Director of Public Prosecutions v Reid

[2023] VCC 1003

IN THE COUNTY COURT OF VICTORIA

AT Ballarat

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00049

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID REID

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Ballarat
DATE OF HEARING:	18 January, 29 May 2023
DATE OF SENTENCE:	06 June 2023
CASE MAY BE CITED AS:	DPP v Reid
MEDIUM NEUTRAL CITATION:	[2023] VCC 1003

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW      

Catchwords:   Common assault; threat to kill; intentionally cause injury; assault with intent to commit a sexual offence

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571

Worboyes v The Queen (2021) VSCA 169

Sentence:  5 years’ and 6 months’ imprisonment

NPP 3 years and 8 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Ms A. Sharpley	Leanne Warren & Associates

HER HONOUR:

1David Reid, you have pleaded guilty to the following offences that arose from an incident on 26 April 2021.

Charge	Offence	Maximum Penalty
Charges 1 & 5	Common assault	5 years’ imprisonment
Charge 2	Threat to kill	10 years’ imprisonment
Charge 3	Intentionally cause injury	10 years’ imprisonment
Charge 4	Assault with intent to commit a sexual offence	15 years’ imprisonment

2At the relevant time you were 41 years of age.  You lived with your mother in Ararat.  The victim was 27 years of age.  She and her two children also lived in Ararat.

3The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  Charges 3 and 5 involve continuous offending during this incident. A general summary of the facts is as follows.

4Your first contact with the victim was on Facebook, in January 2021.  You messaged each other, met in person around one week later and commenced an intimate relationship. 

5As the relationship developed, the victim perceived you as a jealous and controlling partner.  From time to time, she raised these concerns with others; on at least one occasion, she disclosed that she was scared of you.

6On 25 April, you went to her home for dinner.  At around 9.00pm, after her children had gone to bed, you and the victim argued about her sending messages to another man.  You left around 15 minutes later, and she went to bed.

7At around 10.00 pm, the victim received a phone call from her mother, who told her that you had posted a photo of the two of you on Facebook with the caption, 'Such a shame u couldn’t stop talking to other blokes, you will be missed'.

8The victim hung up the phone, viewed the post on Facebook and then contacted you.  You told her that you had made the post as she had talked to other men behind your back.  You also told her that you had slept with other women during your relationship.  Throughout the evening, you exchanged a number of messages about infidelity. 

9The victim contacted her mother at 10.33 pm.  While on the phone, she received a message from you which read, 'Probably on the phone to him now.  Goodbye … you’re a slut'.

10The victim commenced a three-way phone call with you and her mother.  The issue of infidelity was again raised.  The victim became upset, and you said you would come to her home to comfort her.  You arrived approximately five minutes later, entered through the unlocked front door, and went into her bedroom.  She was hysterical and you tried to comfort her. 

11The victim’s mother rang her daughter at 10.51 pm.  She was told that you were at her house and was asked to attend.

12At approximately 11.15 pm, the victim’s mother arrived as you were in an ongoing argument.  At approximately 1.00 am on 26 April 2021, her mother thought that both of you had settled down, so she left.  However, the argument continued.  The victim became so upset that she vomited several times.  You were in her bed and kept asking her to cuddle you.  She rejected these requests.

13At one stage, the victim went into the bathroom to vomit.  She came back to the bedroom and sat on the side of the bed.  You put your arm around her to pull her closer to you.  She did not want to be touched so she pushed you away and 'smacked you' several times. 

14You became angry, grabbed the victim and threw her onto the floor between the bed and the bedside table.  She was unable to move.  You yelled, 'I’m going to wreck you.  I’m going to kill you.  You should know not to make someone like me angry.' (Charges 1 and 2)

15You placed your knee on the victim’s chest and put your hands around her throat.  You squeezed her neck with such force that she could not move, breathe or open her eyes.  She felt intense pressure and pain in her neck, throat and jawline. (Charge 3)

16The victim felt helpless on the floor.  You pulled her up, threw her onto the bed and forcefully hit her face and head many times with an open hand. (Charge 5)

17You ripped the victim’s pyjama pants off and said that you were going to sexually assault her. She was naked from the waist down and terrified. (Uncharged act) She tried to fight you off, but you grabbed her by the ankles, lifted her legs into the air, and touched her around the genital area with your fingers.  The victim squirmed out of your grip and got away from you. (Charge 4)

18She pleaded with you to let her put her pants back on, but you refused.  You angrily and repeatedly demanded that she answer your questions.  She was fearful of a further assault. 

