Director of Public Prosecutions v Reynolds (a pseudonym)
[2022] VCC 1070
•11 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY REYNOLDS (A pseudonym) |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2022 and 24 June 2022 | |
DATE OF SENTENCE: | 11 July 2022 | |
CASE MAY BE CITED AS: | DPP v Reynolds (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1070 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Intentionally cause injury – Threat to kill – Family violence – High moral culpability – Good prospects of rehabilitation – Victim attitude – COVID-19 pandemic.
Legislation Cited: Sentencing Act 1991 ss; 5, 6(f); 6E; 6AAA.
Cases Cited:Boulton v The Queen [2014] VSCA 342; Bradshaw v The Queen [2017] VSCA 273; Byrne v The Queen [2020] VSCA 289; Kalala v The Queen [2017] VSCA 223; Pasinis v The Queen [2014] VSCA 159; R v Cockerell [2001] VSCA 239; R v Hester [200] VSCA 298; R v Tiburcy [2006] VSCA 244; Rivera v The Queen [2020] VSCA 5; Rossi v The Queen [2021] VSCA 296; Smith v The Queen [2020] VSCA 159; Worboyes v The Queen [2021] VSCA 296;
Sentence: Imprisonment for a period of 10 months and 12 days. Community Corrections Order for a period of 2 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. James | Office of Public Prosecutions |
| For the Accused | Mr R. Bhattacharya | Ann Valos Criminal Law |
HER HONOUR:
1Gregory Reynolds[1] you have pleaded guilty to one charge of intentionally cause injury and three charges of make threat to kill.
You have also agreed to this court hearing and have pleaded guilty to the summary offence of unlawful assault.
[1] A pseudonym.
2The maximum sentence for intentionally cause injury and threat to kill is 10 years imprisonment and for common assault it is 15 penalty units or 3 months imprisonment.
Circumstances of the offending
3The full circumstances of your offending are comprehensively set out in the summary of prosecution opening, dated 14 June 2022 and marked as Exhibit A. I sentence you on this basis.
4In brief, the victim of your offending is your wife, Sophie Reynolds.[2] You have been together for close to 2 decades. At the time of your offending you had a 16 year old daughter, Emily Reynolds[3] and 13 year old son, Thomas Reynolds.[4] You now also have a third child, a son born subsequent to your offending in May 2021.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
5On 19 July 2019 you and your wife, Ms Reynolds, went to a 50th birthday party at a pub in Werribee. You both drank alcohol over the evening and became intoxicated. At around 1.22am on 20 July 2019 you saw Ms Reynolds talking to a man near the toilets. The man followed her into the disabled toilet and a security guard asked them to leave. What then followed was a prolonged and violent attack upon Ms Reynolds, commencing inside the hotel and continuing on the street, in the car, and both outside and inside your family home. The entirety of this conduct is relied upon in relation to Charge 1.
6Your acts are outlined in detail in the opening and can be summarised as follows: In the beer garden, you punched Ms Reynolds in the face; as captured on the CCTV footage that was played in court. She stumbled backwards and you yelled and swore at her. As Ms Reynolds stood at the front passenger side of the car with the door open, you punched her in the face. Consequently she stumbled backwards, spun around and fell to the ground. Ms Reynolds got up and sat at a street bench. You approached her and punched her twice to the head and she fell to the ground again.
7At this stage, others including Ms Danielle Ottaviano and Ms Eden Alagona saw what had happened and went to help Ms Reynolds. They called 000. Ms Ottaviano remained with Ms Reynolds and you approached her. You swore at her and threatened to kill her. This is the basis of summary offence charge of unlawful assault. The security guard escorted Ms Ottaviano away and also called 000.
8You put Ms Reynolds’ legs inside the car and entered the driver’s seat. In the car you gave her another blow to the head. You started driving the car at a fast rate of speed, hitting speed humps heavily. Ms Reynolds, who was unrestrained in the car, ended up in the footwell of the front passenger side of the car where you continued to strike or kick her; grabbed her hair and banged her face into the dashboard.
