Director of Public Prosecutions v Robinson

[2021] VCC 1355

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-19-01473
CR-21-00543

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER ROBINSON

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JUDGE:	Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2021, 1 September 2021
DATE OF SENTENCE:	15 September 2021
CASE MAY BE CITED AS:	DPP v Robinson
MEDIUM NEUTRAL CITATION:	[2021] VCC 1355

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Contravene family violence safety notice intending to cause harm or fear for safety – arson – attempt to pervert the course of justice – contravene family violence intervention order intending to cause harm or fear for safety – arson and attempt to pervert the course of justice committed in context of family violence – relevant prior criminal history – guilty plea – delay – drug and alcohol issues – mitigating effect of disadvantaged upbringing, childhood trauma and mental health issues – reduction in moral culpability – reduction in weight to be given to deterrence – time in custody more onerous – increased need for community protection – impact of Covid-19

Sentence: Total effective sentence: 5 years and 3 months with a non-parole period of 3 years – s6AAA: 8 years with a non-parole period of 5 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Jordan O’Toole	Office of Public Prosecutions
For the Accused	Mr Amit Malik	Valos Black

HER HONOUR:

Introduction

1All right, so Mr Robinson, you have pleaded guilty to one charge of contravening a family violence safety notice intending to cause harm or fear for safety (charge 1), one charge of arson (charge 2), one charge of attempt to pervert the course of justice (charge 3), and one charge of contravening a family violence intervention order intending to cause harm or fear for safety (charge 4). The maximum penalty for charge 3 is imprisonment for a period of 25 years, for charge 2 is imprisonment for a period of 15 years, and for charges 1 and 4 is imprisonment for a period of 5 years, or a fine of up to 600 penalty units.

2These charges arise from a series of incidents which occurred between 17 and 18 January 2019; 8 February and 26 June 2019; and 13 April and 21 April 2020. You were aged between 28 years of age and 30 years of age at the time of the offending.

Circumstances of the Offending

3The full circumstances of the offending are set out in considerable detail in the ‘Prosecution Opening for Plea’ dated 19 May 2021 which was tendered as Exhibit A on the plea. However, in shorter compass, in 2017 yourself and the complainant in this matter were in an intimate relationship. That relationship ended in the first half of 2017, and then re-commenced in August 2018. Shortly after the relationship re-commenced, you moved in with the complainant. She was, at the time, residing in a unit she was renting from the Department of Health and Human Services.

4In early January 2019, the complainant was experiencing difficulties with your behaviour and, on the  morning of 17 January 2019, she attended an appointment with her doctor to discuss this. Later that same morning, the complainant called her sister and told her about the situation between herself and you. After this conversation, the complainant’s sister rang the police, and asked them to attend at her mother’s address to provide advice to the complainant about how to end the relationship with you and protect herself. Police attended at the address and spoke to the complainant. As a result of the conversation, the complainant started to make a formal police statement and provided the police members with her house keys so that they could enter her home and remove you from it.

5Police members attended the Ferntree Gully home at approximately 2.30pm on 17 January 2019. You were asleep in the main bedroom at the time. You complied with the police request that you leave the house and go with them to the Police Station, and at 3.39pm a Family Violence Safety Notice (‘the Notice’) was served on you at the Knox Police Station. The Notice included conditions that you not commit family violence against the complainant or her children; that you not approach, telephone or otherwise contact the complainant; and that you not be at, or remain within, 200 metres of the Ferntree Gully home. There was an exception which permitted you to attend the house to retrieve your personal property, but only if accompanied by a police member.

6From 4.08pm, you commenced to contact the complainant both via voice calls and text messages.  The first call you made to the complainant was from a private number, and she answered the call thinking it was the police. You said ‘what the fuck J?’ and the complainant ended the call. Shortly after this, the complainant arrived at the police station. During the hour for which the complainant was at the police station, you called her ten times, sent her a text message and left two voicemail messages. On two occasions a police member answered the phone, told you that you were breaching the Notice and to stop calling the complainant. You did not respond on either occasion, and ended both calls.

7The complainant then left the Rowville Police Station and returned to her mother’s address. Between 5.41pm and 9.51pm on 17 January 2019, you called the complainant at least 49 times and sent 12 text messages. Aside from being in breach of the Notice, some of those text messages were also abusive and threatening, referring to the complainant variously as a ‘cunt’  and a ‘slut’ and telling her ‘U take from me and I’ll take from u’ and ‘everything that happens from now on is in ur hands.’