19Each time she tried to get away from you, you stood over her and hit her to the face and head with an open hand.  You knelt on her chest and choked her four or five times. (Charges 5 and 3) 

20The physical altercation lasted for approximately one hour.  When you left the room to use the bathroom, the victim put her pants back on as she was still scared of being sexually assaulted.  She grabbed her phone to call for help but did not have time, as you re-entered the room.  You apologised and acted like nothing had happened.  When the victim did not respond, you began to assault her again with an open hand. (Charge 5) You then left. 

21By chance, you were intercepted by police in your car at 2.37 am.  You said that you were on your way home from your partner’s house after a verbal argument.  The police asked if there had been any threats or violence involved, and you said that there were not.  You said nothing major had happened; that it was a reasonably new relationship, that did not look like it was going to work out. 

22The victim soon contacted her mother, who returned to her daughter's house and found her in bed, distraught and crying.  Her mother observed numerous injuries and immediately contacted the police, who attended.  The victim told police that she had been sexually assaulted, that you had been 'on and off' strangling her, and that she could not tell you to stop, as she could not speak.  The police took photographs of her injuries. 

23You continued to send messages to the victim.  At 7.20 am you wrote:

'Never in my wildest dreams did I think you would do this to me.  I’m sorry for my part in it.  But believe me I will walk away after that one.  Wish you all the best for your future.  You have serious issues and you need help.  I will always love you.  This is such a shame, but goodbye…...'

24She did not respond to this message.  Later that day, you messaged her again, saying:

'Thanks for getting me in trouble.  It will kill my mother.  I don’t care about myself but I care about her.  You bashed into me, I hope you told them that.'

25Two minutes later, you sent a further message saying:

'And I’m so sorry, I will always love you.'

26In the course of investigation, police members observed that the victim was having difficulty breathing and an ambulance was called.  She was taken to hospital, where she received medical treatment for her injuries.  She was examined and photographed, and the following injuries were observed:

·        slight swelling to both cheeks, bruising under both eyes and a bruise on the right side of her jaw;

·        purpura, (a rash of purple spots due to small blood vessels leaking into the skin), and petechiae (pinpoint, round spots on the skin as a result of bleeding) were both present inside her mouth and upper lip on the left side, and petechiae were present inside her mouth on the right side;

·        the victim reported pain when swallowing, a sore throat and a hoarse voice;

·        three linear marks on the left side of the victim’s neck;

·        two greyish bruises on the back of her right arm, above her elbow.

27The victim’s mother took further photographs of her daughter’s injuries two days later. I have viewed the bundle of photographs, which form part of the depositions.

28No victim impact statement has been made, although the victim was present via Webex at your plea hearing.  There is no information about any residual difficulty that your conduct has caused.  In statements that she made soon after this incident, she described that she could not breathe or get away from you when your hands were around her neck.  At one point, she thought that she would die due to the force and pressure that you put to her throat. She was 'paralysed' with fear when you left.

29To have been threatened to be killed, assaulted and choked by you while in her bedroom at home, must have been a traumatic and terrifying experience. Your violent and aggressive conduct continued for around 1 hour.  The victim must have been in real fear for her life throughout that period.

30It is accepted on your behalf that your offending conduct is serious and that a term of imprisonment, with a head sentence and a non-parole period, is the only appropriate disposition.

31You were arrested on 29 April 2021 and made a 'no comment' record of interview. You were charged and remanded into custody.  You have served 768 days pre‑sentence detention.

