Director of Public Prosecutions v Plim
[2023] VCC 1572
•31 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01134 & CR-22-00632
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY PLIM |
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JUDGE: | His Honour Judge Mullaly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2023 | |
DATE OF SENTENCE: | 31 August 2023 | |
CASE MAY BE CITED AS: | DPP v Plim | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1572 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Common Law Assault – Make Threat to Inflict Serious Injury – Make threat to Destroy Property – Make threat to kill – Destroying/Damaging Property – Aggravated Burglary – Theft – Persistent Contravention Family Violence Order – Assaulted a former partner – COVID times.
Cases Cited:Pasinis v The Queen [2014] VSCA 97; DPP v Reynolds (a pseudonym) [2022] VSCA 263; Mercer (a pseudonym) v The Queen [2015] VSCA 257; Kalala v R [2017] VSCA 223; Filiz v the Queen [2014] VSCA 212; DPP v Evans [2019] VSCA 239; DPP v Meyers [2014] VSCA 314; Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; Biba v The Queen [2002] VSCA 25.
Sentence:Charges 3 -14: 2 years and 3 months imprisonment with a minimum non-parole period of 10 months; Charge 1: fine of $200; Charge 2: fine of $100.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O’Toole | Office of Public Prosecutions |
| For the Accused | Ms S. Lenthall | Papa Hughes Lawyers |
HIS HONOUR:
1Anthony Plim, on 5 April 2023 you requested the court indicate what sentence would be imposed if you pleaded guilty to 14 charges set out on Indictment C2215617. The charges related to a number of incidents of violence and threats to your then partner over the period of March to October 2020. I granted your application and indicated that I would sentence you to no more than three years as a head sentence, with a minimum period of no more than 16 months.
2I provided brief reasons for giving that sentence indication. After considering matters you pleaded guilty, as it turned out, to 13 of the 14 charges on arraignment on 13 April 2023. You did ultimately plead guilty to the 14th charge at a later point.
3
You were represented for a lengthy period of time that these matters have been before this court, and perhaps in the Magistrates' Court as well, by a lawyer
Ian Crisp. I did not, to be frank, find Mr Crisp's submissions on the sentence indication of much assistance, but, thankfully, between the sentence indication and the plea itself you have changed solicitors. Those solicitors briefed very helpful Ms Lenthall of counsel to do your plea.
4
The material secured by your new solicitor regarding your neurological health, and the submissions put by Ms Lenthall, have cast your circumstances in a different light. As noted, the provisions of the Criminal Procedure Act relating to sentence indications make clear that a judge cannot impose a more severe sentence than what was indicated once an accused has pleaded guilty on arraignment.
Of course, if circumstances change between a sentence indication and arraignment and the plea, and then the sentence, the judge retains the discretion to impose a less severe or lower sentence.
5
I pause for a moment to note that just this morning I learnt of the ill‑health of one of your brothers and that is a factor, or an example of a factor, that might change circumstances between a sentence indication and the ultimate imposition of the sentence. I only use it as an example. I will perhaps refer to it as I have just learnt about it shortly. Your counsel on the basis of the new material submitted that
I should take the course of imposing a lower sentence or a different sentence than the one I indicated. I will elaborate on these matters in the course of my reasons.
6
It is necessary to set out what you did. The prosecution tendered the same comprehensive summary of the facts and circumstances. It was the same summary that was provided in the sentence indication and on the plea. I referred to the facts and circumstances in my sentence indication reasons in broad terms as follows. You and the victim began an intimate relationship in mid‑2018.
You had childcare responsibilities from another relationship and, as such, you and the complainant lived in separate houses and saw each other through the week and on weekends.
7The allegation is that you were physically violent and issued serious and, at times, chilling threats from March 2020 until the relationship ended from the most serious incident occurring on 15 October 2020. The prosecution outlined eight incidents, as well as a number of uncharged acts, which reveal that you displayed violent, explosive behaviour towards the victim. I will outline in more detail each of the incidents.
8
Incident 1 occurred on 20 March 2020 when the victim was at your house.
The victim told you she wanted to end the relationship and specifically leave your premises that night. You reacted badly, grabbing her with considerable force, pinning her arms. She was holding on to a coffee cup that was crushed up against her chest causing pain. This conduct was charged as a common law assault.
