Director of Public Prosecutions v Pryor

[2018] VCC 1308

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00470

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENZIL PRYOR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 14 December 2017, 20 July 2018
DATE OF SENTENCE:	20 August 2018
CASE MAY BE CITED AS:	DPP v Pryor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1308

REASONS FOR SENTENCE
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Subject: criminal law - sentence
Catchwords: pleaded guilty to one charge  intentionally cause injury – one charge  sexual assault -  contravention  family violence order -  complainant long term defacto partner – extensive bruising of  body –  victim impact statement:  required to relocate -  counselling – financially out of pocket -  offender 46 years old – aboriginal descent -  acquired brain injury – alcoholism and violence part of early  childhood – alcohol and drug abuse from an early age – previous convictions for violence and  breach of intervention orders  – high risk of becoming institutionalised -  prospects of rehabilitation dim.
Cases Cited: Verdins v R [2007] VSCA 102 – DPP v Davis [2017] VSCA 341 – Bugmy v R [2013] HCA
Sentence 5 years 6 months non parole period 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	OPP
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HER HONOUR:

1Denzil Pryor, you have pleaded guilty to one charge of intentionally causing injury and one charge of sexual assault.  You have also pleaded guilty to a summary offence of contravening a family violence interim intervention order.  Each of the charges on the indictment has a maximum sentence of ten years' imprisonment.  For the summary charge, the maximum is two years' imprisonment.

2This offending occurred on 18 November 2015 at Lakes Entrance.  The victim was a 56 year old woman with whom you had been in a de facto relationship with for about 12 years and at this time, you were living together in
Cabin 30 at a caravan park in the area. An intervention order was in place, allowing contact between you, except when you were affected by alcohol.  Cabin 30 was situated diagonally opposite Cabin 40.  You had had a casual homosexual relationship with  a neighbour, living in Cabin 40. 

3    On the morning of 17 November, the neighbour bought a slab of beer and returned to the caravan park at about midday.  The complainant saw you talking to him and advised you against getting drunk because of the fights and arguments your drinking often caused between you.  You and the neighbour spent the afternoon in his cabin.  He drank about four cans of beer and according to him, you drank at least 15.  When interviewed by the police, you said you had had about 20 cans. 

4    The complainant spent the afternoon watching movies and taking her dog for short walks.  At one point she went across to Cabin 40 and saw you and the neighbour engaged in oral sex with each other, but she believed you were unaware of her presence at the door.  Late that evening, she had been asleep and was woken by you.  You told her to get out of bed because you wanted to have a drink with her.  She agreed reluctantly, fearing that if she refused, the situation might become violent.  She then drank port with you at the kitchen table. 

5You started slapping her face and she blocked your blows, begging you to stop, but you continued to punch her to the face and chest.  You then picked her up and threw her on the bed and grabbed her by the throat and choked her.  She felt like she was passing out and you continued hitting her with your other hand. 

6She recalled seeing that you had a knife and a stubby bottle in your hands and she could feel something between her legs.  You told her you were going to cut her insides out.  She recalls nothing further until she woke up in the bed with you asleep beside her.  She quickly left to get help from the managers of the caravan park, who noted that her left eye was bleeding and she had blood all over her top.  She told the manager that you were going to kill her and her dog. 

7The neighbour recalled being woken by you at his cabin door just before midnight and he noticed blood on your right shoulder area and chest.  This concerned him and he sent you away and he heard you and the complainant continuing to argue and the complainant crying.  The neighbour said everything went quiet after that, so he thought everything was all right. 

8The police arrived at about 1.50 am on 18 November and found the complainant in a cubical in the women's toilet block with a trail of blood leading to the cubicle.  She had blood dripping from her face, which was swollen.  She told the police you had assaulted her and asked them not to let you hurt her.  She was taken to hospital by ambulance and was admitted and treated there for more than a week.  Whilst in hospital, she told the police that you had come into the cabin and threatened to bash her and throwing her on the bed, you put both hands around her neck and said, "There's wheelie bins here, no one will miss you."

9During the investigation, police found bloodied clothing and bedding in
Cabin 30 and near the cabin, they found a black-handled knife belonging to you with blood on the sheath.  The blood was later analysed and found to be consistent with the blood of the victim. 

10The complainant was examined and treated for a long list of injuries to much of her body.  Many of these are visible in photographs that were taken.  They include two black eyes and show that her left eye could not be opened.  There were extensive bruises and small lacerations to the face and neck, as well as bruising and swelling to the chest, abdomen, back, buttocks, both hands and arms, both legs from the thighs to the feet and to the genital area. 