9Outside the house, you choked Ms Reynolds with your hands causing her to lose consciousness. As she regained consciousness you dragged her into the house. You removed her clothing, leaving her in underwear, and continued to assault her, including choking her with a belt, causing her again to lose consciousness.
10Your children were woken by the noise. Both made VARE statements. At the request of the prosecution I have watched both these videos.
11You grabbed a knife from the kitchen and threatened to kill Ms Reynolds, which is the basis of charge 2, make threat to kill. You yelled if anyone called the police you’d kill everyone, which is charge 3, make threat to kill. Your children, obviously petrified and distressed, hid in a bedroom and called family friends for help.
12When they arrived, Ms Reynolds was sitting against the front door trying to prevent you from opening it. You were standing inside the door, holding a knife and yelling that you were going to kill her, which is the basis of charge 4, threat to kill.
13Your family friends intervened and called 000. The recording was played in Court. Just before 3am police arrived and you were arrested.
14An ambulance was called and Ms Reynolds was conveyed to hospital, where she remained for some 9 days, with facial fractures, eye trauma, memory and cognitive symptoms. The full extent of her injuries are canvassed in the reports of Dr Rowse which were exhibited at the plea hearing (Exhibit F). I have also seen and considered photographs of some of Ms Reynolds’ injuries (Exhibit D and E)
15You were interviewed by the police where you made substantial admissions to what you’d done. You also indicated that you considered your actions were justified because of your wife’s perceived infidelity. Your answers are extracted in detail in the opening. At the request of the prosecution I have also watched your record of interview (‘ROI’) in full.
Gravity of the offending
16Your offending is obviously serious. This was a violent, protracted and vicious assault on your wife. Your behaviour was completely unacceptable and cowardly. Your answers in your ROI betray your toxic attitude at the time and your sense of justification and entitlement in what you did.
17In assessing the seriousness of the intentionally cause injury charge it is relevant to consider a number of matters, including your intent at the time which was to punish a perceived infidelity. I agree that this is ‘expressive of the very worst of male attitudes towards women’.[5] You acted alone in your assault; this is not a case where you were acting in company with others. Your assault on your wife was prolonged, taking place in multiple locations including the family home. You caused her multiple injuries requiring some 9 days hospitalisation and follow up care. I have already referred to her numerous injuries, including extensive bruising, injury to her eye socket and other facial fractures. Part of your assault also took place before your young children which I regard as an aggravating feature of your offending.
[5] Kalala v The Queen [2017] VSCA 223, at [62].
18On all of these measures, this was serious offending and your moral culpability has to be viewed as high. Your attack on your wife, where twice you caused her to lose consciousness by choking her, is truly shocking. I accept that your offending sits at the high end of the scale of objective gravity, given the nature of the injuries and the manner and circumstances of your offence.
19The threats to kill are also serious. They were repeated, as reflected in the separate charges, directed at, or made in the presence of your wife and children, and a weapon was used to reinforce the threats. I note that while you brandished the knife you did not use it against any person, though your daughter does describe you as holding it like they do in the movies; seemingly with your hand clutched around the knife and the blade sticking out.[6] In respect of these charges, a serious violent offender regime applies. Therefore s6E of the Sentencing Act must be regarded as moderating and limiting totality, though the principle remains relevant, as does proportionality. In determining the length of sentence to be imposed on these charges community protection must be the principal sentencing purpose. In the circumstances, I do not propose to impose sentences which are disproportionate to the gravity of each offence considered in light of its objective circumstances.
[6] VARE of Emily Reynolds Q/A 163.
20In your case, I accept that specific and general deterrence, denunciation and just punishment are prominent sentencing factors. As stated in Smith v The Queen[7]:
…The rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking. Those who engage, or contemplate engaging, in such violence – in whatever context – should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.
[7] [2020] VSCA 159, [7].
21The prevalence of family violence also makes community protection a significant sentencing consideration and general deterrence of fundamental importance.[8]
[8] Pasinis v The Queen [2014] VSCA 97, [53].