9Incident 2 was two months later and again when the victim was at your residence. You and she argued and she walked out as, of course, she was entitled to do, and it seems to me it was obviously a sensible thing to do. What you did was run out of the house to where she was there in some fear. You poured the contents of your beer can over her head. This too was a common law assault.
10There were also examples of aggression in text messages. Incident 3 occurred on 11 July 2020 when you sent the following text:
Surely u dont want me to rape, bash and strangle [you] when u do this again.
11This chilling threat was charged as making a threat to inflict serious injury.
12Incident 4 was a week later on 18 July 2020 when you sent another frightening and demanding text:
If you don't answer me, I'll come over and blow ur house up.
13This was charged as a threat to destroy property. It seems the particular topic that caused you to become angry was the victim not wearing a ring that you had given her. She, of course, was perfectly entitled to wear what ring she wanted. She was entitled to avoid glossing over your poor behaviour which she thought wearing the ring entailed. There were other complications regarding the ring which I will elaborate upon, but, of course, this behaviour of not wearing a ring hardly was of a kind that should have brought about any violence of any kind.
14In Incident 5 you expressed threats on 4 August that amounted to a threat to kill. This was Charge 5 on the indictment, make a threat to kill. This is always a serious offence.
15Incident 6 occurred the next day on 5 August when the victim, having told you she wanted to end the relationship, came to your house to collect some of her property. As she went to leave, you grabbed her wrists and pinned her arms. In the incident a bracelet she was wearing and wine glasses that she gifted you were broken.
16In Incident 7 on 9 August 2020 the complainant was again at your residence when during an argument you pushed her forcefully causing her to fall, striking furniture on the way. As she was on the ground you repeatedly apologised. She left immediately. She was bruised and in pain thereafter. She felt she could not, because of embarrassment and her employment, go to seek medical attention. This was charged again as a common law assault.
17Incident 8, the last incident, was the most serious. In early October the complainant returned the ring that you had bought her. This prompted an angry text and phone calls. On 14 October when you were at her residence eating a meal the topic was yet again raised and prompted angry exchanges. You were drinking and at one point picked up a pot plant and threw it, causing damage. You apologised and, understandably, the victim asked you to leave. You refused. Early the next day angry text messages were exchanged.
18Later that day, on 15 October 2020, you went to the victim's house. She refused to let you in, but when you said you just wanted to talk, she relented. Arguments broke out over the ring and whether the relationship could continue or, as the victim had said to you, whether it was over. You became angry and aggressive, backing the victim into a corner. She asked you to leave, but you would not. She was able to get your thongs and she threw them outside. You followed and then went outside to get the thongs. The victim took the opportunity to shut and lock the door, keeping you out.
19You came back to the door and asked to come in as, you again said, 'I just want to talk'. The victim said, 'You can talk through the door', but she was not letting you come in. This, in fact, occurred for about five minutes or so. However, during this time the victim told you to leave multiple times. You refused, though you had ample time to think things through, calm down and leave. You should have. The victim said, not for the first time, that she would call your mother to see if that or your mother would be able to calm you down.
20
While trying to phone your mother the victim could see the door moving with the force of you banging on it. You then did break the door down and entered the house. As is well known to the victim and yourself, and to me having seen you in court a number of times, you are a fit and big man. You are a powerful person. She knew or you knew once you had entered the house that she did not want you there. She ran down the hallway, but you grabbed her as she tried to ring
Triple 0. You then grabbed her by the hair, pulling her to the ground. The force was such that a large clump of her hair came out.
21You then grabbed her phone and ran out to your car. You sat there for a moment, but when the complainant came out to get her phone you ultimately drove off with the passenger door nearly striking the victim as you did so. This conduct gave rise to the serious offences of aggravated burglary, criminal damage to the front door, common law assaults twice and the theft of the phone. The police came and ultimately arrested you that night. The phone was recovered.
22On 16 October the police secured an intervention order for the victim. You were prohibited from contacting or communicating with the victim by any means, including over the internet. What you did over 25, 26, 27 and 28 October was change your profile picture on your Instagram page - if that is the right term - so it contained words directed at the victim such as 'Can we talk, vary the order, trust me. Call.’ This conduct was charged as a persistent breach of an intervention order.