8At 8.19pm you spoke with a friend of yours, Darren Robbins, and asked him if you could stay with him in Ferntree Gully. You told Darren that if you could not stay with him, that you were going to do something stupid. Mr Robbins sent you a text message at 8.43pm telling you that you could not stay with him.

9At approximately 9.00pm on 17 January 2019, the complainant, her sister and her sister’s husband, went to the Ferntree Gully property to collect some of the complainant’s belongings. Whilst there, the complainant noticed that a diffuser was smashed on the floor, and that your white Nike backpack was on the end of her bed.

10At approximately 9.50pm, you boarded a Belgrave-bound train from Ringwood Train Station. Whilst on the train you asked a person who you did not know if you could use his phone to make a call. The person, Callum Knight, gave you his phone and you attempted to call the complainant twice. You also sent four text messages to the complainant. Those four messages read:

§‘Deadset call me’;

§‘What the fuck cunt’;

§‘Call me’; and

§‘U don’t call back, im gonna set your house up’.

11At 10.09pm, you were captured by CCTV at Ferntree Gully Station, walking through the car park in the direction of the complainant’s home. Then between 11.35pm on 17 January and 12.18am on 18 January, you were captured on CCTV footage at the rear of the IGA Supermarket in Ferntree Gully, using an external power point to charge your mobile phone. During that time, you called the complainant a further 18 times. She did not answer the phone, and you left a further two voice messages at 12.04 am and 12.06am. In the first you threatened the complainant that she would have nothing by the end of the week, and the second message ended with you saying ‘you know what fucking happens to dogs that bark too much.’

12At 12.18am on 18 January you can be seen on CCTV leaving the rear of the IGA store. Shortly after that you attended at the complainant’s house and set it on fire. You retrieved your white backpack from the bedroom and left the property making no attempt to extinguish the fire. Forensic scientist, John Kelleher, later provided an expert opinion that the fire most likely started in the lounge room and possibly also in the meals area and kitchen; there were likely multiple points of ignition; the cause of the fire was the ignition of combustible material, such as furniture in the lounge room; and the source of the fire was by direct ignition by match or cigarette lighter. Ultimately, the fire took just over two hours to bring under control and caused approximately $221,000 worth of damage to the home. It also spread to a hedge, which was approximately one meter from the neighbouring property. This conduct constitutes charge 2 – arson.

13At 12.37 pm you were captured on CCTV footage returning to the rear of the IGA. You then called the complainant a further 12 times between 12.37am and 1.05am.  The complainant did not answer any of these calls.

14At 4.40am, police at the house saw a male appear from bushes about 100m from the property, and walk towards the property. However the male turned around and ran away and could not be located by police. The male matched your description and it is alleged by the prosecution that that male was you.

15At approximately 7.35pm on 18 January 2019, you were located and arrested at the Bayswater Railway Station. You were wearing the same clothing as you had been wearing when captured on CCTV footage on 17 January 2019, and were also carrying the white Nike backpack. Charge 1 on the indictment – contravention of a FVSN intending to cause harm or fear for safety – is a rolled up charge encompassing all of the telephone calls, voicemails and text messages made by you to the complainant between 3.39pm on 17 January 2019 and your arrest at 7.35pm on 18 January 2019.

16After being arrested you were transported to the Ringwood Police Station and interviewed in respect of the matters subject of charges 1 and 2 on the indictment. During the interview you said a number of things which were highly inconsistent with the evidence in this case, including CCTV footage and phone records. You told police that after leaving the Knox Police Station in the afternoon of 17 January 2019, you had caught a bus to Ringwood Railway Station, and then caught a train from Ringwood to Bayswater Railway Station. You said that you had stayed the night at Bayswater Oval until the following morning when you went to the Bayswater Library in order to get in contact with friends. You also told police that your phone was flat all day on 17 January 2019 and you were not able to charge it; that you did not contact the complainant at all on 17 January 2019 after being served with the Notice; you did not access or use anyone else’s mobile phone; and that you did not go to Ferntree Gully on 17 January after being served with the Notice, or on 18 January 2019.

