Director of Public Prosecutions v Salisbury
[2023] VCC 1738
•7 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01981
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE SALISBURY |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2023 | |
DATE OF SENTENCE: | 7 September 2023 | |
CASE MAY BE CITED AS: | DPP v Salisbury | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1738 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Common assault – make threat to kill – conduct endangering persons
Legislation cited: Criminal Procedure Act 2009, s145; s242; Mental Health Act 2014, s351
Cases cited:DPP v Gaby [2020] VCC 752; DPP v Rutherford [2017] VCC 1874; DPP v Lieu [2016] VCC 157; Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269; Bugmy v R (2013) 302 ALR 192
Sentence:Convicted and sentenced to 3 years and 2 months imprisonment with non-parole of 2 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | The Office of Public Prosecutions |
| For the Accused | Mr O. Smith | Stary Norton Halphen |
HIS HONOUR:
1
Kane Salisbury, at the County Court of Victoria at Melbourne on
7 September 2023, that is today, you pleaded guilty to the following charges on indictment number N10465847:
Charge 1, common assault, this charge has a maximum penalty of five years imprisonment.
Charge 2, make threat to kill, this charge has a maximum penalty of 10 years imprisonment.
Charge 3, conduct endangering persons of serious injury, this charge has a maximum penalty of five years imprisonment.
2 You have also consented to this court hearing and related summary charge pursuant to s145 and 242 of the Criminal Procedure Act. You pleaded guilty to Summary Charge 9, which is committing an indictable offence whilst on bail. This charge has a maximum penalty of three months' imprisonment.
3
You have admitted a prior criminal history. Your court appearances started in 2018. In total you have four separate court appearances involving charges of assault, threat to destroy property, intentionally property, threaten to inflict serious injury, persistent breaches of court orders in respect of family violence orders. At your last prior court appearance at Heidelberg Magistrates' Court on
25 June 2020, you were sentenced to six months' imprisonment and a community corrections order for a period of 12 months.
The circumstances to your offending
4 The learned prosecutor tendered a summary of offending, and it was Exhibit “A”. I will refer to it in some detail.
5 In January 2021, Ms Milne moved into a premises at 31 Warrington Crescent in Deer Park with her friend, Ms Lambert, and her then boyfriend. Shortly after moving in, Ms Lambert's daughter, Ms Bennett, and her boyfriend, that is you, also moved into the house and started by staying in the garage at that premises.
6 In around about January 2022, so a year later, Ms Lambert moved out of the house and Ms Bennett and you then moved into that spare room inside the house.
7 In February of 2022, Ms Milne spoke to Ms Lambert about little things you had been doing that had annoyed her. Ms Milne told Ms Lambert she was thinking of moving out and having her name removed from the lease.
8 In the morning of 27 February 2022, Ms Milne, Ms Bennett, and you were at home. Ms Milne went to Ms Bennett's bedroom and told Ms Bennett she was considering moving out of the house and about the little things that had been happening in the house. At that time you were in the backyard.
9 You then walked into the house to Ms Bennett's bedroom and bumped Ms Milne with the side of your chest and shoulder. This caused her to step back. That was Charge 1, the common law assault.
10 Ms Milne then told Ms Bennett, 'That is what I'm talking about'. You then said to Ms Milne, 'I'm going to kill you, I'm going to fucking kill you'. You repeated that a number of times. That was Charge 2, make threat to kill.
11 You then lunged at Ms Milne. Ms Bennett tackled you and stopped you from touching Ms Milne. Ms Milne's dog then came into the bedroom of Ms Bennett and her dog was barking. You then said you were going to kill the dog.
12 Ms Milne has then returned to her own bedroom taking her dog with her and placed items against the inside of her door to stop you from entering the bedroom. Ms Milne then called Mr Turner, the father of her boyfriend and told him that you had tried to attack her. She asked Mr Turner to come over to the house to help her move out. Ms Milne then called her brother and told him what was happening and asked if he would also help her move out.
13 During those calls you were hitting the walls with your fists and making banging noises outside Ms Milne's bedroom. You then started shoving Ms Milne's bedroom door in an attempt to open it. She pushed herself against the door to prevent you from entering her bedroom. The shoving and banging stopped after about a minute.