23As can be readily seen, your aggressive conduct was persistent and it escalated until it reached the dreadful circumstances of 15 October when you broke down the victim's door and attacked her with greater force, pulling hair from her head. Your crimes have had a significant adverse impact on the victim. In a victim impact statement, she wrote about suffering depression and anxiety and trouble sleeping and being required to take prescribed medication to deal with the emotional and psychological effects. She has experienced the loss of general wellbeing and her ability to enjoy her life.
24The trauma and loss of the feeling of safety has led to her requiring specialist psychological treatment to deal with post-traumatic stress disorder arising from the attacks and the memories. She feels 'hurt and anger that someone that was supposed to be an intimate partner and love and care for [her], could perpetrate such attacks on [her and] continue to do so'. She said she has had little chance to heal. She is hypervigilant, not knowing so looking over her shoulder over and again to see whether she is safe.
25She has trouble concentrating at work. There has been emotional and psychological effects upon her that have affected her work and her capacity to do the full range of her duties. She has had to move premises due to the post‑traumatic stress issues that arise from the fact that the serious offences took place in her own home, as well in the suburb in which she frequented. This is only some of what was set out in her redacted victim impact statement and I have taken it into account.
26Persistent violent, threatening crimes of this type by men towards intimate partners are a scourge in our community. The courts have now for some time expressed this view, contrasting to what, sadly, may have been the case in the past. In 2014 the Court of Appeal spoke in these terms in Pasinis.[1] It said:
Historically perpetrators of family violence were rarely prosecuted. 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… This makes both specific and general deterrence very important factors in sentencing men who assault their partners.[2]
[1]DPP v Pasinis [2014] VSCA 97.
[2] Ibid at [53].
27As I said in the sentence indication hearing, the Court of Appeal in a more recent matter of Reynolds,[3] decided in November 2022, yet again made clear the importance of sentencing courts expressing the community's intolerance of domestic violence and doing so by imposing stern punishment that properly deters and denounces. The analysis contained in the joint judgment of Justices Forrest and Kidd bears lengthy recitation. What the court said at paragraph 71 about that case was:
[3]DPP v Reynolds (a pseudonym) [2022] VSCA 263.
Regrettably, this is yet another example of appalling family violence which has come before the courts. Family violence is a blight on society, which this Court ‘has been at pains to denounce’.
It is convenient to restate what this Court has said about family violence, and how this informs the sentencing process.
This Court in Pasinis held that the key to protecting victims of family violence:
‘lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.'
Soon afterwards, and in similar vein, this court in Mercer (a pseudonym) v The Queen said the following:
‘This court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This court has made it clear, and will continue to make plain, that offending of this kind will attract serious consequences.’
And again, in Kalala v The Queen:
‘The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen the court acknowledged the shameful truth that family violence is the leading cause of illness, disability and death among Victorian women aged between 15 and 44.'
More recently in the DPP v Evans this court stated:
'Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.'
As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offences.[4]
[4] Ibid at [71].
28As I indicated in the sentence indication hearing, the prosecution gave emphasis to these principles. That position has been maintained on the plea. In the more thorough plea made by your counsel it was conceded that your conduct was aggressive and displayed, over the month leading up to 15 October, significant anger. It was pointed out, not by way of excuse, but that the common law assaults of grabbing or holding the victim, or pouring beer over the victim's head, and the breaking of pot plants, were not the most serious examples of these types of crimes that are unfortunately seen regularly by this court.
29
The aggravated burglary was explosive and frightening but did not have some
of the more concerning features identified by the Court of Appeal in the
DPP v Meyers,[5] such as a break-in in the dead of night in the breach of an intervention order or with weapons or in company. Yours was an appalling but spontaneous explosion of rage when you were understandably locked out of the victim's premises having been there and argued with her just prior. Also, in this case the breach of the later intervention order was by unusual and indirect means requiring, it seems, the victim to look up your Instagram profile for the message that was plainly directed at her, and concerningly so, to be seen.
[5]DPP v Meyers [2014] VSCA 314.
30But all that said your crimes, especially your threats that you sent in text messages, and what you did on 15 October, remain serious, requiring the sentences to properly express denunciation and deterrence. As I have said, your counsel accept this. What was given emphasis was material that painted a more complete picture of your personal circumstances and I turn to those.
31You were born and raised in Bendigo. You struggled at school, leaving to take up an apprenticeship in carpentry. You have remained in the building industry to date. As you grew up you were a talented footballer. You were drafted to an AFL team at age 17, moving to Melbourne. You suffered a significant knee injury and were delisted after one year. This period of time was difficult. You commenced using cannabis and drinking to excess. These problems or these matters have bedevilled you throughout your adult life.