11Some of the injuries, including those to the external genitalia and anal region, were consistent with blunt force trauma.  This bruising was described as being so dense as to suggest that this was the primary site of impact.  Bruising to the lower and upper arms was consistent with parallel force, such as grip by fingers.  Bruising to the back of the forearm was consistent with a defensive injury where the arm is raised to protect the head. 

12At the time of the offence, a family violence interim intervention order was in place, prohibiting you from committing such violence and in assaulting
the complainant, you contravened that order. 

13When interviewed by the police, you said you had not seen any injuries on
her that night and when you had gone to sleep at about 11 pm, she was sitting on a chair with her dog and had nothing wrong with her.  You denied assaulting her, but later in the interview when asked if it was possible you had assaulted her, you said you hoped not and that if you had, you were a dog.  You said she had just had a heart attack and you expressed sympathy.

Personal circumstances and background

14You are a 46 year old single man of Aboriginal descent.  You were 44 when you committed these offences.  You live on a disability pension because of an apparent intellectual disability and an acquired brain injury.  You have remained in custody since your arrest and have been assessed by Ms Lechner,
a psychologist, and by Ms Laura Scott, a neuropsychologist. 

15The result of the tests she administered is that although you have cognitive impairments and you function at an extremely low or borderline level, described as moderate to severe impairment, you do not have an intellectual disability.  Ms Scott tested you very extensively and identified many specific cognitive problems which affect your daily life. 

16She reported extensively on your background.  Your early family life was unremarkable, in that your parents were hardworking, sensible people, as you described them, but you felt different from them and your siblings and from about the age of six, you spent a lot of time with another family, eventually living with them permanently.  Apparently your parents were content with that arrangement, because they found you so difficult to control. 

17Unfortunately, alcoholism and violence were part of that other family's way of life and you often became intoxicated from sniffing petrol or glue, arriving at school in that state.  You no longer have any support from that family, as four of your adoptive brothers have died of alcohol-related deaths and the mother of the family is in aged care. 

18You were in a special class at school and were diagnosed as being mildly retarded, as you recalled it, and indeed you still have trouble reading and writing.  Ms Scott described that as a specific learning disorder which would have led to permanent difficulties.  You began receiving the disability support pension while still a teenager, by which time it would appear that you had already been subjected to extensive alcohol and drug use. 

19As a young adult, you experienced several injuries, resulting in loss of consciousness, including a serious medication overdose, a car accident and assaults.  You also had two admissions to hospital for mental health treatment, including a suicide attempt.  Ms Scott's opinion is that the outcome of cognitive dysfunction would have resulted from the combination of those factors over the years and that a further decline would be likely if you were to resume substance use. 

20Alcohol and drug abuse have been problems from your early-20s onwards, leading to you attending Alcoholics Anonymous meetings and several rehabilitation programs, all of which were unsuccessful, as have been your more recent attempts to overcome substance abuse.  Over the years you have used a range of other drugs, but you have emphasised that ice was not one of them. 

21Immediately before your imprisonment on these charges, you had been drinking very heavily.  You claimed to Ms Scott that you had been drinking two litres of port, four litres of wine and several beers every day and you told her that you did not think that you would ever be able to stop drinking, even though you consider that your thinking has improved since being abstinent while in custody. 

22Ms Scott considered that at the time of the offending, much of your daily function would have been impaired, including stopping yourself from acting impulsively, to the extent that it can be described as an impulse-control disorder, which includes reduced inhibition.  She considered that all of your cognitive impairments would have been exacerbated by acute drug and alcohol intoxication at that time. 

23She said you also presented with a dysexecutive syndrome, which reduces your ability in several ways, including to avoid the repeating of negative behaviours, making you prone to acting on your first impulse without considering the wider impacts and longer term consequences of your behaviour.  It follows, she said, that you would struggle to avoid drug and alcohol use without external restrictions. 

24Your entrenched exposure to violence during your childhood makes it more likely that you might resort to violence as a response to conflict or emotional distress in the future, with these factors increasing your risk of re-offending.  The best chance of reducing this risk, Ms Scott said, was for you to have treatment in a residential setting with the structure offered there as part of your transition after release from prison. 

25Your occupation as a kitchenhand in prison and the close attention you give to that job, as well as the various courses you have done, indicate that you do have that capacity, which could be built on when you are released, perhaps in the context of supported employment opportunities.  Ms Scott suggested this may increase opportunities for social support and provide structure to minimise the risk of relapse into drug and alcohol consumption. 