14 Ms Milne then called Mr Turner again and told him that you were trying to break down her door. She asked Mr Turner to come over as quickly as he could. Mr Turner arrived at the house shortly thereafter. By then, Ms Milne unbarricaded the door to her bedroom to let Mr Turner in.
15 Mr Turner was then assisting Ms Milne getting her fish tank from the entry part of the house near Ms Milne's bedroom door. You have then walked through the house, through the back door and out to the shed. You were yelling and screaming as Ms Bennett tried to hold you back.
16
You then approached Ms Turner near the front door of the house but inside the house. At that stage you were holding a small red Gerry can, which you had picked up from the backyard and you then started pouring petrol all over
Mr Turner, from the top of his head, over his face and down his front and onto his feet. You then reached towards Mr Turner, holding a long barbecue igniter. As you were attempting to ignite the barbecue igniter, Ms Bennett was holding you back. The struggle resulted in the barbecue igniter, that your hand was moving too quickly for it to ignite. Ms Bennett ultimately pulled you away from Mr Turner. And that is Charge 3, conduct endangering persons of serious injury.
17
Mr Turner then returned to Ms Milne's room and told her what had happened.
Ms Milne barricaded herself inside house and called triple zero. Mr Turner walked out the front of the house and he dialled triple zero.
18 The police attended at the premises, and you were arrested by them initially. Ms Bennet said that she was your carer and that you were having a mental health episode because you had not taken your medications. It was said you were hearing voices in your head. You then had two epileptic seizures.
19 Under s351 of the Mental Health Act 2014, you were then taken to hospital by ambulance. You had a third epileptic seizure there. You were in hospital for two days.
20 On 8 March 2022, police attended at 30 Warrington Crescent, Deer Park, to execute an outstanding warrant in relation to other matters. You were assessed by a forensic medical officer at that time as unfit to be interviewed by police. At the time of these offences, you were on bail for other alleged offending.
21 In total you have served 548 days pre-sentence detention.
Victim Impact Statement
22 In this case there were two victim impact statements filed. The first victim impact statement was by Mr Turner, which was Exhibit “B”. It was read into the record of the court by the learned prosecutor. The victim impact statement of Ms Milne, Exhibit “C”, was also read into the record of the court.
23 Mr Turner set out how his social, work and life in general has been impacted by your offending. He has lost significant income by the necessity to change his employment because he could not keep up his usual employment. He has also lost trust in people.
24
Ms Milne sets out how your offending has exhausted her. She has trouble sleeping and does not feel safe at her work. You moved into her house and then you have upset her life completely, so she had to move her house.
Ms Milne feels guilt that she drew Mr Turner into this position of being offended against by you. Ms Milne describes being hypervigilant at work and in social settings.
25 It is clear your offending has had a significant impact on the lives of both of your victims in this case.
Your personal circumstances
26 At the time of your offending, you were a 36 year old man. You are now soon to turn 38 years. You were born in Footscray. Your parents separated when you were young, around about three to five years of age. Unfortunately, your mother has suffered mental health issues during your lifetime. You maintained a relationship with her and your now stepfather, Mr Dan. Both provided references to the Court and is Exhibit 4.
27 You were the middle child of a sibship of a total of seven. Between the time when your biological father left the family home and then you were 15 years of age, your mother had a number of domestic partners. These partners were violent towards both your mother and yourself. In your younger years there were regular DHS involvement with your family.
28
You completed Grade 6 at Woodville Primary School in Hoppers Crossing. You then attended high school in Werribee for a short time and later on in
Bacchus Marsh. You completed Year 8 at Bacchus Marsh but state to those who have examined you, you can hardly read or write.
29 When you were 12 to 14 years of age you moved to a cattle farm in Cloncurry in Queensland, where your older sister lived with her husband. You were exposed to more violence there and moved back to Melbourne after some two years. It was around this time that you were diagnosed with epilepsy.
30 You have been prescribed Epilim, which manages your epilepsy but does not completely prevent you from experiencing seizures. You had a seizure in custody as late as August 2023.