32At this time, now 30 years ago, you were involved in a fight in a hotel. You were sentenced to four months' imprisonment, wholly suspended, by a Magistrate at Bendigo for the crime of recklessly causing serious injury. You have no other prior convictions in Victoria and no other prior convictions for violence. You moved interstate to play football at a high level and have minor driving offences in Tasmania and Queensland, also committed decades ago.
33You were involved in a long-term relationship from 2006 and you have two daughters, now young teenagers. You have remained involved in their lives and they are very important to you. Both your parents remain strong supports to you. I have learnt today that one of your brothers, there are three boys, is desperately unwell, he has a diagnosis of cancer and you have been told he has been moved into palliative care. That is a matter that, having learnt, I take into account in consideration of your predicament, which is that you are currently imprisoned, and I indicated that I would impose a term of imprisonment. Your brother's ill‑health is something that will make prison for you much harder.
34You have a very strong work history in the building industry and that is very much to your credit. You have operated your own business. You are now employed by a company that provides maintenance and upgrade works and the like to the Victorian Department of Housing, involving public housing, and the Education Department, as well as private nursing homes. Your employer made the effort to write to the court about your character and prospects. He wrote this:
Our company relies heavily on our staff to not only have exceptional workmanship but also to be able to interact positively and effectively with people of all ages due to our range of contractual works.
I have seen firsthand Anthony's interaction with school age children (from primary to high school up to universities), residents of nursing homes and tenants of DHHS, and we are extremely happy with Anthony's demeanour and the way he conducts himself whilst amongst all of our clients, not to mention that we do get frequent positive feedback from our clients regarding Anthony.
Over the time that Anthony has been with Webcap Maintenance and Construction PRY LTD he has confided in me on quite a few occasions now. Anthony had made me aware of what has happened in the past and he has shown remorse whilst explaining situations of what happened which has brought him to where he is. As explained above we have had nothing but positive feedback from our clients regarding Anthony. I have said to Anthony that we cannot change the past but learn by it and make ourselves better persons to which I can see first hand that this is happening in Anthony's life.
35He indicates that you have been an employee now since 15 June 2020 and it was considered that you would remain working with them for many years to come.
36A close female friend also wrote to the court in the following terms:
I have known Anthony for over two years now… He's been a support and good friend through my tough times…
I understand that Anthony must attend court in relation to his charges. He has discussed his charges with me and he is very upset and remorseful for what he has done. If he could turn back time, he wishes that he handled things differently. The last couple of years has been hard for him and has taken its toll on him mentally, emotionally and financially.
I can say that in my time I've known Anthony, he’s been a decent, hardworking and trustworthy person. I believe any behaviour he displayed that caused him to be charged with these charges was a one-off event and will never happen again.
37
Of your own accord you attended for counselling and anger management in 2021. You were also seen by a medico‑legal psychologist Mr Bernard Healy in 2021 and again in March of 2023, arranged by your previous lawyers. I have read that report and it is of some help in setting out your background, but I was not particularly helped by the report's opinions which referred to there being,
'no disorders in the personality pattern', but significant traits that Mr Healey, the psychologist, called 'the schizoid dimension, the turbulent dimension and the antisocial dimension'. He did note that you had benefited from anger management.
38Of greater importance, in my view, was that your new lawyers looked at and sought out expert assistance with respect to your neurological function. In short, you have during your long football career, and just in life events as a child, suffered impacts to your head and periods of loss of consciousness. There were also significant episodes of head trauma from motor vehicle accidents. You had reported symptoms to your general practitioner prior to this offending and of importance you were sent for imaging in 2020 before this offending because of your concerns that you were experiencing behavioural changes.