22Your Counsel, Mr Bhattacharya, properly conceded that your offending is very serious. You were angry, in a poor state of mind and had been drinking heavily that night, as you told police. This of course is no excuse for your offending. Your Counsel accepts that you sought to justify your actions in your interview. However he submits that now, some 3 years down the track, you are a very different man. You suffered a range of consequences for your actions and you have done a lot of work on yourself, resulting in self-reflection, awareness and change.
Subsequent events
23After your offending you were immediately granted bail. On 1 August 2019 Family Violence Intervention Orders were made with full terms. You lived outside the family home for several months.
24On 29 January 2020 the intervention order was varied to permit you to return to the home. This order expired on 22 January 2021.
25Child Protection were involved and you were permitted supervised child visits from November 2019. You went through an initial period of not seeing your children at all. At the end of May 2020 child protection involvement ended.
26You and your wife have reconciled. She subsequently gave birth to your third child, Samuel Reynolds,[9] born in May 2021. In a letter dated 7 July 2022, your wife has informed the Court that she is again pregnant. Dr Sharif Ahmed confirms in a letter of 7 July 2022 that your child’s expected due date is February 2023.
[9] A pseudonym.
Victim Impact
27The Court received victim impact statements from Ms Ottaviano and Ms Alagona.
28Ms Ottaviano observed part of your assault on your wife as it took place outside of the hotel. She went to help your wife and you threatened her. She called 000 for assistance. Understandably she has been affected by your actions. She writes that she felt too anxious to even leave the house after the incident and she wouldn’t go out much as she was afraid that you would enact the threats that you had made against her. Ms Alagona, a friend of Ms Ottaviano’s, also observed some of your actions outside the hotel that day. What she saw was clearly distressing and she was also concerned for the welfare of your wife and that of her friend. She states: ‘when the incident happened, I honestly thought this lady was going to be dead. I was scared and fearful for her and what the outcome would be. It made me feel emotionally uneasy and sick to my stomach.’
29I take into account the impact of your offending. I also received letters from your wife Ms Reynolds and your daughter, which I will return to shortly. As I’ve already noted, at the request of the prosecutor, Ms James, I have viewed the video statements made by your children soon after your offending. It is clear, and I accept, that your offending significantly impacted them at the time. Your daughter, then 16 years old, describes how she saw you throwing her mum around the house. She saw the damage you caused her and she was too scared to go out to help her mother. At the time, your daughter was asking herself: ‘what if dad kills her … or stabs her and then he comes after my brother and I?’ She described what happened as heartbreaking; she was concerned about seeing her brother so upset; she was angry at you and states ‘I hate my dad so badly for it because of how badly he’s done this to my mum’. Your son, only 13 at the time, saw you with the knife. He didn’t see much of what happened but he describes the harrowing noises he could hear: loud bangs, punches and the wall vibrating. He was thankful to god that you didn’t use the knife or kill his mum. Mr Reynolds, no child should ever be exposed to this.
Plea of guilty and remorse
30Your case was set down for trial and resolved shortly before the trial was about to proceed. The only issue to be litigated was whether Ms Reynolds had suffered a serious injury. On 23 October 2019 you had offered to plead guilty to a charge of intentionally cause injury which ultimately is how your matter has resolved. In all the circumstances, I regard your plea as an early one and one that warrants a substantial discount in sentence for its utilitarian value. Importantly, Ms Reynolds and your children were not made to relive the terrifying events in the witness box. No other civilian witness has been cross examined. Further, I accept that your plea, entered during the pandemic, should result in a perceptible amelioration of sentence.[10]
[10] Worboyes v The Queen [2021] VSCA 168; Rossi v The Queen [2021] VSCA 296.