31 You commenced using cannabis when you were 18 years of age. You started on methylamphetamine when you were 30. You have stated that at the time of this offending you were using 1 gram of cannabis daily and 1.7 grams of methylamphetamine per week or as your counsel describe it, as much as you could afford. You were under the influence of these drugs at the time of the offending and reported you had not taken your prescribed medication for four days prior to the offending.
32 You have a limited work history. At the time of the offending, you had a job at FoodWorks in Bacchus Marsh. You had previously worked for VicRoads and as a sweeper driver for Yarra Trams. You have also worked for a fencing company, which as I understood it was commenced by you but is now conducted by your stepfather, Mr Dan. You have prospects of returning to work as a fencer when you are released from custody.
33 You have previously served a term of imprisonment for violent related offending.
34 You have now spent 548 days on remand awaiting this plea date.
35 The delay of a year between your plea at the Magistrates' Court or the indication of your plea at a Magistrates' Court and now, is exceptional even in the COVID backlog circumstances of this court.
36 You have a history of mental health issues with mood instability, suicidal ideation, and risk taking behaviour. You have had a history of five mental health registrations between 2011 and January 2020. You have a number of diagnoses in the past, including delusional disorder, bipolar affective disorder, mental and behavioural disorders due to multiple drug use and use of other psycho active substances, harmful use, dissocial personality disorder, schizoaffective disorder, mental and behavioural disorders due to multiple drug use and use of psycho active substances, a psychotic disorder and mental and behavioural disorders due to the use of alcohol dependence syndrome.
37 You have been examined by Dr Clare McInerney, a psychiatrist, for the purpose of this plea hearing. Her report, dated 3 September 2023, was Exhibit 3. Dr McInerney does not accept that a diagnosis of schizophrenia or major mood disorder is applicable to you. Dr McInerney could not find any evidence of psychotic illness to explain your offending. In Dr McInerney's opinion the most obvious explanation for the offending was methylamphetamine intoxication or withdrawal from its use. Dr McInerney finds your diagnosis is a personality disorder of moderate intensity with mixed borderline and antisocial features.
38 You have four children from three separate relationships. Your children are aged 20, 18, 16 and a 6 year old daughter. You have no contact or relationship with any of them. Your counsel submitted you were interested in pursuing a relationship with your youngest child upon your release from prison.
39 As previously noted, you have prospects of employment in the family fencing business.
Sentencing considerations
40 The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
41 I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.
42 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those cases.
43 I have considered statistics in current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from yours, as indeed they are from one another. Ultimately, current sentencing practices is but one of the factors I must take into account in fixing your sentence.
44 Your counsel referred me to three specific cases of Gaby, Rutherford and Leiu, as examples of sentences imposed for similar offending. Each of those cases are different to your case but I have taken them into account when fixing your sentence.
45 You have pleaded guilty to these offences. Your plea does have utilitarian value of allowing for the orderly and effective administration of justice and there is assertive outcome and the resolution of substantive issues raised by our offending.
46 Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal system set up to protect the community.
47 Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your part. I also accept your remorse as expressed appropriately in Mr Dan's reference to the court, which was Exhibit 4.
48 Your plea of guilty has avoided the necessity and further trauma to your victims from the need to give evidence in either a committal or a trial.
49 You are also making your plea at a time when the courts are under the strain due to the backlog of trials caused by the COVID-19 pandemic. You are entitled to the sentencing discount enunciated in Worboyes case.
50 Indeed, your plea, as I said earlier, was indicated as early as August 2022.
51 I take into account your criminal history. Your criminal history is not extensive for a person of your age. However, four court appearances for violent offending in a period of 30 months is a matter of concern.
52 You were on bail for a separate offending at the time of these offences and had only completed a period on a community corrections order some six months prior to these offences being committed.
53 The objective seriousness of your offending is indicated by the following matters.
(a) There are two separate times and persons offended against.
(b) One of your victims was a housemate in a share house setting.
(c) The victim of your assault charge and threat to kill charge was a much younger and physically smaller woman.
(d) Your victim in Charge 3 was only in attendance at the property in the role of rescuer for you first victim. Mr Turner was no threat to you.
