Director of Public Prosecutions v Proctor

[2023] VCC 1524

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00376

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER PROCTOR

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2023
DATE OF SENTENCE:	23 August 2023
CASE MAY BE CITED AS:	DPP v Proctor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1524

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron
For the Accused	Mr L. Dogger

HIS HONOUR:

1Christopher Proctor on Indictment ending 152 you have pleaded guilty to
one charge of reckless conduct endangering life.  That crime carries a maximum penalty of 10 years imprisonment. 

2On indictment ending 867, you have pleaded guilty to one charge of attempting to pervert the course of justice.  One charge of contravention of an order intending to cause harm or fear for safety.  Those crimes carry maximum penalties of 25 years and five years respectively. 

3Insofar as the reckless conduct charge is concerned, I am aware that that is a rolled-up charge in order of the law relating to sentencing in respect of such matters.

4You are now 44 years of age.  You have pleaded guilty and whilst I suspect in your case remorse is very problematic, I will give you the benefit of it.  You must get the use of utilitarian benefit of your plea of guilty.  And particularly in these times of Worboys v The Queen it does save the system a significant amount of time and amount of cost.  So you get the benefit of that.

5It is also a situation where by pleading guilty your former partner has not had to go through the experience of essentially, being cross-examined and called a liar.  Which is what I suspect would have happened.

6You do have prior convictions, most of which appear to be for driving type offences.  You have one prior conviction for contravening a family violence order for which you received a fine.  I understand that was in regard to this victim as well.  But that is simply part and parcel, you do not get sentenced for the same thing twice.

7The circumstances of the offending are concerning indeed.  The first charge relates back to 2013 so it is somewhat of historical nature.  But the other offending occurs around 2019.

8The victim in the matter is your partner.  She has been married to you for, as I understand for about six years.  You are married and share two children together.  Since you have been arrested for these matters, you have remained in custody for some 528 days.  And as I understand it, your relationship apparently is over.

9Your reckless conduct involves some time in 2013 after a verbal dispute, you sat on top of the victim and choked her to the point where she could not get any air and that went on for a couple of minutes. 

10In 2019 again a situation at your home address in Warrigal.  You were angry at her, held her down on the floor and put a machete against her throat.  You were screaming and spitting in her face.  That occurred in the presence of the
two children.  It was quite disgraceful behaviour.

11On another occasion in 2019, you and her were driving to Pakenham, it was raining, you apparently pulled the hand brake on while the vehicle was moving.  She put her foot on the brake in response.  And the vehicle went off the road and almost hit a fence.

12In March of 2022 again, you were arguing at the home and you proceeded to choke her on the bed with your hands.  She says that,

'She was struggling to get air in and felt that you, cut her off for a bit.'

13They are the matters that relate to the actual reckless endangerment.

14Subsequently and this is more for context than anything else.  On 13 March she was in the shower at her home address in Warrigal.  You were angry at her for not buying drugs for you.  When she came out of the shower, you put her on the floor, dragged by the hair.  She was face down on the floor and you continued to pull her hair on the back of her head.  She got hold of her phone and recorded you lunging at her.  She fell to the ground, the phone landed under her stomach.  You apparently then stood on the back of her neck.

15The recording captured audio apparently of you yelling at her and you can hear the kids crying in the background.  She was asking you to, 'Please stop' or begging you to please stop.  And apparently one of the children could be heard asking,

'Mummy are you dead?'

16She then left the home address and police were notified.  And ultimately you were arrested at that address.  You were interviewed on the same day.  You denied owning the machete.  You denied the allegations that were put to you but you answered no comment to several of the questions.

17You were then taken to Ravenhall Correctional Centre where as I understand it you have remained ever since.  So they are the circumstances surrounding Charge 1.

18On 15 March 2022 an interim family violence intervention order was issued at Latrobe Valley Court, it contained the usual provisions.

19On 20 March you sent her a letter, which I am unaware of the contents of.  And that gives rise to a breach.  As I have indicated that is of no real concern here and it will simply be a short sentence to be served totally concurrently.

20On 4 April 2022 you father visited your victim at her house in Warrigal.  And advised her that he had spoken to you that day and you told him that she not have brought up the family violence incidents.  She felt pressure from your father to amend her statement.

