Director of Public Prosecutions v Rogers
[2017] VCC 43
•7 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Suitable for Publication |
Case No. CR-15-01537
CR-16-02254
Indictment No. G11513166
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL WILLIAM ROGERS |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 December 2016 |
| DATE OF SENTENCE: | 7 February 2017 |
| CASE MAY BE CITED AS: | DPP v Rogers |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 43 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – persistent contravention of family violence notice or order – intentionally damaging property – aggravated burglary – causing injury intentionally – use a motor vehicle not being registered as required – stalking another person – contravene a conduct condition of bail without reasonable excuse – fail to comply with the conditions of the community correction order – plea of guilty
Legislation Cited: Family Violence Protection Act 2008 (Vic), Crimes Act 1958 (Vic), Sentencing Act 1991(Vic), Road Safety Act 1986 (Vic), Bail Act 1977 (Vic)
Cases Cited:Filiz v R [2014] VSCA 212; DPP v Myers (2014) 44 VR 486
Sentence:Total effective sentence of six years’ imprisonment with a non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Manning | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Smallwood | James Dowsley & Associates |
HIS HONOUR:
Introduction
1 Daniel William Rogers, you have pleaded guilty to a large number of offences. The first group of offences are referred to in the Indictment. I will summarise them as follows:
·On 2 June 2016, you persistently contravened a Family Violence Intervention Order contrary to s125A of the Family Violence Protection Act 2008 (Vic), carrying a maximum penalty of five years’ imprisonment and/or a fine of 600 penalty units.
·On 2 June 2016, you intentionally and without lawful excuse, damaged a vehicle belonging to “JR”, contrary to s197(1) of the Crimes Act 1958 (Vic), carrying a maximum penalty of ten years’ imprisonment.
·On 2 June 2016, you intentionally and without lawful excuse, damaged a house window belonging to “JR”, contrary to s197(1) of the Crimes Act 1958, carrying a maximum penalty of ten years’ imprisonment.
·On 3 June 2016, you intentionally and without lawful excuse, damaged the front door of the house occupied by “JR”, contrary to s197(1) of the Crimes Act 1958 (Vic), carrying a maximum penalty of ten year's imprisonment.
·On 3 June 2016, you went to “JR”'s house as a trespasser with the intention of committing an offence involving her, contrary to s77(1) of the Crimes Act 1958 (Vic), carrying a maximum penalty of 25 years’ imprisonment.
·On 3 June 2016, you, without lawful excuse, caused injury intentionally to “JR”, contrary to s18 of the Crimes Act 1958 (Vic), carrying a maximum penalty of ten years’ imprisonment, and you were also charged with using an unregistered motor vehicle.
2 You have also pleaded guilty to a number of summary charges which have been transferred to this Court. These offences are:
·Without lawful excuse, you failed to comply with the conditions of the community correction order to which you were sentenced on 22 April 2016, contrary to s83AD(1) of the Sentencing Act 1991 (Vic), carrying a maximum penalty of three months’ imprisonment.
·On 2 June 2016, you used a motor vehicle on a highway which was not registered as required by Part II of the Road Safety Act 1986 (Vic), contrary to s7(1)(a), carrying a maximum penalty of 250 penalty units for a second offence.
3 When you were sentenced by the magistrate on 22 April 2016, the charges on which you were released on a community correction order were:
·Stalking another person contrary to s21A (1) of the Crimes Act 1958 (Vic), carrying a maximum penalty of ten years’ imprisonment;
·Contravene a conduct condition of bail contrary to s30A(1) of the Bail Act 1977 (Vic), carrying a maximum penalty of three months’ imprisonment or 30 penalty units.
Contravention of the Community Correction Order
4 I will now turn to the contravention of the community correction order.
5
You were charged with stalking another person and contravening a conduct condition of bail. You pleaded guilty in the Ringwood Magistrates’ Court on
22 April 2016. You were released on a Community Correction Order for a period of 12 months which was to commence on 22 April 2016.
6 As a result of your offending, you have breached the community correction order. Therefore, I must sentence you for the charges of stalking and contravening a conduct condition of bail and also for your breach of the community correction order. I propose to, firstly, set out the facts constituting the stalking, and the contravening of a conduct condition of bail before turning to the charges on which you have been indicted.