39
While nothing was done clinically at that time, it is, as I have said, of note that you were concerned about your behaviour and your cognitive function it seems in
early 2020. Also, as later reports point out, this area of neurology is an emerging one, it is still far from a full understanding of the impact of head trauma brought about by sporting events and other loss of consciousness in ordinary life. In 2023 your general practitioner referred you for a further MRI scan. These scans were provided to assist Professor French, a neurologist. His report back to your general practitioner said the following:
Mr Plim related that he has some quite dramatic changes in mood and impulse control over the years. He has had some quite significant mood changes and emotional lability over the years. These are often associated with episodes of alcohol binging. He also has sustained large number of significant head blows from when he was a child and then additionally when he was playing high level Australian Football. Several of these blows resulted in loss of consciousness or prolonged periods of vomiting signifying quite severe concussion. Additionally, his mood is very low on occasions and he has had thoughts of self‑harm on several occasions. I understand that he has some current legal issues related to physical and emotional outbursts. He still smokes tobacco and marijuana. He has recently cut down his alcohol intake. He is working in the building industry three days per week but has noticed he becomes quite tired with his employment.
40Dr French went on to say:
Thank you for organising the MRI brain which did not show any major abnormalities but there were some white matter hyperintensities in the frontal region greater than expected for age.
From the neurological point of view, the MRI scans in one sense are reassuring there was no obvious gross pathology such as brain tumour, stroke or multiple sclerosis. On the other hand, there is an increasing level of awareness that multiple blows to the head over long periods of time can lead to cognitive decline, problems with emotional control and mood disturbance. While the intrinsic susceptibility to mood and emotional control can clearly be very significant, the contribution of drug and alcohol as well as the extensive head trauma he has suffered might well be contributing to depressed moods and emotional lability.
I think the most important issues in his case are that he obtains drug and alcohol and psychiatric input.
41Your general practitioner also referred you for a neuropsychological assessment by Dr Berberovic. She reported as follows:
Past medical history included a viral infection (Anthony was unable to recall specifically what the infection was) at age 13 reportedly, requiring removal of cerebrospinal fluid in a lumbar puncture…
In terms of head injuries, Anthony disclosed sustaining several historical “concussions”, providing the following details:
- At 13 years of age, he reportedly struck a car door while riding his bike, recalling that he went to bed with a “migraine for a few days… sick and vomiting.”
- At 18 years of age, he reportedly hit his head on the concrete gutter while on the football field, losing consciousness for five minutes. ‘
- At 19 years of age, he was reportedly involved in a car accident where a truck hit the back of his vehicle, resulting in Anthony hitting his head on the dashboard, later experiencing dizziness and confusion.
- At 20 or 21 years of age, Anthony stated while he was working, he fell from a ladder to the concrete below, and hit his head.
- At 28 years of age, he stated a knee had struck his head at “full force” during a football game, where he was subsequently in bed for two to three days afterwards with “vomiting… headache.”
o Anthony stated he had not been the same since this injury, in that he found it more difficult to hold back his emotions, was more suspicious of others, and he had become more socially isolated.
- At approximately 33 Anthony revealed an incident when he was at a nightclub intoxicated, being struck by a man, subsequently blacking out for 15 minutes. This was the longest time he had lost consciousness.
42She went on:
In summary, Anthony revealed experiencing multiple head strikes from various ages and various situations as described above.
43You did report difficulties, of course, to all your doctors, your general practitioner and the neurological specialist, with your memory and mood. You underwent multiple tests with Dr Berberovic as outlined in her report. You were said by her to have made a genuine and authentic effort in all the tests. What was seen was that you have average intellect, but with significant deficits in your attention and working memory, and your processing speeds. The opinion of this expert neuropsychologist was the following:
On current neuropsychology assessment, Anthony presented with preserved cognitive performances (i.e. average range) in basic attention span, visuospatial and visuoconstructional skills, naming, nonverbal learning and memory, verbal learning for short pieces of information, and aspects of executive function (mental sequencing, abstract reasoning, rapid idea generation, inhibitory controls, concept formation).
Cognitive weaknesses (i.e. low average range) were found among aspects of executive function (working memory, planning and organisation), processing speed and language processing (general knowledge and vocabulary).'
Other aspects of executive function (ability continuously to shift attention between competing demands, mental arithmetic, and self-monitoring) were markedly lowered in the borderline range (i.e. 2nd to 6th percentile), along with Anthony’s learning of lengthy verbal material.
A significant cognitive impairment (i.e. extremely low range; 1st percentile) was noted in memory recall of newly learnt lengthy verbal material.
… based on the available TBI markers (multiple head strikes with LOC [loss of consciousness] of five and 15 minutes), Anthony may have possibly sustained mild brain injuries on these occasions. Given that mild TBI resolves within two years, it is unlikely that his current cognitive profile can be fully explained by mild TBI. It is more plausible that Anthony's current neuropsychological profile is seen as best explained by a combination of structural brain changes (noted on recent MRI brain) and his mental health. An impact of substances cannot be ruled out.