32A contested committal was conducted in January 2022, where witnesses including the victim were cross-examined.  You were committed to stand trial and entered pleas of not guilty. 

33Your trial was expected to proceed on circuit in Ballarat in January 2023.  Pre‑trial argument was listed to commence on 16 January and after discussions between the parties, the matter resolved.  You pleaded guilty to an updated indictment that was filed on 18 January 2023.

34I accept that your plea was entered at the earliest opportunity.  While you intended to contest some of the charges on the original indictment, you were originally facing the more serious charge of rape.  The prosecution concedes that once the 'head charge' resolved to a lesser offence, your guilty plea was immediately forthcoming.

35You are entitled to receive a substantial benefit for your guilty plea.  It has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence again.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.

36The utilitarian benefit of your plea is to be enhanced by the fact that the Worboyes[1] considerations are engaged.  This results in a more pronounced amelioration of sentence than at another time.

[1] (2021) VSCA 169.

37Your plea of guilty demonstrates that you have finally accepted responsibility for your offending.  Your counsel submits that your plea is also consistent with remorse.  I accept this submission, although the remorse was not immediate.  I will return to the aspect of remorse later in these reasons.

38I turn now to your personal circumstances.  You were born in June 1979 and have just turned 44 years of age.  At the time of your birth, your mother was aged 40 and your father was aged 70.  Your father passed away when you were 17 years of age, after a two-year battle with cancer.  This period of time was particularly hard for you and your mother.

39You have one sister who is 13 years older than you. You also had four older half‑siblings, one of whom has recently died.  You were unable to attend her funeral.

40You have five daughters, ranging between the ages of 10 and 21, from three different relationships.  You remain close to your two eldest daughters, one of whom has written a letter to the court.  She describes you as a loving parent, who has always provided her with emotional and financial support. You are not currently as close to your younger children.

41You had a friendship with a woman in 2020, that has now developed into a relationship.  Your partner has written a letter to the court.  She communicates with you regularly and is aware of your current circumstances.  She believes that you have been honest with her when you have expressed remorse.  She is aware that you were saddened by the death of your sister when in custody.  Her intention is for your relationship to continue.

42You were raised in Ararat.  Despite being cared for by your parents, your formative years were affected by bullying, severe physical trauma, sexual abuse and domestic violence.  Initially, you struggled at school, as you were frequently bullied about the age of your parents.

43At around the age of eight years, you were the victim of an incident of sexual assault, committed by a family acquaintance.  You did not disclose this until recently.

44At the age of ten, you were caught in a fire at a local football match, which was an accident involving fuel and a barbeque.  You suffered third-degree burns to your back and legs, being approximately 20 per cent of your body.  You were taken by helicopter to the Royal Children’s Hospital where you were admitted for several months and underwent numerous operations.  The incident and your treatment were regularly reported in the local newspaper.

45When you returned to school, you were required to wear compression bandages for some time and unable to participate in many activities.  The disfigurement to your body affected your social interaction with your peers.  School was not an enjoyable experience as you were ridiculed, verbally abused and the target of further bullying, as a result of your injuries. You believe that it was at around this time that you first resorted to the use of violence to solve your problems.

46When you were a teenager, you became the victim of family violence committed by a brother-in-law who resided at your home.  On one occasion when you were in your early 20s, he assaulted you with an axe handle, fracturing your nose and cheek bones.  You reported the matter to the police, although you do not believe that he was ever charged with this incident.

47You attended local primary and secondary schools until midway through Year 9.  You have a strong work history, undertaking various forms of employment, including working at abattoirs and on farms.  Prior to your current remand, you were employed as an excavator operator.

48When you were employed at an abattoir as a teenager, you contracted Q fever, which left you unable to work for around 2 years.  Your workplace had failed to comply with their obligations to vaccinate employees against this illness and as a result, you received worker’s compensation.

49Your circumstances led you to depend on alcohol and heroin, in a misguided attempt to self-medicate.  You were also prescribed anti-depressants for the first time and continued to take this medication until around 2020.