31I also accept that your plea is indicative of remorse. While I accept you made admissions in your ROI to the acts that you had committed, I do not consider that this automatically translates into remorse. As I’ve already noted, in your interview you display a self-justifying, reprehensible and entitled attitude towards your wife, and it might be said, women in general. You told the police that you were ‘keeping [your] wife accountable for the shit that she’s done’.[11] That you were ‘just given her a good tyke’’;[12] just to ‘stamp my authority in the fuckin household.’ When shown the photos of some of her injuries you told the police that you ‘really don’t care’.[13] However, I do accept that you have reflected on your attitudes and on your offending and that over the last couple of years you have developed and expressed genuine remorse. Your friend of some five years, Hemi Maata[14] states that you have ‘shown remorse and want nothing but to be an example to your 3 children and your family’.[15] Rawiri Harawira[16] your Group Leader at church, states that you are ‘incredibly remorseful for what [you have] done and believes this is reflected in your efforts to improve yourself as a father, husband, friend, and community member’.[17]
[11] Record of Interview of Gregory Reynolds dated 20 July 2019; Q/A, [16]
[12] Ibid, [88].
[13] Ibid, [215].
[14] A pseudonym.
[15] Exhibit 2.
[16] A pseudonym.
[17] Exhibit 10.
Personal circumstances
32You were born in Wellington, New Zealand in June 1984 and you are of Maori descent. You have 3 brothers and grew up in a happy and well-supported family. Your mother, Patricia Reynolds,[18] provided a reference to the Court where she states that violence was not part of your family life and that you and your brothers were bought up by parents who taught you respect and expected you to know right from wrong.[19] You maintain daily contact with your parents who reside in New Zealand and also speak to one of your brothers regularly.
[18] A pseudonym.
[19] Exhibit 7.
33You apparently have no history of behavioural issues as a child. You have no previous contact or involvement with mental health services or any documented or self-reported history of mental illness.
34You left school at 15 to pursue a carpentry course which ultimately didn’t work out. At 19 you met and started a relationship with your wife, Ms Reynolds. She soon thereafter became pregnant with your eldest daughter. You were only around 19 years of age at the time. You worked full time for most of this period in a number of jobs, including at the abattoirs and as an attendant at service stations. A few years later your son, Thomas, now aged 16, was born. At the age of 25 years you secured your first long term employment, working in warehousing at a steel distribution centre. You obtained forklift and crane licences.
35At 29 years of age you and your family decided to move to Australia in pursuit of better opportunities. You soon secured work at the Toyota factory in Altona as a panel beater and spray painter. In 2017 the factory closed down. For the next few years you worked at different labour-hire firms. Since August 2021 you have had a permanent role at your current work where you do steel fixing for pre-fabricated buildings.
36In May 2021, as I’ve already mentioned, your wife gave birth to your third child, Samuel, and you are both expecting your fourth child at the end of February 2023.
Factors in mitigation
37I take into account the additional factors in mitigation that were advanced on your behalf.
Good character
38Your prior history is confined to a driving matter that was heard in New Zealand some 19 years ago where you received a modest fine. You have no other criminal history. There has also been no further subsequent offending.
39The Court received a number of references that attest to your good character.[20]
[20] Exhibits 2, 3, 8 and 9.
40You are also heavily involved in the Pentecostal Church. You were invited by the Church to become one of their Leaders whose role it is to engage closely with new families entering their church. You also completed an online course, ACC Volunteers Essential, to better equip yourself with the relevant skills needed for that position.[21]
Delay
[21] Exhibit 5.
41This matter has now resolved approximately 3 years after the incident. I accept that there has been a significant delay that is not attributable to you.
42The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. As the higher Courts have previously expressed:[22] First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.
[22] R v Cockerell [2001] VSCA 239 per Chernov JA; R v Tiburcy [2006] VSCA 244.
43In your case, I take into account that this matter has been hanging over your head for a considerable period of time now. In addition and importantly, you are in a position to demonstrate to the Court that you have taken steps to rehabilitate and to change.
Conditions in custody
44Your Counsel sensibly conceded that a term of imprisonment is required in this case. He submitted that any term of imprisonment is likely to weigh more heavily on you given the pandemic circumstances and the ongoing limitations in the prisons. At the plea hearing it was confirmed that an initial 7 day quarantine period is still required and I take such matters into account.