(e) Your attack on Mr Turner was twofold. One, pouring petrol all over him and two, trying to light him up with the barbecue lighter after you had done so.
(f) The petrol was in this case your weapon.
(g) Your offending for Charge 3 was impromptu, rather than a long term planned event.
(h)
You offended when you had engaged in the use of methylamphetamine.
I just note here that self-intoxication is not a mitigating factor in criminality.
(i)
The offending occurred within the home of one of your victims, that is,
Ms Milne, and
(j) It was only the intervention by Ms Bennett that brought your offending to an end, specifically in relation to Mr Turner.
54 The sentences imposed on the charges on the indictment require some measure of cumulation to reflect the full level of criminality directed by you to the two individual victims in this case.
55 I have moderated the level of cumulation so as not to offend the sentencing principle of totality and hence, impose a crushing sentence upon you.
56 I accept that Bugmy case considerations apply to your sentencing process. You have been exposed to personal violence from a very early age from your mother's partners and also your elder sister's partner whilst you were in Queensland. You witnessed violence to your mother and your sister from their respective partners. From your early years violence to people close to you had currency.
57 Your upbringing has resulted in a very limited formal education. Nevertheless, you remained out of trouble until 2017 - 2018, which I suspect coincided with your escalated use of methylamphetamine. Of course, your use of methylamphetamine was integral to this offending.
58 The principles of Verdins have limited application to your sentencing process. I accept your diagnosis of personality disorder will make your time in custody more burdensome than a prisoner without that condition.
59 I also accept your epilepsy, if not properly controlled, will further make prison time hard for you.
60 I do not accept however, that your moral culpability for this offending is reduced due to your mental health diagnosis.
61 You have engaged in numerous courses whilst on remand and have a trusted role in the manufacture of children's wooden toys. These courses and your willingness to learn new skills are positive indicators of rehabilitation.
62 I assess your prospects of rehabilitation as fair. You have positive support from your mother and your stepfather. They visit you in prison every three weeks. Mr Dan can offer you employment upon your release. The difficulty you will face upon release from custody will be a place to live and not returning to the use of methylamphetamine. If you use ice, you will be back before the courts in no time.
63 Your offending is serious and the only appropriate disposition is a term of imprisonment with a non-period and the principles of general and specific deterrence, combined with just punishment, denunciation of your actions and the protection of the community dictate that that imprisonment is the only appropriate sentence.
64 I have fixed a non-parole period which will give you the opportunity to move back into the community with the assistance and supervision of the Adult Parole Board, should you be granted parole.
65 I sentence you as follows. Would you stand, please?
66 On Charge 1, you are convicted and sentenced to a period of four months' imprisonment.
67 On Charge 2, you are convicted and sentenced to a period of 12 months' imprisonment.
68
On Charge 3, you are convicted and sentenced to a period of two years and
six months. That is the base sentence.
69 On related summary charge 9, you are convicted and sentenced to one month.
70 The orders for cumulation are as follows.
71
Charge 3 is the base sentence. That is two and a half years or two years,
six months. To that, accumulative upon that is to be added six months of the sentence in Charge 2 and two months of the sentence in Charge 1.
72 That is a total effective sentence of three years and two months.
73 I fix a non-parole period of two years' imprisonment.
74 Pursuant to s6AAA but for your plea of guilty I would have sentenced you to four years and three months' imprisonment with non-parole period of two years and 10 months.
75 And I declare that you have served 548 days, not including this day, in respect of the sentence I have just imposed.
76 Is there anything else I need to order?
77 MS DICKENS: No, Your Honour.
78 HIS HONOUR: Is the mathematics, right?
79 MS DICKENS: If you would just give me a moment? Yes. According to me, yes.
80 HIS HONOUR: Thank you.
81 HIS HONOUR: Mr Smith, is the mathematics right?
82 MR SMITH: As best I can tell, Your Honour.
83 HIS HONOUR: Thank you. Thanks. Counsel, thank you very much for your assistance and submissions, a great help to me in this task.
84 MR SMITH: If Your Honour pleases.
85 HIS HONOUR: Thank you. If you could remove the prisoner? Thanks.
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