50You were involved in a workplace accident in 2008, where you suffered a laceration to your right hand, which has had an ongoing effect on its function.  You were prescribed MS Contin for pain relief.  Since then, you have intermittently abused both prescribed and non-prescribed analgesic medications.

51You started to consume alcohol as a teenager and consider that you were an alcoholic until you were incarcerated in 2013.  You now abstain from the consumption of alcohol.

52You have been a polysubstance user since your teenage years.  You have used opioids intermittently since you were in your twenties.  At the time of your most recent release from custody in 2020, you were not prescribed any medication.  You were then involved in a motorbike accident and prescribed opioid pain relief medication, which led to your relapse into illicit opioid use.  At the time of your current offending, you were addicted to buprenorphine.

53While in custody, you are now in receipt of methadone, prescribed anti-depressant medication and have received some mental health support through Forensicare.

54You have a lengthy and relevant criminal history, where you have appeared in court approximately 25 times since 1995.  You have been sentenced to many terms of imprisonment, mostly imposed in the Magistrates’ Court.  Included in your criminal history are numerous crimes of violence, being threats to kill, intentionally cause injury, recklessly cause injury, threaten to inflict serious injury, reckless conduct endangering serious injury and unlawful assault.  You do not have a history of sexual offending.

55On 13 October 2016, you pleaded guilty in the County Court to several offences including one charge of aggravated burglary and 3 summary offences of assault.

56The primary victim of your offending in that case was your former partner and I have read the sentencing remarks of Judge Pilgrim.  He noted that it was 'imperative' that you receive professional help and counselling in order to rehabilitate.  You received a total effective sentence of four years, three months and fourteen days’ imprisonment, with a non-parole period of three years.  You spent the last three months of your sentence in the Judy Lazarus Transition Centre, where you completed a Certificate III in Civil Construction at TAFE.

57Upon your release on 10 March 2020, you found employment as an excavator operator, working in the Grampians.  You maintained this employment and completed your parole.  You resided with your elderly mother, who needed support.  One of your family members has now taken over that role.  You were only back in the community for 13 months before you reoffended.

58There is no dispute that the current time you have served in custody is more onerous than for prisoners prior to the COVID‑19 pandemic.  You have undergone unduly harsh conditions, including 14 days’ quarantine upon entry and other periods of lockdown, over the past two years. For a lengthy period, you were unable to exercise, which has had a significant emotional and physical impact upon you.  Your weight has increased significantly which has been highly problematic, as the scarring from your burns and the grafts you received have resulted in a lack of elasticity to a large proportion of your skin. You are now provided with specific medication to assist your weight loss to try to avoid surgery, which is likely to otherwise be required.  Fortunately, you can also now exercise, as the onerous conditions have been reduced.

59I am aware that vocational and educational programs have been more limited than at the current time, although you have now completed a GO Life Skills Program.  While additional restrictions are currently reduced, the evolving nature of the pandemic may result in future changes.  The hardship which has occurred as a result of the pandemic justifies a sentencing benefit.

60Your hardship in custody was exacerbated when your case was listed at the MRC, as part of the Court Sex Offender list.  As a result of this, you were stabbed in the stomach with an ice pick, in July 2022.  You were then transferred to the Ravenhall Correctional Centre.

61You have been employed throughout your remand period, in the role of head cook at the MRC, in horticulture and now, as a food billet.  This is consistent with your strong work ethic.

62At the request of your solicitor, you participated in a psychological assessment with Mr Jeffrey Cummins, on 26 April and 23 May 2023.  In a report prepared for Court dated 4 May 2023 and a supplementary report dated 24 May 2023, Mr Cummins confirmed that you have a number of highly relevant prior matters, although these do not include any sexual offences.  Mr Cummins provided a detailed account of your personal history and mental health background. 

63In discussion with Mr Cummins, you admitted that you 'felt jealous' and 'lost the plot' when you offended.  You described yourself as a polydrug user and that you were abusing buprenorphine, endone and oxycontin at the time.  You took full responsibility and acknowledged that there was no excuse for your offending conduct. You stated that you feel terrible for what you have done and that the  victim would be significantly traumatised.