45Your Counsel also submitted that given you are a New Zealand citizen, it is very likely that the Department of Immigration will cancel your current visa and/or deport you.[23] A sentence of 12 months imprisonment or more triggers mandatory cancellation provisions of the Migration Act and places you at risk of deportation. A lesser sentence might also have consequences for you. As discussed at the plea hearing, in your case there really is no certainty as to action or outcome. Any mandatory cancellation would carry with it a right of legal review or challenge with an unknown outcome. In the circumstances, I’m prepared to accept that given you are a non-citizen, the uncertainty of your situation, is a matter that weighs on you.
[23] Guden v R [2010] VSCA 196.
Prospects of rehabilitation
46Your Counsel submits that you present with excellent prospects of rehabilitation.
47As already noted, you were initially removed from the family home and child protection intervened in your family. Your children were subject to Child Protection Intervention due to their exposure to family violence and were placed on a 3 month Family Preservation order. This order lapsed on 29 April 2020 due to no further protective concerns arising. I received a letter from Aaron McDonald, Child Protection Practitioner, who previously worked alongside you. He states that you had full engagement with Child Protection and were able to adhere to the conditions of the Children’s Court order. He also notes that you engaged in a men’s behaviour program which provided positive feedback of your engagement.[24]
[24] Exhibit 6.
48In October 2019 you commenced the Relationship Matters’ Men’s Behaviour Change Program, which concluded in April 2020. You attended 17 out of 20 program sessions. Covid affected your ability to complete all the sessions but you did also engage with four case management phone calls between this period. This case management provided further support and education around family violence in the absence of the group program. The program assists men to explore strategies, ideas and concepts to maintain non-violent and respectful behaviours at home and in their personal relationships.[25]
[25] Exhibit 4.
49You have regularly attended your Pentecostal Church and have engaged in many of the church activities including their connect groups and men’s services. In the last few months, you have become a group leader and you have also in the last year served in their media team. A pastor at that church provided a reference where he states he has seen you grow over the past 3 years and describes you as driven and as having a strong desire to be the best you can for your family and those around you.[26]
[26] Exhibit 2. See also Certificate of Completion of ACC Volunteers Essentials 2nd Edition through open learning issued on 21 April 2022 (Exhibit 5).
50In her reference to the Court your mother also observes that since your offending you have turned your life around with a stable job, the only income coming into your family, and the love you have for your children. She also believes your family has found the guidance it needed from the church. Your friend Monica Houghton[27]in her reference states that you have acknowledged your mistakes and have learnt from them and made changes to become a better person.[28] Your friends Rochelle[29] and Mick Tahu[30] also provide a letter of support where they indicate they are indebted to you for the support you have given them. Ms Tahu describes that her husband perpetrated domestic violence in their home and that you reached out to him and gave him tremendous support by helping him take accountability for his actions. Rawiri Harawira, who offers you mentoring and support through the church, states that you have shown a steadfast and resolute demeanour in moving past your mistakes in a constructive and successful manner.
[27] A pseudonym.
[28] Exhibit 8.
[29] A pseudonym.
[30] A pseudonym.
51There’s no suggestion that you ever breached the intervention order that was previously in place or your bail conditions.[31]
[31] It is noted that the Court was informed of a misunderstanding that arose in relation to your bail conditions.
52I consider that your prospects of rehabilitation are enhanced by your strong family support, your solid work history, your recent employment and your work and connections with the Church. You were assessed by the Mental Health Advice and Response Service (MHARS) on 27 June 2022 and they note that you expressed remorse for your offending behaviour and identified that your offending behaviour has had a negative impact on yourself and your family. You also displayed insight into the need to reach out to your church Pastor or a GP if you needed further assistance and your judgment appeared to be intact and your attitude was pro social.
53I accept that you present with very good prospects of rehabilitation, as you have demonstrated over the last few years.