7
On Easter Monday 2012, you visited a family friend who I will refer to as “G”. She had been a friend of yours for 25 years. You saw her infrequently, but on
27 January 2012, you had a “one night stand” which appears to have reignited your friendship with her. When you visited her, she was with a male friend. You became jealous and you began sending her abusive text messages. You called her a “slut” and threatened to expose the affair you had with her to her husband. In April 2014, you had another falling out with her and again, threatened to expose her to her husband. Things then escalated when you sent text messages to her daughter inviting her daughter to ask “G “about the affair. “G” intercepted the text messages before they reached her daughter.
8 The following is a summary of the further escalation:
·On 11 April 2015, you began telephoning “G”. You telephoned her a total of 27 times.
·On 12 April 2015, you sent a message to “G” informing her to wash the brake fluid off her car, and that you had put baits in her horse paddock to poison her horses. You sent a further text messages informing her the brake fluid would eat the paint of her car.
·You sent a further text message on 12 April 2015 informing her that you were throwing brake fluid over her car, that you would put poisoned meat in her yard for her dogs and had put poisoned carrots in the horse paddock. You sent her a further text message informing “G” that you had been to her home twice and that had she been at home, you might have killed her and that you were fed up with being lied to by a woman.
·You were arrested on 21 April 2015 and taken to the Croydon police station. By that stage, “G” had obtained a personal safety intervention order. You were then released on bail. One of the conditions of your bail was that you not stalk “G”. Despite this condition, within minutes of leaving the police station, you sent a text message to “G”’s husband with screenshots of a conversation that you had with “G” mentioning the affair.
·You were to appear at court on 24 April 2015 for the hearing of the personal safety intervention order application. The day before, you sent a text message to “G” mentioning her affair.
·On 26 April 2015, you sent a private message via Facebook to a witness asking whether she was aware of “G”’s affair.
·You were again arrested on 22 April 2015. You admitted that you told “G” that you had poisoned her horses and dogs although, you had in fact not done so. You also admitted sending text messages and pouring fluid over her car, alleging that it was brake fluid, when in fact it was dishwashing liquid. You said that the text messages you sent her were a “stupid threat to get an answer out of her”.
Background facts
9 I will now turn to relevant parts of your background and your domestic relationship with “JR”.
10 You were in a domestic relationship with “JR” between November 2015 and January 2016.
11 Due to obvious difficulties which developed in your relationship with “JR”, a family violence intervention order was granted on 5 February 2016. This prohibited you from committing family violence against her, damaging her property, contacting or communicating with her, approaching or remaining within 5 metres of her and going or remaining within 200 metres of her address.
12 On 2 June 2016, you sent a number of text messages to “JR” which were abusive and demanded the return of your property. Between 12.03am and 3.54pm, you sent her six text messages. At 4.00pm, you arrived at her address and parked your car in her driveway. You observed a male leaving her premises. What you saw caused you to question her about the male and whether he was her boyfriend.
13 You left her premises after she pretended to call the police. You were later seen driving past her premises. You confronted “JR” as she drove away in her car, demanding that she pull over. She ignored you.
14 Between 4.45pm and 9.03pm, you sent “JR” ten text messages and you tried to call her on several occasions. Her only response to you was a text message in which she said, “Fuck off”. Your text messages, summarised in paragraph 15 of the Prosecution Opening, were revolting and alleged that she was engaged in a relationship with another man.
15 It was at 9.00pm that your conduct spiralled out of control. “JR” woke to hear your car pulling up in her driveway. She saw you pouring transmission fluid on her car. The damage to her car is demonstrated in photographs which were tendered in evidence. The transmission fluid was being poured over the roof and boot lid of her car [Charge 2 – intentionally damaging property].
16 “JR” was scared of you, and no doubt because of what she saw. She telephoned the police. You then threw a log through her bedroom window which shattered the glass of the window, spilling glass into her bedroom [Charge 3 – intentionally damaging property]
17 You then drove away but returned on foot. You stood in “JR”'s driveway and then left. Between 9.42pm and 10.18pm, you sent her five text messages which were equally revolting, alleging that she was engaged in a relationship with another man.
18 By this stage, you had contravened the intervention order in each of the ways particularised in the indictment [Charge 1 – persistent contravention of a family violence intervention order].
19 On 3 June 2016, you arrived at “JR”'s house. She saw you. She was scared. She ran inside her house and locked her front security door. You went to the back door and called out to her, saying that you knew she was in the house and that you wanted your stuff. She asked you to leave. You refused. “JR” had engaged two glaziers to repair the damage to the window you broke. They were standing outside her house. She communicated with them in an effort to get them to help her.