26Very shortly before you were seen by Ms Scott, you were assessed by Ms Carla Lechner, who noted a very complex clinical picture psychologically.  She identified a possible acquired brain injury and recommended that that be investigated, hence the referral to Ms Scott.  Ms Lechner also recommended residential rehabilitation, noting that you are at high risk of becoming institutionalised.  This was partly evident from your claim to feel less depressed in prison than previously. 

27She noted that and here I quote from her:

"His formative years are suggestive of complex developmental trauma that adversely affected the development of his personality."[1]

Mitigating circumstances

[1] Report of Ms Lechner dated March 7, 2018 p.3

28This diagnosis of cognitive impairment which reduces your capacity for control of your impulses and for effective executive functioning, is a mitigating factor to be taken into account. 

29It was submitted by your counsel, Mr Casement, that the principles in the decision in Verdins[2] are enlivened, so as to moderate the need for general deterrence and that Verdins principles also apply because your cognitive impairment and associated problems will likely make the experience of imprisonment more difficult for you.  I shall return to that matter shortly.

[2] Verdins v R [2007] VSCA 102

30Mr Casement's submission was that your cognitive deficits, with the features of executive dysfunction and impulsivity, are sufficient to explain your actions without needing to consider the additional presence of alcohol. 

31Ms Mahady for the prosecution responded that the Verdins argument did not apply to reduce the role of general deterrence.  She relied upon the decision of the Court of Appeal in DPP v Davis[3], a case dealing with very similar issues of cognitive deficit and the influence of alcohol. 

[3] DPP v Davis [2017] VSCA 341

32The court held that the offender in that case was deliberate in his actions and knew exactly what he was doing, in having sex with a sleeping woman.  In this case, your actions were less deliberate, but you knew what you were doing was wrong.  Intoxication played a significant part in the offending in Davis, as it also did in your case and that cannot be a mitigating factor, as it is clear from the authorities. 

33In my view, your heavy drinking and intoxication was the main driver of your offending, in that it would have reduced your inhibitions and made it more likely that you would act impulsively.  You already had that disposition, according to the expert opinion and it was exacerbated by alcohol.  Therefore, it is not possible to conclude that your moral culpability is lessened by these conditions and so the principle in Verdins is not enlivened in that way.  But that is not to say that those factors influencing your behaviour cannot be taken into account as part of your deprived background as a person adversely affected by extremely negative influences from a very early age which have affected you seriously and permanently.

34As it was put by the court in the case of Bugmy v The Queen[4]:

"An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced."

[4] Bugmy v R [2013] HCA

35The court, in that case, went on to say:

"However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 

36That statement of principle applies in this case.  You have a limited ability to manage daily life without strong structural support, an observation made by
Ms Lechner and Ms Scott and which seems to be demonstrated by your acceptance of prison as a place where you feel comfortable. 

37While general deterrence plays an important role in sentencing you for these very serious crimes, the sentence must be slightly modified because of your particular and somewhat unusual circumstances, while at the same time providing protection for the community provided by prison in the short-term and by other means in the longer term when you are released. 

38Other mitigating factors to be taken into account include your plea of guilty, which was indicated very shortly after the directions hearing, following discussions.  A committal had taken place, at which the complainant gave evidence, but the cross-examination was limited, as it was based on the likelihood that the case would resolve.  Your plea, while not an early one, has meant that the complainant did not have to give evidence again and the trial was avoided.  For that utilitarian benefit, you are entitled to a discount on your sentence. 

39There is no doubt that you are remorseful and that you regret what you did. 
Ms Scott reported that, that you are remorseful within the limits of your understanding and that you expressed concern for the victim.  Ms Lechner also reported that you were concerned for her and from this material, it seems that she was a woman you loved and with whom it seems you had a dependant relationship over many years.  You profess to still love her and you very much regret what you did and you remain concerned about the effects upon her.

40A further mitigating factor is that of delay,   given that you were charged in November 2015, almost three years ago.  The committal hearing was in March 2017 and as a circuit case, it was waiting to be heard as a trial, when eventually it resolved.  The plea hearing began on 14 December 2017 and resumed
part-heard on two further occasions this year.  You have had this hanging over your head for a long time and you are entitled to have that taken into account. 

41A risk of you becoming institutionalised has been identified, indicated partly by your good responses to the structure that prison provides.  This is also a matter to be taken into account as a reason for imposing a shorter, rather than a longer sentence.  You have not experienced any difficulties with prison life.  Indeed, you have been able to take advantage of some opportunities available to you, in terms of regular work and educational courses. 

42It does not follow that you will be well fitted for life in the community when you are released.  Indeed, the reverse may be true and the need for some form of transition, as recommended by both report writers, is well based in my view. 