Victim attitude
54Your daughter, Emily Reynolds, one of the victims of your offending who witnessed part of the assault that night, wrote a letter to the Court on behalf of all of her siblings.[32] She indicates that this matter has brought ‘so much strain in our family.’ She knows you have full regret; you gave them time to heal; and she believes you have worked hard to better yourself. You love spending quality time with your family. She describes you as a devoted husband and father. ‘Our hearts were broken three years ago, but it was also mended, with so much love, peace and forgiveness.’ She pleads for you to remain with the family.
[32] Exhibit 11.
55Your wife, the primary victim of your offending, Sophie Reynolds has also provided two letters to the Court.[33] In her first, she states that she knows and believes that you are full of remorse for your offending. When you returned to the family home she saw ‘a huge change in [you] as a husband and a father.’ You were committed to your counselling, to volunteering with the church, attending community events and devoting yourself to your children. You have attended every appointment and court date. Even on short notice you have managed to negotiate this with your employers. You are the sole financial provider of the family. ‘My husband has taken everything in to accountability and has stuck with it. He has never committed family violence in our home nor in public. This event surely changed my husband to be the better man he is … He is a very good and loving man, father and husband to me. Our children and I love him dearly.’ In her most recent letter to the Court she asks for some leniency or mercy to be extended. You have ‘fully turned [your] life around’; she is pregnant with your fourth child; she has concerns because the baby’s heart rate is low and she has diabetes; you have been an invaluable support; you are the sole income earner and she and your children are seeking work, including second jobs, so as to try and manage without you.
[33] Exhibits 12 and 13.
56In sentencing you I have had regard to your wife and daughters statements and to their circumstances. I have proceeded cautiously in considering this material, recognising that it is a known common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. Your wife and daughter’s statements are insightful. This is not a case, such as that in R v Hester[34] where your wife has forgiven you because of some distorted belief that she is partly to blame for what occurred or as some type of by-product of an ongoing violent relationship. While I accept the submission of Ms James that domestic violence captures a range of behaviours, on the evidence before me I am not satisfied that you have committed other acts of violence against your wife. It appears that your wife has forgiven you because you have demonstrated remorse, reflection and reformation.
[34] [2007] VSCA 298.
57I take into account the statements of your wife and daughter in assessing, in particular, your prospects of rehabilitation. However, I cannot decide your sentence based solely, or even principally, on their attitude. The Court appreciates that there is a real likelihood that imprisoning you will cause additional hardship, burden and distress to your wife and family. Your wife describes you as a loving and committed partner and father. You are the sole income earner and you have three children together, aged between 1 and 19 years and are expecting a fourth. However, as was quoted in the case of Hester that I’ve just referred to ‘It must be understood that where an offence is committed it is committed against the community as a whole and the community is entitled to expect that the offender will be punished, that the community will be protected to the extent that the criminal justice system can do so, and that any penalty imposed will serve to deter others who are minded to offend against the community’.[35] While I take into account all the mitigatory factors in your case, there remains a very high public interest in punishing family violence.
[35] Ibid, at [136].
Sentencing principles
58The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community. As I’ve already stated, denunciation and general deterrence loom large in this case. Also, on the counts of threat to kill I must treat community protection as the principle purpose for which the sentence is to be imposed.
59I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty. It is difficult to gauge more than a very general yardstick from so-called comparable cases given the wide range of offending conduct which can constitute these offences and the personal circumstances relating to individual offenders. In Kalala v R[36] the accused pleaded guilty to incitement to murder his wife, which was punishable by life imprisonment. In Byrne v R[37] at the time of sentence the accused was serving a number of sentences, including 12 years for an attempted murder. In Rivera v The Queen[38] the accused had an extensive prior criminal history including for reckless cause injury, intentionally cause injury, make threat to kill and aggravated burglary and only a few days prior to his offending he’d been placed on a community corrections order. I have read and considered the cases referred to by the parties and to an extent they have assisted me, particularly in their pronunciation and application of general principles.
[36] [2017] VSCA 223.
[37] [2020] VSCA 289.
[38] [2020] VSCA 5.
60I have also taken into account the principles of parsimony, proportionality and totality in your case, subject to relevant 6E considerations that I’ve already referred to.