44
At your plea it was discussed as to whether the new reports and the MRI findings had implications with respect to why you reacted so violently in particular on
15 October or became aggressive over the months leading up. There were also submissions regarding your mental health and as to whether this would make your time in prison harder. At the plea I considered whether the new material reopened the discretion to consider a role for a Community Corrections Order within the sentencing equation. I had you assessed and you were found to be suitable for a Community Corrections Order.
45The mental health assessment that was undertaken was also helpful, emphasising the need for mental health treatment to be taken up with your general practitioner.
46I have, as I hope is clear, re-examined carefully your offending and, importantly, the new expert opinions. What is clear is the experts in neurology or neuropsychology have not diagnosed you with an acquired brain injury, but they do note the changes seen in your MRI, they note they are minor but they are beyond what would be expected for your age. There is reference in their reports to the impact of drug use and excessive drinking and your depression, the impact of these upon your mood and capacity to avoid anger.
47
A Community Corrections Order is punishment and does operate as a deterrent.
It is potentially therapeutic, providing mental health and drug treatment. However, I note that you have engaged well with your general practitioner and have access and the capacity to seek out proper treatment via the health system rather than have it mandated or be mandated to do so by the criminal justice system via a Community Corrections Order.
48I take it from all the material that you are very concerned about your neurological health and the recommendations contained in the neurologist's report as to further MRIs over the years and also counselling and treatment, both for drugs and your depression, are things that you would likely take up. Also, I had in my sentence indication allowed for a period of potential parole which would, if granted, in my view, assist you upon your return to the community so that you are supervised and then stable to take up what would be offered to you in the areas that I have just discussed.
49
I have grappled again with the matters outlined in the sentence indication hearing, that while Community Corrections Orders can be and are imposed by these courts for serious offences, and they do have rehabilitative benefits, there is, as I said in the sentence indication, a time when the sentencing purposes of denunciation, deterrence will be too diluted if a Community Corrections Order is imposed
alone, or even in combination, and here again I refer to what the majority in the DPP v Reynolds said as to the importance of a gaol sentence in sending those messages of deterrence and denunciation.
50I am of the view that the new material does impact on an understanding of who you are and what your future holds. In that regard in the immediate term your mental health and your cognitive difficulties, and the general concern you have about your neurological health, all of this will make prison harder. I add to that what I have touched upon, that is the grief that you will no doubt feel by being separate from your brother, who is in ill-health, is a matter that will make prison that much harder. It is hoped that the authorities are able to consider your concerns in that regard should your brother pass away while you remain in prison.
51But in the end the new material that I have discussed in detail does not provide sufficient expert evidence or opinion that would warrant a conclusion that your moral culpability for the offending is to be reduced. What I make of the evidence is it does provide a better picture of who you are. For one reason or another you have some cognitive difficulties and this, combined with drug and alcohol use, has led you through a cycle of frustration, which you met with anger in the turbulent circumstances of your relationship, and that anger that you expressed led to further frustrations and ever increasing aggression, to the point of rage.
52You can see you made very poor decisions and behaved appallingly. I take it from the evidence of those who know you well that you are remorseful. Your experience in the criminal justice system, and with longer gaol looming, are deterrents to you and I conclude you are unlikely to be back before the courts, but, of course, that is entirely up to you. I do take into account what your friend said, that this behaviour is one-off. I do take into account that you were in a stable relationship with your previous partner and have remained amicable in regard to your engagement with your children.
53Your case has been protracted, though I do not take the delays or visit anything adverse on you for that. You thankfully now have the lawyers you have who have moved the case with great skill, speed and appropriate professionalism. Delay is mitigatory in this case. Your plea of guilty is important as a trial has been avoided. The Court of Appeal has said in the cases of Worboyes[6] and Chenhall[7] and then reiterated in Biba,[8] that there must be an augmented benefit to those like you who have pleaded guilty in circumstances where the impact of the pandemic on the criminal justice system remains. It has been significant. The benefit to you must be palpable and it must encourage others who are guilty to plead guilty.
[6]Worboyes v The Queen [2021] VSCA 169.