43I now return briefly to Mr Casement's submission as to the fifth and sixth limbs of the decision in Verdins.  On the face of it, your cognitive deficits mean you are a vulnerable prisoner and your experience of prison may be more difficult than it would be for others who do not have such deficits.  This has not proved to be the case so far, after a very long period on remand.  However, the risk should be regarded as an ongoing one, although with reduced weight attached to it. 

44The prosecution concedes that these two limbs of the decision in Verdins are enlivened in this case and I take it into account, giving it moderate weight. 

Gravity of the Offending

45It is necessary that I consider the gravity of the offending as one of the means of determining an appropriate sentence.  You hurt the complainant very badly, which is obvious from the severe bruising which can be observed in the photographs produced.  I make that comment, taking into account that there was some pre-existing bruising. 

46In her victim impact statement, she described the intense pain she felt when you grabbed her by the throat and incredible pain when you punched her to the head several times.  The pain persisted for a long time afterwards.  She remained in hospital for two weeks, according to her recollection, while some investigations were performed and she feels that she has changed as a person and her life has changed as well.  She has had to move away from her cabin and the caravan park where she was happy and proud of her cabin and the garden around it.  The many necessary moves have left her out of pocket by

$15,000 to $20,000.  She said she has had counselling, which may need to continue and she has been helped by various agencies, for which she said she is very grateful. 

47Assaults on a partner, as occurred in this case, deserve the very strong denunciation of the court and a punishment that acknowledges that family violence is a serious social evil.  Its prevalence in society is a matter of very great concern, with underlying causes that are often difficult to fathom.  While alcohol is often a disinhibiting factor in such cases, it is only a partial explanation and is never an excuse.  There may be, in particular cases where female partners are the victims, much deeper cultural causes that are difficult to identify and even more difficult to alter or eradicate. The criminal law might be considerably constrained in this regard. 

48The complainant deserved your protection, but you caused her great fear and pain.  You intentionally caused her injury and you sexually assaulted her in a serious way, using an object to inflict very dense bruising.  The photographs depicting the bruising are very confronting.  The crimes you committed in both instances represent very serious types of each offence.  It was a flagrant breach of the intervention order that prohibited you from being with the complainant when you had been drinking alcohol. 

49Despite the constraints of general deterrence, the message must be sent to other men who might be disposed to assault their partners, that they will be severely punished if they do. 

Rehabilitation

50As to your chances of rehabilitation, your counsel submitted that you may still be amenable for treatment for substance abuse and the fact that you have goals, such as being able to drive again one day, indicates that there are still possibilities for your rehabilitation.  This must be considered in the context of your criminal history, which is littered with convictions for violence and for breaching intervention orders over the years since 1994.  There has been no sexual offending, but the history, as it stands, when considered together with your own doubts regarding your ability to stop drinking, strongly suggests that your prospects for lasting change are quite dim. 

51You have been in custody for 1,006 days, by my calculation, all of which is to be regarded as pre-sentence detention for this case.  That is about two years and nine months.  I declare that time to be reckoned as already served and
I shall cause it to be noted on the court record.

52Will you stand now please, Mr Pryor.

53I sentence you to four years' imprisonment for Charge 1, intentionally causing injury; four years for Charge 2, sexual assault; and 12 months for contravening an interim family violence order.

54The sentence for Charge 1 is the base sentence for purposes of cumulation. 

55I order that one year of the sentence for Charge 2 and six months of the sentence for the summary charge, be served in cumulation upon the base sentence.

56That results in a total effective sentence of five years and six months.

57I order that you serve a minimum period of four years before being eligible for parole.

58If you had pleaded not guilty to these charges, I would have sentenced you to six years and six months, with a non-parole period of five years. 

59The prosecution has sought a disposal order, which through you counsel, you do not oppose and I make that order. 

60MR CASEMENT:  As Your Honour pleases. 

61HER HONOUR:  Are there any other matters that I've omitted or neglected,
Ms Mahady?

62MS MAHADY:  No, Your Honour. 

63HER HONOUR:  Mr Casement?

64MR CASEMENT:  No, no, that's it, Your Honour.

65HER HONOUR:  Thank you.  You may take Mr Pryor now, thank you, officers.

66MR CASEMENT:  Can I just have a word with Mr Pryor?

67HER HONOUR:  Certainly.

68MR CASEMENT:  Just before he goes down.

69HER HONOUR:  Would you just approach the dock, I will wait here. 

70Thank you for your assistance during the rather long process that this involved, Mr Casement.

71MR CASEMENT:  Thank you, Your Honour.

72HER HONOUR:  And Ms Mahady. 

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