61There was no dispute between the parties that a term of imprisonment is warranted, given the seriousness of the offending. The dispute centred around the appropriate term and structure of such a sentence. The prosecution submit that the only appropriate sentence is a substantial term attracting a non-parole period. Your Counsel submits that a sentence combining a term of imprisonment and a community corrections order (‘CCO’) is appropriate. I had you assessed for a CCO and you were assessed as suitable. You were considered to be open and forthcoming with information and demonstrated some insight and remorse into your offending behaviour. You were able to identify and articulate learnings from a Men’s Behaviour Change Program.. It confirmed also that you are currently employed full time in the construction industry; you have substantially reduced your alcohol intake and that you reside with your wife and three children. You were assessed as being of low risk of reoffending.
62I agree that the only just and appropriate sentence in your case is one of imprisonment. I recognise that serving a prison sentence for someone like yourself, now in your late 30s with no prior criminal history or experience of custody, is a severe sanction. I also accept that you will no doubt be concerned and anxious for the welfare of your family, particularly during your wife’s pregnancy.
63I have given very close and anxious consideration to whether a combined sentenced can reflect and achieve all sentencing purposes in your case. I note the Court of Appeals comments and guidance offered in Boulton v The Queen[39] case -
Even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment if coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending directed at rehabilitative purposes.
[39] Boulton v The Queen [2014] VSCA 342.
64As the seriousness of the offending increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending[40].
[40] Bradshaw v The Queen [2017] VSCA 273.
65I have concluded that the purposes for which sentence is to be imposed in your case can be best accommodated by a combination sentence which will involve you serving a term of imprisonment and then being released on a lengthy CCO with a number of onerous conditions. I consider that a combined sentence can provide substantial specific and general deterrence. The CCO component is capable of being very punitive but will also allow you to continue in your rehabilitative efforts, which is in your and your family’s interest and in the long term, best protects the community.
Sentence
66Weighing up all relevant matters, you are convicted and sentenced as follows: charge 1, nine months imprisonment, plus a community corrections order of two years and eight months; charge 2, five months’ imprisonment, plus a community corrections order of 15 months; charge 3, six months’ imprisonment, plus a community correction order of 15 months; charge 4, 5 months’ imprisonment, plus a community corrections order of 15 months.
67Now these are four separate community correction orders. The conditions will operate concurrently unless I direct otherwise, which, can I make clear, I do not and will not so direct. These orders, and their conditions, will operate concurrently and not cumulatively. Serious violence offender provisions apply here, which affect or limit the Court’s ability to impose aggregate sentences. So these are individual sentences, but they will operate – that is, the orders – will operate concurrently.
68As for orders of cumulation on the prison terms, I direct the following orders of cumulation: 14 days on charge 2, 14 days on charge 3 and 14 days on charge 4 be served cumulatively on charge 1, which is the base sentence. This should arrive at a total term of imprisonment of 10 months and 12 days; I will have the parties check this. It will then be followed by a CCO, the longest order I have imposed is two years and eight months.
69In relation to the summary offence of common assault I convict and fine you $500.
70Pursuant to 6AAA but for your plea of guilty I would have sentenced you to 3 years and 8 months with a non-parole period of 2 years and 6 months.
71As for conditions of your orders, on charge 1, the 2 year and 8 month CCO, I propose the following conditions. First, there are mandatory conditions that apply, which I need to take you through. Once you are released from this term of imprisonment, within two days, you are required to attend upon Community Corrections.
72You are also, as part of your mandatory conditions, Mr Reynolds, you will be required, then, to report within two days. You also must not commit any offence during the period of the community corrections order. They are separate orders, to run together, concurrently. The longest period is two years and eight months. You must not commit an offence within that period of time that is punishable by imprisonment, from the date it commences. So the date of your release is the date of commencement; do you understand?
73You must notify a Corrections officer of any change of address or employment within two clear working days after the change. You must not leave Victoria without first getting permission to do so from a Corrections officer. You must obey all lawful directions of a Corrections officer; do you understand?