17You have been on remand since your arrest for this matter. The incidents subject of charges 3 and 4 on the indictment have occurred whilst you have been in custody.

18On 22 January 2019, an Interim Family Violence Intervention Order (‘Interim Order’) was made by the Ringwood Magistrates’ Court, with you as the respondent, and the complainant as one of the affected family members. Conditions on the order included that you were not to contact the complainant by any means, and that you were not to get any person to do anything which you were not allowed to do under the Interim Order

19Between 8 February 2019 and 26 June 2019 you wrote five letters to the complainant, four of which reached the complainant via her mother’s address. The other letter – which was the fourth one you sent – was intercepted by prison authorities. Within those letters you:

(a)   requested that the complainant ‘withdraw everything’;

(b)   referred to needing the complainant to ‘drop these bullshit allegations’;

(c)   referred to the complainant requiring protection from people that want to hurt her;

(d)   referred to ‘not so pleasant’ people coming to see the complainant at her mother’s house;

(e)   asked the complainant not to ‘rat’ and told her that, if she does, people will come and see her ‘early’ and that’s the ‘risk’ the complainant takes; and

(f)    requested the complainant to say ‘that their [sic] wasn’t a bag their [sic]’; ‘I think he had it [the bag] already’ and ‘[I] don’t believe [he] could do it’ (referring to the complainant changing her evidence about your white Nike backpack having been on her bed on 17 January 2019).

20It is these matters in combination which form the basis of charge 3 – attempt to pervert the course of justice.

21On 30 April 2019, the Magistrates’ Court at Ringwood made a final Family Violence Intervention Order (‘IVO’) where you were the respondent and the complainant was an affected family member. The order was for a period of 12 months until 30 April 2020 and included a condition prohibiting you from contacting the complainant in any form.

22Between 13 April 2020 and the expiration of the order on 30 April 2020 you sent a number of letters to the complainant at her mother’s address. One of the letters contained a lengthy message professing your love for the complainant whilst at the same time blaming her for the loss of a pregnancy in 2018; advising her that you would be informing DHS of everything when the complainant attends court; and saying that you had given your lawyers details of her alleged improper parenting. You also threatened her that there was ‘only one way to fix it’ and that she was going to have to or she would ‘lose more than [she] had ever lost before’. The other letters contained sexualised remarks and drawings. A typed version of each of the letters was tendered on the plea as Exhibit C. These letters were sent in breach of the IVO. Charge 4 – contravention of a family violence intervention order intending to cause harm or fear – is a rolled up charge covering those letters.

23Insofar as charges 3 and 4 are concerned, you were offered an opportunity to take part in a record of interview but declined to do so.

Victim Impact

24I received a victim impact statement from the complainant during the plea. I am not going to repeat in any detail the matters which the complainant described in her victim impact statement given her desire that that statement not be read out in court. However it is apparent from her statement that your actions have caused the complainant to feel scared, hurt and angry; have affected her ability to conduct her daily activities in a normal manner; and have caused difficulties in her relationships with her children. The ongoing contact by you with the complainant through the letters sent to her from prison also significantly affected the complainant’s mental health and stress levels. The impacts upon the complainant from your offending are ongoing at this time.

25I accept that the impact of your offending upon the complainant has been substantial and I take that impact into account in sentencing you.

Prior Criminal History

26You do have a relevant prior history. Whilst you have only been before the court once as an adult for substantive offending, you were sentenced on a consolidated plea which included stalking, persistent contravention of a family violence order, contravention of a family violence intervention order, 4 charges of intentionally damaging property, 1 charge of wilfully damaging property, as well as multiple assault-related offences, bail offences and dishonesty offences. I note that some of the charges in this consolidation related to a previous incident which occurred on 5 October 2017 where you had assaulted the complainant in the aftermath of a breakdown in your relationship.

27You were sentenced on 8 October 2018 and received an aggregate term of imprisonment of 100 days (time served), followed by a 12 month community correction order with supervision and treatment conditions attached. You had only been out of custody for just over three months and were on the community correction order at the time of committing the offences the subject of charges 1 and 2. You were also still subject to the community correction order at the time of committing some of the conduct constituting charge 3.

28Subsequent to being remanded on the current offences, you were sentenced in respect of breaching the community correction order and received a term of 1 month imprisonment. I have taken this additional month which you have spent in custody into account when applying the principle of totality in this case.