20 Your attack on “JR” escalated. You forced in the front security door and entered her house. [Charge 4 – intentionally damaging property, and Charge 5 – aggravated burglary]. She took refuge in her bedroom. You screamed at her to come out. You were then observed to take two steps, as if you were about to leave, and then you changed your mind and you came towards her, accusing her of “screwing around”. You grabbed her by the jumper and attempted to swing her into something. She fell. You again accused her of screwing around.
21 She was in a most vulnerable position by that stage, lying on the floor. You struck a blow to the left side of her face. You then lifted your foot and stomped on the side of her head and again struck her a blow with your fist to the left side of her face. The glaziers entered the house and told you to leave. Even at that stage, you continued to verbally abuse “JR”. You eventually left. Despite being told that the police had been contacted, you later drove your car slowly past “JR”’s house.
22 The police arrived. You were arrested nearby on 3 June 2016. You were interviewed through a formal record of interview. You denied almost all of the allegations put to you during the interview.
23 The car you were driving at the time of the events that I have just described occurred was not registered [using an unregistered motor vehicle].
Your criminal history
24 You have a number of prior convictions, some of which are of some relevance.
25 The first is when you were dealt with by a court on 4 March 2016 for intentionally damaging property and unlawful assault. You were convicted and fined $1000. Your counsel informed me that you punched the car windows of “JR”’s car which resulted in her being struck by glass.
26
Next are a series of driving charges. You were dealt with by a court on
21 February 2008 for exceeding the prescribed alcohol limit, driving in breach of a licence condition and driving while your authorisation to drive was suspended. You were released on a community-based order for nine months. It would appear from the criminal history report that you are someone who had a significant problem with the consumption of alcohol and illicit drugs because the community-based order specifically contains conditions for you to undergo relevant assessments for drug and alcohol abuse and assessment for programs to address your offending conduct.
27 The community correction order for which I am dealing with you contains very similar conditions.
28 The other parts of your criminal history, which your counsel addressed, relate to careless use and possession of firearms and driving offences. I have not placed much emphasis on those prior convictions.
Your personal circumstances
29 You are 38 years of age. You have two brothers. One is older than you, the other younger than you. Your mother and father separated when you were ten years of age.
30 You appear to have enjoyed a happy early childhood. You learned from your mother that she had been in a physically abusive relationship with your father. That influenced your decision not to see your father, but after some time, you resumed contact with him, and later lived with him. You developed a problem with anger which you believed resulted from being caught in the middle of the conflict which was evident in your parents’ relationship.
31 There appears to be nothing remarkable about your schooling. You enjoyed playing sport at school, but you were not very motivated academically. You eventually left school to work as a plasterer, in a timber mill and as a carpenter. However, you have been mostly unemployed due to your declining mental health.
32
Between the ages of 8 and 15 years of age, you suffered from epilepsy, requiring medication. It has not affected you since you were about
15 years of age.
33 There are a number of events which you disclosed to Dr Deakin, psychiatrist, during his examination with you on 7 October 2016 which had troubled you:
·You believed you were sexually assaulted when you were a primary school student during a medical examination to determine whether your testicles had descended. It was something over which you had brooded, which came back to later affect you in later adult life.
·You were kidnapped for a few hours when you were about 14 years of age by a local man who was unlawfully cultivating cannabis.
·Your mother entered into a relationship with a violent man who seriously assaulted your mother and who threatened you with a knife.
·When you were 18 years of age, you were involved in a car accident which resulted in a woman dying. You witnessed her last moments. It is also something over which you have brooded and which has resulted in you suffering depression and engaging in self-harm.
·You have used cannabis, alcohol, ecstasy and amphetamines. You drank obsessively between the ages of 23 and 37, peaking at drinking a slab a day, but usually involving drinking six glasses of beer per day. You commenced using methamphetamine about five years ago, which resulted in you developing paranoia.
·The paranoia resulted in you being involuntarily admitted to the Maroondah Hospital in June 2015 for one week. You were prescribed risperidone, which is an anti-psychotic medication. You took this medication for three months. Although you were referred to a psychiatrist for treatment, you saw him only once. The side effect of the medication you were prescribed resulted in sexual dysfunction and weight gain.
·You were in a former relationship for some time. A child was born of that relationship. The mother and child now live in New South Wales. The break in your relationship with the mother and child has resulted in you feeling depressed. You have another child by a different partner with whom you continue to have a relationship.
34 Dr Deakin observed that you have suffered considerable adversities through your life. He described you as a man who was both insecure and jealous, and that your use of methamphetamine in the week prior to the charges relating to “JR” worsened your mood instability, propensity towards anger and aggression and your jealous tendencies.