74In terms of additional conditions, I also propose the following. First of all, I am setting 250 hours of unpaid community work. Now, I will determine that 150 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of that condition. So, treatment that you do will be offset, and you have been permitted 150 hours, okay?
75You are also required to be under the supervision of Corrections for that period of time, the two years and eight months. You are required to engage in programs that address offending behaviour.
76And I am also proposing to set at least one occasion; it may not continue, but I do want you before me for judicial monitoring, upon your release, and I would approximate what I am after is, maybe, monitoring after, say, three months. So we are going to have an approximate date, so that we can obtain one, and you will be aware of what that date is, where you are required to attend before me for the purpose of monitoring, so that I can see how you have transitioned back into the community. Okay?
77So, they are the conditions. Now, in relation to the orders on Charges 2, 3 and 4, the conditions that will apply on each of those orders are supervision and to engage in programs. I am not proposing any other conditions, because it is largely provided for by the order on Charge 1, which is the longest order. So, the other orders have supervision and program conditions that attach to them. Do you understand? The same mandatory conditions attach. If you end up breaching an order, then effectively you have breached all of them, okay? Now, I will obtain the judicial monitoring date.
78Pursuant to s6(f) of the Sentencing Act I declare that you have been sentenced as a serious offender on charges 2, 3 and 4 and I cause that declaration to be noted in the records of the court.
79Ms James, I cannot see you on the screen. I can see your name though. Are you still there?
80MS JAMES: Yes, Your Honour - I just needed to turn the screen off for coughing.
81HER HONOUR: That is okay. Look, does that - I just want to make sure that my sentence and my intention is clear. There are the four charges on the indictment for which I have imposed sentences and made orders of accumulation and so forth. They are separate matters, as I have indicated, because of those provisions that prohibit aggregating sentences where serious offender provisions apply but the orders will run concurrently. So I take it that you heard all of those conditions that I have imposed and that is effectively what I expect: Mr Reynolds will serve approximately 10 months and 12 days. He will be released on a number of orders, but the conditions will run concurrently. The lengthiest order is on charge 1.
82MS JAMES: Yes, that is my understanding, Your Honour.
83HER HONOUR: Okay. Is there anything further that I am required to do? Any forfeiture disposal orders? I do not believe that there are, but I just cannot recall.
84MS JAMES: No, no, Your Honour - there were none filed as far as I recall. I will just confer with my instructor. Yes, no further statutory matters required, Your Honour.
85HER HONOUR: Thank you.
86MS JAMES: As far as those orders go, I am sorry.
87HER HONOUR: That is all right. That just leaves a date, which I think we will obtain for maybe August? I am going to just obtain a judicial monitoring date, as I indicated, Mr Reynolds, where you will attend before me. It will be a date in September of next year. It will allow you some time on the order. I will receive a report which will indicate effectively how you are going on that order, okay? I will make that for 4 September of next year, 9.15 am. That can be and will be by video link. You will not be required to attend at court on that occasion, okay? You will just be required to attend on video.
88Does that suit you, Mr Bhattacharya? You or your instructor - sometimes practitioners do not attend but do you want to raise anything?
89MR BHATTACHARYA: No, Your Honour.
90HER HONOUR: Okay. There is nothing further so in a moment I will adjourn the court. I just wanted to thank Ms Reynolds, your wife, again for attending. I reiterate that I have taken into account and I have considered the letters that you provided and as I have stated, I can appreciate that this is very difficult. But hopefully you have been able to follow my reasons and the need really to centre on accountability here. I can see your husband nodding his head and appreciating, it seems to me, and understanding that there is a need for accountability and then movement, which he has obviously been making efforts towards. Okay? So if I could ask security if we could - once we adjourn - can Mr Reynolds remain in the dock to afford his wife a moment? Any difficulty with that?
91OFFICER: No, that is fine, Your Honour.
92HER HONOUR: Thanks very much. We will give you that moment. You can also speak to Mr Bhattacharya in the event that you did not follow part of this sentence, okay? Otherwise I will see you again sometime next year. Okay. Thank you, Ms James, thanks, Mr Bhattacharya.
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