Guilty Plea and Delay

29Your pleas in this matter were not entered at the earliest opportunity. On 23 July 2019 you conducted a contested committal in respect of the offences committed on 17 and 18 January 2019. The complainant was cross-examined at that committal hearing and you were committed to stand trial at the end of that proceeding. The matter proceeded to case conference before me on 4 December 2020 and 16 February 2021 where discussions were had about the merits of the case and the potential for resolution. In the meantime you had been charged with the additional offending, the subject of charges 3 and 4, and proceeded to committal hearing in respect of those matters on 16 March 2021, with you being committed on that day with no evidence being called. Both matters then resolved in their entirety on 17 March 2021.

30Despite the history of the matters, and despite your pleas of guilty not being entered at the earliest opportunity, they are still valuable pleas of guilty. They have saved the complainant from having to give further evidence and have saved the court and the community the cost and time of potentially having to run two trials – the utilitarian value of which is enhanced at this time due to the unprecedented impact which the pandemic is having upon the efficient running of the criminal justice system in this state.

31It was not submitted on your behalf, nor could it have been, that your pleas are indicative of remorse or an acceptance of responsibility for your offending. It is clear from the psychological report authored by Ms Sandra Cokorilo and tendered as Exhibit 2 on the plea that you have little to no insight or remorse for your offending, exhibited by your insistence to her that you did not set the home on fire but rather are pleading guilty because you want to finalise the legal proceedings. You told Ms Cokorilo that you are ‘copping it on the chin to be with [your] daughter’. You do however have some limited insight into your mental health and drug issues – you having acknowledged to Ms Cokorilo that if your mental health and drug abuse remain untreated, they are likely to continue to cause you issues in the future.

32Taking into account all of the circumstances surrounding your plea of guilty, whilst not of the very highest order, the discount I have given you for your plea of guilty is still substantial.

33I have also taken into account to a limited degree in your favour the delay between the offences being committed and these matters finally coming to a resolution. As discussed with counsel during the plea, delay may be relevant to sentencing in two ways – firstly in relation to the unfairness occasioned to an offender of having a charge hanging over their head and causing them anxiety for an extended period of time, and secondly in respect of any progress towards rehabilitation which occurs during that delay. In your case, the second aspect has limited application given the further offending which you committed whilst in custody and your continued limited insight into your offending. However, I accept that there has been considerable delay in this matter – perhaps most notably illustrated through the delay between initial directions hearing on charges 1 and 2 on 24 July 2019 and the matter eventually coming to case conference on those charges on 4 December 2020. The fact that you, to the point of entering your pleas, were exercising your right to contest the charges does not impact on an assessment of the extent to which the delay is mitigatory. I accept that a period of two and a half years to progress from charge to plea – with, I might add, no certainty of a trial being able to be held for at least another year – is a considerable time to have charges hanging over your head, and I take that into account in your favour.

Personal Circumstances

34You are now 30 years of age. You were born in Bendigo and have a younger full biological sister, and two older half siblings – a brother and sister.

35You grew up in a dysfunctional family setting where both of your parents abused alcohol and cannabis. There were arguments between your parents on a daily basis and you were exposed from a young age to both verbal and physical family violence, not only between your parents, but also directed at you. Your father was most often the aggressor, and you observed your mother being assaulted by him from a young age. You also suffered taunts from your father on a daily basis and would be smacked and belted for minor things such as asking for food. In addition to that abuse, you were sexually assaulted by your half-brother on two occasions whilst you were in primary school. You did not say anything about the abuse at the time as your brother was asked to leave the home, for unrelated reasons, shortly after the incidents. To this day you have limited contact with your brother and no contact with your sisters.

36In addition to  your difficulties at home, you also experienced challenges at school. You had significant learning difficulties and were often in conflict with teachers and peers. You left school at 15 years of age, part way through Year 10 and started working in a pizza shop. You also left home at the same time due to the strained relationship with your parents. Since that time you have suffered instability in both your living arrangements and your employment. You have jumped between accommodation – sometimes couch-surfing with friends, sometimes renting and sometimes returning home to live with your parents – with the longest period in any one place being 2 years. Similarly you have jumped between jobs. You did manage to work for three years at the pizza shop, and at 22 years of age you secured a role in a factory where you were employed for four years. However at all other times you have worked in short-term unskilled roles with lengthy gaps between jobs.

