks.  My tipstaff has got the order.  Ms Turfrey, do you mind asking your client to just go through those and sign that.

46MS TURFREY:  Yes.  Sorry, Your Honour, just in terms of the order that says, 'You must not leave Victoria without first getting permission', he will be residing in Wentworth.

47HER HONOUR:  Yes, I know.  The Correction Officer is aware of that and at the Bar table she said that that - she understood that, didn't she?

48MR O'DOHERTY:  Yes.  It's not a problem, Your Honour.

49HER HONOUR:  Yes.  So I don't think that that's a problem ‑ ‑ ‑

50MS TURFREY:  So that won't be a breach.

51HER HONOUR:  ‑ ‑ ‑ for the purposes ‑ ‑ ‑

52OFFENDER:  It's not a real breach.

53MS TURFREY:  So it won't be a breach every time he goes home?

54MR O'DOHERTY:  No.

55HER HONOUR:  I don't believe so.

56MR O'DOHERTY:  No.

57HER HONOUR:  Not in the circumstances.  Do you want me to just make a notation on the order ‑ ‑ ‑

58MS TURFREY:  Yes, Your Honour.

59HER HONOUR:  ‑ ‑ ‑ 'Except for the purposes of residing at Wentworth'.

60MS TURFREY:  Wentworth, yes, at 22 Callison St[3] Wentworth. 

[3] Anonymised address.

61HER HONOUR:  Yes.

62MS TURFREY:  That would be ‑ ‑ ‑

63HER HONOUR:  Very well.  I'll make that just so it's clear, but that certainly was made clear orally.  Yes.  This must happen all the time here.

64MS TURFREY:  It's not infrequent, Your Honour.

65HER HONOUR:  Oh.

66MS TURFREY:  No, I said it's not infrequent. 

67HER HONOUR:  All right.  I've made that alteration and we'll put it on the system as well.

68MS TURFREY:  Thank you, Your Honour.

69HER HONOUR:  You're not to leave Victoria without first getting permission to do so from the Secretary or delegate except to attend at the residence listed of 22 Callison St, Wentworth, New South Wales.  All right, so you're allowed to go across the border.

70MS TURFREY:  Home, and live there.

71HER HONOUR:  To live.

72MS TURFREY:  Thank you. 

73HER HONOUR:  Good.  That concludes the matter.  I assume after we adjourn that Mr Pitt will be processed next door and released.

74MS TURFREY:  Yes, I imagine that's correct.

75HER HONOUR:  Yes.  Good.  All right.  Well, you can take a seat beside your stepmother and I'll just conclude the proceeding just by thanking counsel and also thank you Dianne and Jules.  We can adjourn. 

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