35 Dr Deakin did not diagnose you as having a psychiatric condition. He did recommend that you have long-term psychological therapy. He concluded that you do not warrant psychiatric intervention. He made a comment which is so obvious from your offending conduct and your criminal history, and that is that you are prone to poorly regulated emotions and hostile reactions. He added that your anger needs to be managed.
The victim impact statement
36 “JR” is understandably seriously affected by the vicious and unprovoked attack you made on her. The victim impact statement demonstrates that she is petrified of you. She has a fear for her own safety. She is nervy around people she does not know. She experiences depression.
The sentence
37 I will deal with each of the charges in order of their occurrence.
38 I will firstly turn to the charge of stalking and contravening a conduct condition of bail for which you were released on a community correction order. A community correction order is not a soft sentence as some may think it is. Its purpose is described in s36(2) of the Sentencing Act 1991 (Vic) as a sentence which can be imposed as a substitute for a former sentencing option of imprisonment which is then suspended in whole. Our senior court in this state has described the imposition of a community correction order as punitive.
39 If I had been required to sentence you on the charge of stalking, then I would have released you on a community correction order essentially because you had not been sentenced to a term of imprisonment before and the benefits of a community correction order with conditions would fulfil all of the relevant sentencing purposes.
40 As it is now, I must sentence you by ignoring the availability of a community correction order. It does not necessarily follow that you must therefore be sentenced to a term of immediate imprisonment, but I consider the gravity of the stalking to warrant such a sentence.
41 Similarly, I consider that your contravention of a conduct condition of your bail also warrants sentencing you to an immediate term of imprisonment.
42 I do not propose to additionally sentence you a term of imprisonment for your breach of the community correction order.
43 I will next deal with the charges relevant to your conduct on 2 June 2016.
44 Despite being previously charge with stalking and being placed on a community correction order, you completely ignored the fact that you avoided an immediate term of imprisonment and instead were given the benefit of a community correction order. That should have brought to your attention that a recurrence of that conduct would be met with a much sterner sentence.
45 The particulars of the charge of persistently contravening a family violence intervention order bears a serious similarity to your conduct which saw you being charged with stalking.
46 What you did by sending text messages to “JR” was intended by you to create a constant threatening shadow over her life and you succeeded in doing this. You reduced her to being in a state of constant fear of you.
47 Our senior court has made a number of observations about defenceless women being subjected to unwarranted violence at the hands of their former male partners.
48 In Filiz v R [2014] VSCA 212, the Court of Appeal made the following observation:
“… that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners … .”
49 Later, in DPP v Meyers (2014) 44 VR 486, the Court of Appeal endorsed the remarks made in Filiz and added that violence of this kind occasioned on former domestic partners is “widespread, and extremely harmful”. It then referred to the statistics of women who are killed or seriously injured by vengeful former partners, and it observed that those statistics demonstrated something that was “truly shocking”.
50 In the many decisions of the Court of Appeal dealing with domestic violence where the offender is being charged with aggravated burglary and assault, sentencing judges are being encouraged to the view that so serious is this conduct that it warrants an immediate stern sentence of imprisonment; however, I note that many of the aggravated circumstances, such as being in company and carrying a weapon, are absent from your conduct which distinguishes it from cases calling for a much sterner sentence than I will impose on you.
51 Your conduct was extremely violent. It was fortunate that the two glaziers were present at “JB”’s home because it would appear that when they entered the house, you ceased assaulting “JR”, and let me remind you that you have not only thrown her to the floor, but in that prone position, you had punched her a number of times and then engaged in what I can only describe as the most dangerous conduct intending to seriously injure her – you stomped your foot on her head.
52 “JR” is fortunate that she has not suffered any major or lasting injury, except to say that you have damaged her mental state to the extent which she described in her victim impact statement.
53 In relation to your offending conduct, the sentencing principles which are dominant in your case are: specific deterrence. You need to be specifically deterred from engaging in acts of violence against your female partners. The most dominant sentencing principle is general deterrence. Individuals who stalk, and breach family violence intervention orders, and engage in confrontational aggravated burglaries of their former female partners, followed by serious and sustained assaults and damage their property, must suffer a sentence which sends the message to others that similar conduct will be dealt with most sternly.
54 Additionally, your conduct must also be denounced. The community is entitled to feel utterly outraged by your conduct because of its incidence in the community. There must also be an element of protection to the community from people like you who resort to this kind of conduct.