Drug and Alcohol Issues

37Perhaps unsurprisingly, given the traumatic and dysfunctional nature of your childhood, you commenced drinking alcohol at 12 years of age; and by 16 years of age you were drinking excessively. You reported to Ms Cokorilo that you would drink up to a slab and a half per day ‘to escape things and make the day go faster’. You report that your drinking reduced when you met the complainant and from 2016 you would only drink with her, approximately once per week.

38You also commenced using drugs from an early age – commencing with cannabis at 14 years of age. You then added in other drugs over time – from 15 years of age you commenced using psilocybin mushrooms, at 16 years of age you were using ecstasy and cocaine and from 21 years of age you were using methamphetamine. Whilst you did undertake some outreach counselling for approximately one year when you were 21 years of age, you have never attended a drug detoxification or rehabilitation program. However, you advised Ms Cokorilo that you had managed to stop smoking methamphetamine in November 2018 and starting using anti-depressants.

Mental Health Issues

39In addition to your drug and alcohol issues you have also suffered with mental health issues. As a teenager you had a history of self-harming by cutting and you attempted suicide for the first time as a 16 year old. In 2015 you were admitted to a psychiatric hospital with suicidal ideation, and as a 27 year old you again attempted suicide in the context of relationship difficulties. You were admitted to a psychiatric hospital for one month following this attempt.

40Having assessed you for the purposes of this plea hearing, Ms Cokorilo is of the opinion that you suffer from a number of mental health issues being major depressive disorder, generalised anxiety disorder, post-traumatic stress disorder (PTSD) and borderline personality disorder (BPD). Further you have previously suffered from severe alcohol, cannabis and stimulant use disorders all of which are currently in remission in a controlled environment given your extended period of incarceration. 

41In Ms Cokorilo’s opinion your early childhood trauma would have contributed to the development of your PTSD and BPD. Your presentation is also further complicated by your mood disorder, anxiety, and your history of alcohol and polysubstance abuse which developed as a form of self-medication for your untreated chronic mental health issues. Ms Cokorilo noted that there is evidence of you having been severely psychologically impaired as reflected in your history of self-harming behaviours and suicide attempts from a young age.

42Ms Cokorilo is of the opinion that there are links between your presentation and your offending behaviour. She explained that your exposure to chronic family violence, which is a form of complex trauma, would have compromised your development, leading to heightened physiological and psychological stress reactivity, thereby undermining your capacity to respond functionally to stressors later in life. Further you have marked deficits in emotional regulation by reason of your BPD which commonly results in intense episodes of anger, depression and anxiety.

43Ms Cokorilo is of the view that:

increased friction in [your] relationship with the complainant in this matter has likely triggered [your] abandonment schema, a core feature of BPD, contributing to anger, interpersonal confrontations, and disinhibited and recklessly impulsive behaviours, due to exacerbation of the impulsivity, emotional instability, and self-destructive behaviours, inherent in [your] personality disposition.

44Ultimately Ms Cokorilo is of the view that the impairment resulting from the interaction of these different disorders causes you to have extreme reactivity to interpersonal stressors and would have impaired your ability to exercise appropriate judgment, make calm and rational choices and think clearly at the time of the offending. Ms Cokorilo also expressed the view that your impairment in emotional regulation can cause undue distress and is likely to make imprisonment more onerous for you than an individual without your conditions.

45Insofar as risk assessment is concerned, Ms Cokorilo considers you to be a high risk of re-offending given your prior criminal history, history of drug and alcohol abuse, history of psychosocial adversity, limited supports, and emotional and personal factors. However, she noted that some of your risk factors are amenable to treatment and can be managed through a combination of psychological intervention and medication. Ms Cokorilo advised that your rehabilitation prospects are dependent upon you remaining drug and alcohol free; receiving and engaging in treatment for your mental health issues; partaking in family violence psychoeducation, anger management and behaviour change treatment programs; and having a period of support and supervision post-release to assist you to transition between prison and the community and to link you in with relevant support services and treatment. I note that whilst you have been in custody you have shown some interest in commencing to address your issues, participating in a few short courses which deal with behavioural and relationship issues – certificates for which were tendered on the plea. Taking into account all of the matters before the court, I consider you to have some prospects for rehabilitation but they are guarded.