21She reported the incident to the informant and said,

'She was not going to change her statements it contained the truth.'

22On 27 April, he came back again.  Again, told her the same things as on the previous occasion, asked whether she had called the police yet.

23She said, 'Police, she said,

'Yes but it was up to the police to withdraw the charges.' 

24She told your father to talk to them.

25The victim then called the informant at half past four, told her that your father had been around there 10 to 15 minutes earlier.  And told police, which appears to be the case that, she'd been told to drop the bit about the weapon.

26On 9 May, your father again attended at the address and asked if the charges had been withdrawn or have you done anything about it.  And told the victim that you had been charged with attempted murder.  Apparently, you claim that that is what you thought, whether that is true or not I have no idea.  And that she needed to fix it.  Whether that was just an attempt to totally bluff her or not, I do not know.  I will work on the basis that what is in your barristers submissions is correct.

27In any event, your father told her that,

'She needed to, fix it.'

28That was again reported to the informant.

29On 15 June 2022 though I accept it was probably sent a couple of weeks earlier, the victim received a letter addressed to the two children.  It was from you and said as follows inter alia;

'I'm praying dad comes home soon 'cause he needs huge big cuddles and kisses, it's been far too long.  All that depends on Mum 'cause dad's gonna plead not guilty to these charges.  But if Mum testifies at court, Dad will be in gaol for up to three or five years which I don't want.  So I'm hoping she doesn't for all of us.'

'Dad got court next week on Tuesday so you have to please ask Mum not to testify against dad.  Pretty please, 'cause Dad wants to come home.  He doesn't hate Mum at all, he wants to fix things with her and hopefully give you two another brother or sister if Mum still wants that.'

30Your counsel points out it is highly unlikely that that would have been given to the children and I do not even know if they can read.  Whatever the motivation behind it, it is a pretty disgraceful letter to send, trying to inform by some way shape or form, children that the reason you are in goal for what you did is somehow or other her fault. 

31In any event she did not show the kids that letter but gave it to the police in
June 2022.  That of course is one of the particulars of attempting to pervert.  And the others are the ones that I have read out from your father's visits.

32There is then a series of Arunta calls which I do not need to go through.  They are clearly calls in which you are trying to talk your father into going around and seeing her.  Trying to get the charges dropped.  And it seems to me that they are pretty irrational phone calls going on during that period of time. 

33And you had been told, or some one's told you that you are going to get gaol, three to five years, things along those lines.  When that was brought up you were again asked to be interviewed about it but you refused to be interviewed about those allegations.  In any event you are perfectly entitled to do that.

34The interim family violence intervention order became final in June 2022.  It is in my view a serious example of reckless endangerment, that I am aware has a maximum penalty of 10 years.  Once you start choking people there is just simply no excuse.  It is male domination which is just deplorable.  Domestic violence at its worst.  In the contextual sense it has been done in front of the children and indeed in one of the rolled-up matters, within that first count.  It has been done in front of the children and they actually appear to be worried that their mother's actually dead as a result of what you have done.

35But in any event, you have pleaded guilty and I am aware of that and one has to not sentence in anger.

36Insofar as pervert the course is concerned, again in my view it is a serious example of it.  You can think of much worse where witnesses are threatened to be killed and all sorts of things like that.  But this is persistent over a couple of months.  It was in the report of Dr Cidoni that she says apparently in her second report, some year after the event that you did not know the different between right and wrong.

37Well, her earlier report from 17 June indicates pretty clearly that you did.  And
I reject her diagnosis that you were unable to make that distinction.  You clearly knew what you were doing.  It was planned and you were putting pressure on her to try and have the charges withdrawn.

38So certainly not the worst example that I have seen but it is a serious one in any event.  In my view a gaol sentence with a non-parole period is the only available option.  As I said to your counsel, the seriousness of the offending, together with protection of your partner become paramount in this situation. 
Of course, the application of general and specific deterrence calls for denunciation.  And each of them calls for an appropriate punishment.

39It seems to me that were I to accord with your counsel's submissions with a CCO, I would have no control over it, nor would anybody else, the protection of her.  Whether an intervention order is going to be sufficient, is anybody's guess.  But in any event, with the Parole Board, they will be able to ensure that upon your release, which I assume will occur in due course.  You will be adequately supervised and closely supervised.