55 Against each of these sentencing purposes are the submissions made on the plea in mitigation. I have paid due regard to the submissions made by your counsel on the evidence tendered on the plea.
56 I consider that your prospects of rehabilitation are poor. Your record demonstrates why that is so, but I have taken into account the drug screens and the certificate evidencing your application to a course while you have been remanded in custody.
57 I do not consider that you have been remorseful. You denied that you had engaged in any offending conduct when you were interviewed by the police, except that you made some admissions relevant to whether you had breached the intervention order. You attempted to sheet home the blame for what occurred to a false allegation made by “JR”, and the sympathy for her by the two glaziers; however, you now unreservedly accept the content of the summary of the Prosecution Opening as being an accurate account of your conduct.
58 You pleaded guilty at the second committal mention on 5 September 2016. I will take that into account because your plea of guilty has a utilitarian effect of saving “JR” the trauma of going through a trial and has saved the State the cost of a trial.
59 The sentence I now impose on you is proportionate to the gravity of your overall offending in the light of the objective circumstance of that offending and addresses the principle of totality.
60 I now ask you to stand please.
61 The community correction order made on 22 April 2016 is cancelled, pursuant to s83AS(1)(c) of the Sentencing Act 1991 (Vic).
62 On the charge of stalking another person, you are convicted and sentenced to three (3) months’ imprisonment, with two (2) months to be served cumulatively with the sentence for the aggravated burglary, which is the head sentence.
63 On the charge of contravening a conduct condition of bail, you are sentenced to one (1) month’s imprisonment, to be served cumulatively with the head sentence.
64 On the charge of persistently contravening a family violence intervention order, you are sentenced to twelve (12) months’ imprisonment, with six (6) months to be served cumulatively with the head sentence.
65 On the charge of intentionally and without lawful excuse damaging “JR”’s vehicle, you are sentenced to three (3) months’ imprisonment with two (2) months to be served cumulatively with the head sentence.
66 On the charge of intentionally and without lawful excuse damaging a house window belonging to “JR”, you are sentenced to three (3) months’ imprisonment with two (2) months to be served cumulatively with the head sentence.
67 On the charge of intentionally and without lawful excuse damaging the front door of a house occupied by “JR”, you are sentenced to three (3) months’ imprisonment with two (2) months to be served cumulatively on the head sentence.
68 On the charge of aggravated burglary of “JR”’s house, you are sentenced to four years’ imprisonment. This will be the head sentence.
69
On the charge of intentionally cause injury to “JR”, you are sentenced to
eighteen (18) months’ imprisonment with nine (9) months to be served cumulatively with the head sentence.
70 On the charge of using an unregistered motor vehicle, you are convicted and fined $500.
71 You are therefore sentenced to six (6) years’ imprisonment. I will set a minimum before you are eligible for parole at four (4) years.
72 I order that the time you have been held in custody of 249 days is to be reckoned as time served. I will have that noted in the records of the Court.
73 If it had not been for your pleas of guilty to these charges, I would have sentenced you to eight years’ imprisonment with a minimum of six years to be served before you would become eligible for parole. You may now resume your seat.
74 Now, Mr Manning, what other orders do you seek?
75 MR MANNING: Two ancillary orders is all, Your Honour. The compensation order, which was an oral application previously, and an application for a forensic sample order.
76 HIS HONOUR: Yes. Can I have those please?
77 MR MANNING: Yes, Your Honour.
78 HIS HONOUR: I take it, Mr Smallwood, you have nothing to say about the making of these orders?
79 MR SMALLWOOD: No, Your Honour.
80 HIS HONOUR: You can remain seated while I address you further, Mr Rogers. An application has been made by the Prosecution for the provision of a forensic sample by taking a scraping from your mouth or a blood sample. Having regard to the seriousness of the circumstance of the offending, I find that granting of the order is in the public interest. I have made the order and I have signed it.
81 I am required to warn you, however, that if at the time when you are required to supply a sample of your DNA by scraping from the inside of your mouth under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way, you are either fail or refuse to provide that sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain that sample. Do you understand that?
82 OFFENDER: Yes.
83 HIS HONOUR: Firstly, you, Mr Manning, is there anything else?
84 MR MANNING: No, Your Honour.
85 HIS HONOUR: Mr Smallwood?
86 MR SMALLWOOD: No, Your Honour.
87 HIS HONOUR: Yes, you can remove Mr Rogers, please.
88 MR SMALLWOOD: As the Court pleases.
89 MR MANNING: As Your Honour pleases.
90 HIS HONOUR: Yes, adjourn the court till 10.30 would you?
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