Relevance of Mental health Issues and Disadvantaged Upbringing to Sentence

46Mr Malik submitted in eloquent submissions on your behalf that both your childhood disadvantage and your mental health issues can be taken into account as mitigating factors in this case.

47Relying upon the principles in Bugmy v R  [2013] HCA 37 and Marrah v The Queen [2014] VSCA 119, and the opinions expressed by Ms Cokorilo, Mr Malik submitted that your moral culpability for your offending is reduced by reason of the impact of your deprived childhood. In summary, Mr Malik submitted that your early development was compromised due to your exposure to your parent’s violence and drug taking, and being subjected to sexual assault at the hands of your brother. These experiences led to educational disadvantage, a transient lifestyle, and use of alcohol and drugs from an early age. This early childhood trauma also severely impacted upon your mental health and compromised your ability to effectively deal with conflict in your adult life. This impairment in turn contributed to your offending. Accordingly, Mr Malik submitted that the dysfunction, disadvantage and abuse experienced by you reduces your moral culpability for the offending and should be taken into account as an important mitigating circumstance.

48Mr Malik submitted that your mental health issues further mitigate your offending in this case. In particular he submitted that there is a clear causal connection between your diagnosed disorders and your offending behaviour as outlined by Ms Cokorilo, and that your mental health is relevant to sentencing in four ways. Firstly, he submitted that it reduces your moral culpability for the offending conduct. Secondly general deterrence should be moderated given the impact of the disorders upon your functioning at the time of the offending. Thirdly, specific deterrence should also be moderated given the impact of the disorders upon your functioning at the time of the offending. Fourthly, Mr Malik submitted that given the current impact of your conditions upon you, any term of imprisonment imposed upon you will weigh more heavily on you than it would on a person in normal health.

49Mr O’Toole on behalf of the prosecution did not take issue with Mr Malik’s submissions in this regard, however did submit that as a corollary, your compromised mental functioning does require the court to give greater weight to community protection in sentencing.

50Ultimately I agree with the submissions made by both Mr Malik and Mr O’Toole. I accept that both your disadvantaged background and your mental functioning at the time of the offending both operate to reduce your moral culpability for your offending. I further accept that the weight to be given to both general deterrence and specific deterrence should be moderated, but not eliminated, by reason of your functioning at the time of the offending; and I accept that the time you spend in custody will be more onerous upon you than someone without your conditions.

51However, the severity of your condition and the potential for you to overreact, and overreact in an extreme and criminal manner when faced with stressors, is of particular concern when considering the weight to be given to community protection in sentencing. In my view, it is also relevant to the manner in which any sentence I impose upon you should be served, given that community protection in your case is firmly interlinked with your rehabilitation, which is itself dependent upon your ability to access, and be supervised and supported through, appropriate treatment.

Impact of Covid-19

52You have been in custody since your arrest on 18 January 2019 and therefore have been on remand throughout the entire period of the COVID-19 pandemic in Victoria. I take into account that your time in custody to date has been more burdensome than it might otherwise have been due to the restrictions which have been imposed and which are still currently in place. As a result of these restrictions you have experienced a period of quarantine in isolation after a court transfer, as well as multiple lockdowns; your access to rehabilitative and work opportunities have been limited; you have had reduced access to family and friends; and have been, and most likely will continue to be in the near future, restricted from having face to face contact with family and loved ones.

53I also accept that you are subject to heightened stress and anxiety by reason of your incarceration and resultant lack of control of the measures to reduce your risk of contracting the virus.

54I take this added burden of imprisonment into account in sentencing you.

Gravity of Offending

55Turning now to the gravity of your offending.

56Charge 1 is a rolled up charge encompassing 96 telephone calls and 17 text messages made by you to the complainant over approximately a twelve hour period immediately following you being served with the Notice. The content of the communications included material which was both derogatory and threatening and included a threat to ‘set [the complainant’s] house up’ if she didn’t call you back. This offending also occurred in the context of you being subject to a community correction order for offending which included offending against the same complainant. The sentence imposed for this conduct must, by reason of the charge being a rolled up charge, reflect the overall gravity of the entirety of your offending conduct committed during that twelve hour period.