64You acknowledged that you have unresolved issues to do with trust, anger and with being exposed to various traumas in your life.  You recognised that you need to participate in an anger management program.  You admit that given your history, it is inevitable that you will receive a sentence of a significant duration.

65Mr Cummins opined that:

·        you have been suffering symptoms of a major depressive disorder of moderate severity which has been recurrent in type, with associated features of anxiety and traumatisation.  This first arose in your late childhood years when you were sexually abused and suffered significant burns to your body;

·        you currently present as a depressed person, even though you are now in receipt of appropriate medication.  You are motivated to receive and participate in whatever treatment is offered for you;

·        you have an antisocial personality disorder, in conjunction with having very significant mental health issues;

·        you would benefit from appropriate mental health treatment and hope this will be available while you are incarcerated;

·        you are a traumatised and angry person who has not yet adequately worked through and resolved symptoms of traumatisation and associated anger;

·        your overall risk for committing further offences of violence is moderate to high;

·        it is imperative that you participate in further anger management courses, such as a violence intensive program;

·        the sexual offending was more likely to reflect your feelings of anger, resentment, hurt and perceived mistrust of the victim as opposed to your suffering from a specific sexual deviance;

·        your current risk for committing a further sexual offence is moderate.  It would therefore be appropriate for you to participate in a sex offender program.

66In the subsequent report, you indicated to Mr Cummins that your pent-up feelings of anger arose in the context of being sexually abused as a child, bullied at school and being embarrassed and even angry with yourself.  You stated that there was a nexus between those events in your life and your history of violent offending and associated mood fluctuation.  You have always thought of yourself as self-medicating in relation to trauma through abusing various substances, including prescribed and non‑prescribed medication.

67He further opined that:

·        you present as a traumatised and angry person, although you have difficulty systematically expressing in what ways you are traumatised;

·        you suffer from symptoms of Complex PTSD;

·        you suffer from obsessive compulsive disorder.  You have previously been in receipt of medication (Xanax) for symptoms of anxiety and traumatisation;

·        there is a nexus between your sexual abuse as a child, being bullied at school and feelings of anger and embarrassment and your history of violent offending behaviour;

·        you have not adequately worked through and resolved your symptoms of traumatisation and associated anger.

68While you do have a complex mental health history, it is not submitted that Verdins principles are applicable.  These factors are, however, relevant when considering your general circumstances. 

69Your counsel has submitted that you have shown insight into your violent conduct and its connection with your previous traumatic experiences.  This is consistent with Mr Cummins' opinion and is not disputed by the Crown.

70Your counsel has submitted that your formative years were impacted by bullying, severe physical trauma, sexual abuse and family violence and that your background is a significantly relevant factor.  I accept that your childhood was traumatic and had an impact on your personal development.  There is a connection between your traumatic experiences and your recourse to violence.  The relevance of this trauma does not diminish over time, notwithstanding your criminal history.

71I accept that the principles of Bugmy v The Queen[2] are enlivened in your case and that this is a mitigating factor on your plea.  The prosecution does not dispute this submission.  Your moral culpability should be reduced accordingly.  The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and not entirely eliminated.  This is counter‑balanced, however, by the need for community protection, which remains a relevant sentencing consideration, particularly in the context of your criminal history.

[2](2013) 249 CLR 571

72Mr Cummins opined that you 'genuinely felt guilty' and you acknowledge that there is no excuse for your offending.  You have demonstrated significant insight into your problematic behaviour and accept the issues that need to be managed upon your release, will reduce your risk of reoffending.  In those circumstances, I consider that although it is belated, you have developed genuine remorse and I have taken that into account in your favour.

