Director of Public Prosecutions v Robson (a pseudonym)
[2022] VCC 1122
•7 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN ROBSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2022 | |
DATE OF SENTENCE: | 7 July 2022 | |
CASE MAY BE CITED AS: | DPP v Robson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1122 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence – plea of guilty
Catchwords: Sentencing – six charges of persistent breach of intervention order – one charge of common law assault - two summary charges of breach of intervention order – one summary charge of trespass – 57 year old male-offender – intimate relationship deteriorated – dysfunctional relationship - choked former partner following argument - repeated breaches by sending numerous text messages – breaches occurred while on bail – significant time spent in custody – some engagement in rehabilitative programs during custody – principles of general deterrence – imprisonment reckoned as already served.
Legislation Cited: Crimes Act 1958 (Vic); Family Violence Intervention Act 2005 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Total effective sentence 9 months imprisonment with no non-parole period. Period of 9 months imprisonment reckoned as already served. s6AAA: 1 year 2 months with no non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Mr D. Carolan | Victoria legal Aid |
HIS HONOUR:
1Dylan Robson[1], you have pleaded guilty on indictment L11706704.B.1 to 6 charges of persistent breach of family violence intervention order, each carrying a maximum penalty of 5 years imprisonment and a single charge of common law assault, carrying a maximum penalty of 5 years imprisonment.
[1]A pseudonym.
2You have also pleaded guilty to 3 summary offences. Summary charges 7 and 13, breaches of intervention order, carry a maximum penalty of 2 years each. Summary offence 10, trespass, carries a maximum penalty of 6 months.
3I accept that your guilty pleas in were entered at an early stage.
4The common law assault according to charge 7, which is on one view the most serious incident of all, was constituted by grabbing your former partner, Rachel McBride[2], by the throat on a day when you were distressed by your brother's recent death. You had been out to the pub, if not drinking. You had relationship trouble because of difficulties between you and Ms McBride. You grabbed her, bringing her into the bedroom and onto the bed. Then, whilst on top of her, put your hands around her throat. She described it as a terrifying incident.
[2]A pseudonym.
5When police arrested you soon afterwards, you quite properly admitted it was true and that it was ‘disturbing'. Your own words are an accurate description. On reflection, after a couple of years, I hope that you still see the incident as disturbing and that that recognition it has guided your behaviour and attitudes.
6Too often and for too long in circumstances of family violence, incidents such as this were either overlooked, not made the subject of a complaint or not sentenced very harshly. Times have changed. The sentence I impose on you in relation to that will involve a term of imprisonment. Fortunately for you today that sentence will nevertheless allow you to be released. But in sentencing you I propose to send a message to other men in troubled relationships, that gaol looms large for any such violence.
7I also acknowledge that in recent times our community has come to understand more fully the real significance of an act like choking or putting your hands around somebody's neck, and the risks that it has been shown to demonstrate of future violence, even death.
8I am glad to hear that you have taken time to engage in programs in custody including programs about violence and relationships. I can only encourage you from this point to continue to seek help about your relationships, as many have and do, so that there will never be a return to this kind of conduct.
9Charges 1 to 6 relate to your contact with Ms McBride after that incident and during the operation of either an interim or a final intervention order under the Family Violence Protection Act 2005. As you have heard me say, that contact was incessant. Not just often but incessant – hundreds and hundreds of calls or text messages. With all due respect to you and Rachel McBride, who I note responded most of the time, but not all the time, and who perhaps by her own actions encouraged your ongoing contact, that that sort of incessant conduct demonstrates a level of obsession and entitlement which is unbecoming of a man.
10When I hear criticisms about that kind of behaviour and it is spoken of in a way that attaches itself to being a man or, 'that’s just a man' or 'that all men are like that', I am ashamed, as I hope you are. Being a man is about being more than that behaviour.
11Some of your conduct bordered on threats and was no doubt seen as threatening by Rachel McBride. Whatever she had done during the relationship, nobody deserves that. Certainly, nobody deserves that kind of behaviour in their home.
12Clearly, your relationship was dysfunctional. I take note of what is likely to have been a level of terror and daily apprehension on Ms McBride’s part about what the next contact was going to include. I take that into account in deciding what penalty to impose.
13I note that your offending occurred whilst you were on bail and, after January, during the operation of a Community Correction Order. I've not heard about your progress on that order, but in all the circumstances, I find that you were skating on thin ice at the time. For all of the above reasons, I have imposed a term of imprisonment.
14I have substantially reduced that term because of the difficulties caused by COVID and noting the principles set out in the case of Worboyes.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
15I have no doubt that as you return to Tooradin, for however long you remain there, police will maintain their surveillance of you and pay close attention to what you do with your phone, with anybody's phone, or about you being close to Hastings.
16Whilst it will not reduce your penalty, I expect there will be an intervention order in place, and in any case, the bail conditions I have imposed upon you in another matter in the short term will prohibit you from having any contact with Rachel McBride. I encourage you to maintain those obligations vigilantly, no matter how you feel.
17I note that one of the problems with breaching an intervention order is that it is contemptuous of a court's order. That is why it is punished, regardless of whether the victim encourages it, promotes it, or asks for the contact.
18You have been in custody now for about 2 years. That is a high price to pay for your conduct. Whilst in custody and during the Covid pandemic you have had no visits, or very limited visits in recent times. You have not been able to engage in programs addressing rehabilitation and treatment to anywhere near the extent that you should have been.
19Your time in custody has been hard and, especially now you have been acquitted of more serious offences, you have been waiting a long time for a guilty plea.
20The principles discussed in the case of Worboyes apply, that is, I should indicate in imposing sentence on you for this offending that I have imposed a demonstrably shorter sentence than I otherwise would have, and I will do that.
21However, you and others who become aware of this case should understand that Covid is now all but over and if this kind of conduct were to occur in similar circumstances, the sentence would not be this lenient.
22On Charges 1– 6, I impose an aggregate sentence of 6 months.
23On Charge 7, common law assault, I impose 5 months.
24As the offending in charge 7 was the first incident in time, I will make the 5 months the base sentence and of the 6 months imposed on charges 1-6, I accumulate 3 months.
25On Summary Charge 7, a further breach by your contact with Rachel McBride on the day that you trespassed in her house, I impose 7 days concurrent.
26On Summary Charge 10, trespass in circumstances where you entered Rachel McBride’s house late at night, without invitation, without notice, albeit without an intention to assault her, I impose 1 month to be served cumulatively.
27On Summary Charge 13, the breach of intervention orders consisting of the contact you had with Rachel McBride by text messages between 10 January-10 February, I impose 14 days, concurrent.
28The total effective sentence is 9 months imprisonment and I declare that period of 9 months to have been served and that it be reckoned as having been served.
29Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had there not been a guilty plea, Mr Robson, in circumstances where a man in your position had not admitted the wrongdoing that was plainly made out on the evidence, I would have imposed a sentence of 14 months and not made an order as to a non-parole period.
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