57Charge 2 is similarly a serious offence committed in the context of family violence, in circumstances where you had only hours earlier been excluded from the address by reason of the Notice. The property was destroyed save for the garage, and resulted in over $200,000 in damage.  It was submitted by Mr O’Toole that there was a clear degree of premeditation given the content of some of your messages to the complainant leading up to the fire. I am of the view, however, that this is tempered to a certain degree by the impact of your mental health issues upon your behaviour as described by Ms Cokorilo.

58Charge 3 – being the attempt to pervert the course of justice charge – involved multiple communications to the complainant; which included threats of violence, and specific requests for the complainant to change her evidence and drop the allegations; in circumstances where you were trying to avoid prosecution for a serious family violence offence, and where you were contacting the complainant in continued breach of the interim IVO which prohibited contact of any kind.

59Charge 4, like charge 1, is a rolled up charge, and encompasses multiple communications with the complainant via letter – which in my view could only be described as manipulative and abusive communications – in circumstances where you were in custody awaiting trial for a case where the complainant was the alleged victim.

60Your offending in respect of each of the four charges before the court is serious offending which was committed in the context of family violence.  The nature, circumstances and gravity of each of the offences calls for weight still to be given (albeit moderated by reason of your personal circumstances) to the sentencing considerations of denunciation, deterrence (both general and specific), and just punishment, as well as community protection.  Each of the offences, being constituted by separate offending, requires a separate sentence to be imposed and for there to be a level of cumulation. However, to give effect to the principle of totality, I do intend to moderate the cumulation as between each offence.

Sentencing Submissions and Comparable Cases

61Turning finally to the sentencing submissions made by each party.

62Mr O’Toole submitted that despite the mitigating circumstances in this case, general deterrence, denunciation, specific deterrence and punishment must each be given significant weight. Further he submitted that protection of the community must be given primacy in the sentencing exercise, given the seriousness of the offending, persistent attempts to influence the complainant’s evidence from custody, continued denials of the offending and the diagnosis of BPD.  Accordingly, Mr O’Toole submitted that the only appropriate disposition in this case would be a term of imprisonment with a non-parole period.

63Mr Malik, on your behalf, conceded that the only available sentencing disposition is one that involves an immediate term of imprisonment comprising a head sentence and a non-parole period. However he further submitted that the Court should consider imposing a longer period under the supervision of the parole system in order to maximise your prospects of rehabilitation and, through doing so, vouchsafe the protection of the community. 

64Both Mr Malik and Mr O’Toole directed my attention to cases, which they considered may be of assistance in sentencing you, in particular where arson has been committed in the context of the breakdown of a domestic relationship.  I have read each of the cases referred to by counsel.  Obviously none of the cases are completely comparable in terms of the circumstances of the accused or the factual scenario – not least because I am also dealing with you for subsequent contravention of the IVO and attempting to pervert the course of justice. However they do provide guidance as to the application of the relevant sentencing principles in this area and also can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available.

65Ultimately, I agree with counsel, that taking into account all of the material before the court and applying all of the relevant sentencing principles, the only appropriate disposition in this case is a term of imprisonment with a non-parole period. Whilst the weight to be given to general deterrence, specific deterrence and denunciation are all to be moderated by reason of your disadvantaged background and mental health, the offences are still serious offences and the sentence imposed must reflect that. I do, however, agree with Mr Malik that in your particular circumstances, given the weight which must be given to community protection in this case – and the manner in which that might best be achieved – it is appropriate for you to be given the opportunity for an extended period of time in the community under the supervision of parole, whilst still bearing in mind that you might be required to serve every day of the sentence I impose in custody.

Sentence

66Mr Robinson, you are sentenced as follows.

67On charge 1, contravene family violence safety notice intending to cause harm or fear for safety, you are convicted and sentenced to a term of imprisonment of 12 months.

68On charge 2, arson, you are convicted and sentenced to a term of imprisonment of 3 years and 9 months.

69On charge 3, attempt to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of 2 years and 6 months.

70On charge 4, contravene family violence intervention order intending to cause harm or fear for safety, you are convicted and sentenced to a term of imprisonment of 6 months.

71I direct that 4 months of the sentence on charge 1, 12 months of the sentence on charge 3, and 2 months of the sentence on charge 4 be served cumulatively on the sentence on charge 2 and each other.

72The total effective sentence is therefore 5 years and 3 months’ imprisonment.