40I have taken into account the reports of Ms Cidoni and your counsel's very helpful submissions.  I do not have to go into great detail on your background. 

41As I said you are now 44 years of age, you went to primary and secondary school in Drouin, up to year 10.  You said you had a pretty good childhood.  You left school, did a carpentry pre-apprenticeship which you did not finish.  And subsequently worked in retail, fruit picking, labouring and the like.

42At the age of 17 you briefly resided with your biological father who up to that time had no desire to be involved with you and it was around that time you started drinking.  And alcohol obviously over the years has been a really worry to you.

43At the age of 20 you went to Queensland and became somewhat itinerant I do not criticise you for that.  You were living in caravan parks.  In those circumstances you became involved with the criminal element I am assuming and began using drugs.  And your drug use of cannabis and amphetamine began as casual but you quickly became addicted.

44Your parents ultimately intervened, brought you back to Drouin, though your drug issues persisted.  I accept from what your counsel says that you have been clean since you have been remanded in respect of these matters.

45At around about the age of 24 you had a two year relationship with a woman named Kristen.  You had a son together who at 13 years of age came to reside with you for six months.  There was some situation where you were beaten by a bat and you were suspicious of him or associates of your son.  I do not know quite where that takes me.

46But in any event, you commenced daily use of methamphetamines, at age 30.  You had been unemployed for eight years prior to your remand due to drug use.  And that is referred to in the victim impact statement.  You were diagnosed with a major depressive order 12 years ago.  And I accept that that is the case and would make gaol harder for you.  And that is also confirmed by Ms Cidoni.

47You have in the past reported suicide ideation and drug induced psychosis.  You and the complainant, the victim were together for 14 years, two children who unfortunately had to witness all this, well not all of it but obviously a significant amount of it.  Were seven and eight, that might be at the present time.

48I have accepted that you have got the utilitarian benefit of that plea of guilty. 
I have obviously taken into account the matters contained in Ms Cidoni's report.  I work on the basis that you do have a persistent depressive order.  And that would have affected your, and has affected over a long time I suspect, your capacity to think and act in an orderly fashion.

49I also accept that you have got a generalised anxiety disorder and I take those into account in an overall sense without even having needing to refer to Verdins.  And certainly, somebody with those disorders would find it more difficult in gaol than those who did not.  Though it seems to me that they are fairly common disorders in the prison environment.

50Ms Cidoni says,

'Long term imprisonment will intensify your depression and anxiety.' 

51I accept that they may well be the case but general deterrence and denunciation and appropriate punishment have to play a significant part in all this.

52As I say, I do not think I need to go through those reports in detail.  I accept that since you have been in gaol, and this is very much to your credit.  You have not been wasting your time.  You have stayed clean, you have done various courses, or as many courses as you could do, bearing in mind the circumstances in gaols at the moment.  And I have taken into account your mental health.

53The situation is in the ultimate, I do not know what your prospects of rehabilitation are.  I would be dubious but certainly at your age you can still turn your life around.  The risk of you reoffending again, I will leave that up to others to assess at a later period in time.  The underlying feeling here is that, well I have indicated, one of the reasons I am giving a minimum term is protection of the complainant.

54You have indicated that you want to be reunited with the children and the like, that may be well a matter for others.  Again, I have no intention in any way shape or form buying into that.  There is an intervention order in place. 
I understand that.  That will be in place for quite a significant period of time.  But certainly in my experience over the years, that does not tend to make a lot of difference in certain situations.  Hopefully you do obey it upon your ultimate release.

55In any event, taking all those matters into account, Charge 1, recklessly endangerment, three years.

56Charge 1, pervert the course, two years.

57On the second indictment, Charge 2, two months totally concurrent.

58I direct that one year of the sentence imposed on the attempt to pervert be served cumulatively on the sentence imposed on the reckless endangerment.

59Which gives a total effective head sentence of four years.

60I direct you serve a minimum term of two and a half years before becoming eligible for parole.

61I direct that, 528 days be reckoned as having been served under this sentence.

62And I say that pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have imprisoned you for a period of six years with a minimum term of four.

63Are there any other orders I need to make gents?

64MR CAMERON:  No Your Honour.

65MR DOGGER:  No Your Honour.

66HIS HONOUR:  All right thanks for that.

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