73Notwithstanding your criminal history, your counsel has submitted that your prospects for rehabilitation are reasonable.  You have identified the connection between your offending and feelings of jealousy and inability to manage your emotions.  You should be able to benefit from receiving mental health treatment and are motivated to participate in whatever treatment is offered.  Further, that following your last term of imprisonment, you were selected to go to the Transition Centre where you furthered your vocational skills.  You then returned to employment and completed your parole.  You have a strong history of employment and hope to work upon your release.

74The prosecution does not accept this assessment, as your current offending took place as a result of anger and in the context of the involvement of drug use.  Your prospects are dependent on accessing appropriate mental health support and a complete abstinence from drug use, which is a driving force for your offending.  The prosecution position is that unless you can improve these areas in your life when you return to the community, your prospects are guarded.

75While you are not to be punished again for your past offending, your criminal history is a relevant factor when considering your prospects of rehabilitation.  You previously had an issue with alcohol abuse and have ceased your alcohol consumption.  You had also ceased your drug use, until your relapse into the use of opiate and buprenorphine as a result of your most recent injury. You have expressed an interest in engaging in appropriate mental health treatment and abstaining from drug use upon your release. Clearly, remaining drug free and dealing with your anger management are important factors when considering your capacity to rehabilitate.  It is in your own interest to do so when you return to the community.  If you are able to achieve and maintain these goals, I accept that your prospects will improve.

76However, prior to your last release, you were seen as someone who made good progress engaging in prison programs.  You entered the Transition Centre in preparation for a more beneficial return to the community.  Regrettably, this did not prevent your subsequent serious offending.

77Given your risk assessments provided by Mr Cummins, in the context of your history, I am cautious as to your prospects of rehabilitation.

78A term of imprisonment for your offending is the only appropriate disposition.  In that case, you are to be sentenced on Charge 2 as a serious violent offender.  While the principle of community protection is a highly relevant consideration for all charges, it becomes the principal purpose for which the sentence on this charge is imposed.  The prosecution does not, however, seek a disproportionate sentence in your case.

79I take into account the maximum penalty for these offences.  The principle of totality needs to be considered and I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct in the context of your relevant plea material.

80Balancing these factors as best I can, I sentence you as follows:

Charge	Offence	Sentence	Cumulation
Charge 1	Common assault	4 months	NIL
Charge 2	Threat to kill	9 months	3 months
Charge 3	Intentionally cause injury	3 years	1 year and 6 months
Charge 4	Assault with intent to commit sexual offence	3 years and 6 months	BASE
Charge 5	Common assault	9 months	3 months
Total Effective Sentence		5 years’ and 6 months’ imprisonment
Non-Parole Period		3 years’ and 8 months’ imprisonment
S6AAA		7 years’ imprisonment with a non-parole period of 5 years’ imprisonment
Pre-Sentence Detention		768 days

81HER HONOUR:  Mr Casey, were there any other orders sought?

82MR CASEY:  No.

83HER HONOUR:  All right, and Ms Sharpley, is there any issue with the sentence, as in - - - 

84MS SHARPLEY:  No, Your Honour.

85HER HONOUR:  - - - did you get that?

86MS SHARPLEY:  I did get it, thank you.

87HER HONOUR:  All right. Mr Casey, do you want me to go through it again?

88MR CASEY:  No, no matters to go through.

89HER HONOUR:  All right, thank you very much.

90HER HONOUR:  I'll give you, Ms Sharpley, a chance to have a word with Mr Reid before we cut the link.

91MS SHARPLEY:  Thank you, Your Honour.

92HER HONOUR:  I'll excuse Mr Casey.

93MR CASEY:  Thank you, Your Honour.

94HER HONOUR:  I'll just remind you that my associate and tipstaff will be in the court but we're happy just for you to have a short chat to him.

95MS SHARPLEY:  Thank you.

96HER HONOUR:  Can I thank you and could I thank Mr Hammill for all the work that you've done in the preparation of this matter, it's been going on for some time. I'm glad for everyone that it's finalised.

97MR CASEY:  I'll pass that on to Mr Hammill.

98HER HONOUR:  I'll leave the bench.

99MS SHARPLEY:  Thank you, Your Honour.

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