73I direct that you serve a minimum of 3 years’ imprisonment before becoming eligible for parole.

Pre-Sentence Detention

74The period of 941 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.

Section 6AAA Declaration

75Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years and 4 months. So, your pleas of guilty have given you a substantial discount on the sentence that might have otherwise been imposed.

Ancillary Orders

76As a matter of completeness I note that there are no ancillary orders sought.

Other Matters

77HER HONOUR:  Counsel are there any other matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?  What I do intend to do is to provide a copy of both my reasons for sentence and the psychological report to the parole board, so that they understand that whilst obviously it is a matter for the parole board as to when and if they release

78Mr Robinson, that I have given an extended, or made available an extended period for parole and the reasons why and that fact that it is important that

79Mr Robinson be given an opportunity to receive treatment and rehabilitative steps, rather than just having to serve an entire term and then be released with nothing in place.  So, I do intend to have those materials passed on.  But is there anything that either of you wish to raise at this point?

80MR MALIK:  Just one matter from me.

81HER HONOUR:  Yes.

82MR MALIK:  Your Honour (indistinct words) in relation to the attempt to pervert the course of justice that the matter proceeded to a committal hearing in March of this year, in fact it proceeded by way of a straight hand up brief.

83HER HONOUR:  All right.

84MR MALIK:  It was a plea of - plea of not guilty I think at that stage.

85HER HONOUR:  All right.

86MR MALIK:  But, discussions (audio malfunction) - - -

87HER HONOUR:  So, I think I drew that from the chronology that was on the prosecution opening, so I do apologise if I got that wrong.  I can indicate Mr Malik that I haven't because I did not know who'd been - even knowing it was a - thinking it was a committal because I didn't know who'd been cross-examined, I didn't actually detract any weight from the plea of guilty by reason of thinking there was a second committal.  So, it doesn't impact on the sentence in any way, but what I will do is I'll make sure that that is amended, so it's clear that it was a committal mention rather than a committal.  I do apologise for that.

88MR MALIK:  Thank you, Your Honour.

89HER HONOUR:  Let me just have a look at the material and see.

90MR O'TOOLE:  Sorry Your Honour, that's probably my lack of clarity in the chronology.

91HER HONOUR:  Yes. 

92MR O'TOOLE:  It was listed for a committal hearing but it proceeded as a straight hand up brief on that day.

93HER HONOUR:  Yes.  As I say, I didn't - because I didn't know what had occurred, I didn't take any - reduce the weight that I was giving to the guilty plea by reason of it, but I will amend that.

94MR O'TOOLE:  As the court pleases.

95HER HONOUR:  So, where is it?  So, what I'll say is at paragraph 29, 'In the meantime, you've been charged with the additional offending, the subject of Charges 3 and 4 and proceeded to a committal hearing in respect of those matters on 16 March 2021 with the matter with you being committed on that day with no evidence being called.  Does that cover it sufficiently?

96MR O'TOOLE:  Yes, Your Honour.

97MR MALIK:  It does, Your Honour.

98HER HONOUR:  All right.  Being committed on that with no evidence being called.  All right.  So, is there anything else that anyone wishes to raise?

99MR O'TOOLE:  No, Your Honour.

100HER HONOUR:  All right.

101MR MALIK:  Your Honour, I'm just wondering, I'm sure Your Honour's got Your Honour's never ending trial continuing, but I wonder if I could just have a few moments with Mr Robinson after Your Honour leaves the Bench.

102HER HONOUR:  Of course you can Mr Malik.  So, the effect of my sentence Mr Robinson is that there's roughly about 5 months to go before you're eligible to be considered for parole.  It's then up to the parole board what they do.  I have no control over that, but as I say, what I am going to do is provide all of the material that I've got and the reasons why I've given you the opportunity for an extended period on parole and then it's a matter for them whether they act on that or not.  I wish you all the best for the future and I hope that you are given that opportunity and the treatment that you need, all right?

103OFFENDER:  Thank you, Your Honour.

104HER HONOUR:  All right, I will step off the Bench and allow you to have that conversation Mr Malik.  So, just stay where you are Mr Robinson and then Mr Malik can have a chat to you once everyone's cleared the court, all right?

105OFFENDER:  No worries.

106MR MALIK:  Yes, Your Honour.

107HER HONOUR:  All right, thank you.

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