[7]Chenhall v The Queen [2021] VSCA 175.
[8]Biba v The Queen [2002] VSCA 25.
54All the mitigatory matters that I have spoken about must be given practical effect. I cannot just mention them and then give them lip service only, because the crimes you committed are appalling ones, of concern to the community and of deep impact on the victim. She was entitled to feel safe in her own home.
55Thus, as is appropriate, I have revisited my sentence indication and consider now that a lesser sentence is warranted, but not one that involves a Community Corrections Order. I consider that on your release you should be able to negotiate parole and get on with your life, resume your lawful ways, return to employment and hopefully manage abstinence from drugs, appropriate alcohol intake, and your emotions if you form another relationship.
56In my view there is no need for a Community Corrections Order to play a role in the therapeutic way that they can and, as I have said, the important sentencing purposes of denunciation, deterrence would be too diluted by a sentence with a Community Corrections Order. The facilitation of your rehabilitation is properly a matter for parole and I will establish those conditions by allowing for a potential parole period. I intend to allow for a greater period of potential parole than was indicated.
57There are many separate offences, however, the principles of totality apply and have been factored into the equation. So too has proportionality, which was discussed earlier, and will lead to the imposition of small fines for some offences at the commencement of this criminal behaviour.
58Mr Plim, I have never lost sight of the grave step of sending someone like you to gaol, especially if it is for the first time and likely the only time, but the sentencing purposes, the gravity of the offending requires that I take that step. Doing the best I can and going through each of the offences:
(a) For Charge 1, the common law assault, you are convicted and fined $200.
(b) Charge 2, common law assault, you are convicted and fined $100.
(c) Charge 3, threat, you are sentenced to four months' imprisonment.
(d) Charge 4, the threat to destroy property, two months' imprisonment.
(e) Charge 5, the threat to kill, you are sentenced to six months' imprisonment.
(f) The common law assault, Charge 6, seven days' imprisonment.
(g) Charge 7, common law assault, two months' imprisonment.
(h) Charge 8, the damaging of property, seven days' imprisonment.
(i) Charge 9, the aggravated burglary, you are sentenced to 20 months' imprisonment.
(j) Charge 10, the damaging of property, that is, the door, two months' imprisonment.
(k) Charge 11, the common law assault that occurred, that is, the pulling of the hair and the like, six months' imprisonment.
(l) Charge 12, the theft of the phone, one month imprisonment.
(m)Charge 13, the common law assault as you drove away, two months' imprisonment.
(n) And for the persistent breach of the intervention order, Charge 14, one month imprisonment.
59
I make the following orders: cumulation on the base sentence, being Charge 9 of 20 months. I order that one month of Charge 3, two months of Charge 5,
one month of Charge 7 and three months of Charge 11, be cumulative upon each other and upon Charge 9. The total effective sentence thereby is 27 months and I order that you serve 10 months of imprisonment before being eligible for parole. That term of imprisonment takes into account the matters that I heard regarding family circumstances.
60
Had you pleaded not guilty to these offences, and been found guilty of them,
I would have imposed a sentence of three years and nine months, with a minimum term of two years and four months. You have served 15 days in custody thus far. That number of days having been reckoned, I now declare that it is part of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have served 15 days of the sentence I have just imposed.
61There are other orders relating to I think disposal and compensation.
62MS KIAPEKOS: Just compensation, Your Honour.
63HIS HONOUR: Just compensation. So is there any difficulty with that?
64MS LENTHALL: No, it's not opposed, Your Honour.
65HIS HONOUR: There's a compensation order for payment of damage to the door, I think.
66MS KIAPEKOS: Yes, Your Honour.
67HIS HONOUR: That order will be signed. Is there anything else required?
68COUNSEL: No, Your Honour.
69HIS HONOUR: Thank you. Is the mathematics correct? Take your time.
70MS LENTHALL: I think so, Your Honour.
71HIS HONOUR: Thank you.
72MS KIAPEKOS: Yes, I believe so, Your Honour. Thank you.
73HIS HONOUR: Thank you very much. All right. Thank you very much for counsel's very considerable assistance in this matter. Mr Plim, I will leave the court, likewise the prosecutor, and if you, Ms Lenthall, need to have a discussion. I've got no doubt that you'll be able to do that at other times as well, but we'll allow what time you need now.
74MS LENTHALL: Thank you, Your Honour.
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