Director of Public Prosecutions v Savage
[2015] VCC 1673
•19 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00488
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW ROBERT SAVAGE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2015 | |
DATE OF SENTENCE: | 19 November 2015 | |
CASE MAY BE CITED AS: | DPP v Savage | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1673 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – false imprisonment – robbery – intentionally cause injury – make threat to kill- excellent rehabilitation prospects- combined custody/CCO imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C Thomson | Vaille Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr A S Dickenson | Melasecca, Kelly & Zayler |
HER HONOUR:
1 Matthew Savage, you have pleaded guilty before me to one charge each of false imprisonment, robbery, intentionally cause injury and make threat to kill. These charges arise out of events which occurred at a factory in Bayswater North on 3 May 2014.
2 The offences are serious and that is reflected in the maximum penalties that are prescribed by Parliament. For robbery it is 15 years’ imprisonment or 1800 penalty units. False imprisonment, intentionally cause injury and make threat to kill, it is ten years’ imprisonment or 1200 penalty units.
3 You admitted your criminal record. There are some 12 court appearances spanning the period from 26 July 1994 up to and including 12 April 2012. I am also informed there are some other offences that are to be dealt with at Ringwood Magistrates' Court on 25 November 2015 and those offences concern some driving matters, two breaches of an intervention order, resist police and criminal damage. I was advised that offending occurred prior to 3 May 2014.
4 You do have relevant prior convictions for offences of violence against a person. There is unlawful assault in (1994), recklessly cause injury (2001); recklessly cause serious injury, assault in company (2004); recklessly cause injury, intentionally cause injury and two charges of make threat to kill (2011).
5 You have received a variety of dispositions from the courts, including convictions with fines, suspended sentences, Intensive Correction Orders, and wholly suspended sentences.
6
You were charged for these offences on 6 May 2014 following your arrest and you were not released on bail until 30 May 2014. You then failed to appear on 31 July 2014 and a warrant was issued. You were arrested again on
9 October 2014 and since that time you have been in custody. The matter resolved as a plea on 24 September 2014 just prior to the commencement of the trial. I believe that is approximately a week before the trial date was fixed.
7 You are now age 40. You were born on 8 January 1975.
8 I shall now proceed to sentence you on the basis of the prosecution plea summary that was opened to the court by Mr Thomson, the prosecutor. There was no objection taken to that summary by your counsel, Mr Dickenson.
9 In brief summary, together with your father, you attended a factory in Bayswater North operated by the victim, Hamish Merritt, with his brother, Justin, on 2 May at about 5.30pm. Some time later both Justin Merritt and your father left and you stayed, socialising at the factory with Hamish Merritt and his friend, Michelle Schembri. You were all drinking. At the time of the offending you were also addicted to the drug ice.
10 At about 10 pm things started to go awry when you began asking Hamish Merritt, “Where is my fucking gunpowder?” He said he did not know anything about any gunpowder and you became angry and grabbed him by the throat and threatened him saying, “I know you’ve got my fucking gunpowder, I want it or else”. Ms Schembri intervened at that time and tried to stop you by hitting you with a wooden rod. You then started yelling at her and left the factory.
11 Later that evening at about 11.30 you confronted Hamish Merritt outside the factory. You approached him while he was sitting in his car and removed his keys and you said to him, “I know you’ve got it. Get fucking inside now”. He got out of his car and then you threw some keys at Mr Merritt and demanded he open the factory. He did so and then you both went into the building.
12 You continued to direct him to return your gunpowder. Once inside the factory you struck him with some dowelling and told him to sit in the kitchen. You then rang a friend, Brooke, and told her that Hamish Merritt had stolen your gunpowder and you would not let him go until it was returned. Those facts constitute Charge 1, the false imprisonment.
13 You then threatened him and produced a knife and tried to stab him. He hit you on the arm. You then stabbed him in the left arm. That is Charge 3, intentionally cause injury. You told him, “I’ll cut you into little pieces”. Charge 4, threat to kill.
14 You forced him onto the ground and held the knife to the back of his neck and said you could easily kill him and that you wanted him to tell you where the gunpowder was or that you would kill him. You then asked him for his wallet, which he said he did not have. He told you it was at his girlfriend’s house. You then told him to take you to his girlfriend’s house to get the wallet and then go to an ATM to withdraw some money.
15 Eventually you then took Mr Merritt outside and forced him into another vehicle, a Mazda utility that was outside the factory and directed him to drive to the ATM at Canterbury Gardens where he was directed to withdraw money. He complied and gave you $500. That is Charge 2, the robbery.
16 You then left him and walked down Canterbury Road. He then drove off to a Caltex Service Station where he raised the alarm and police were called.
17 He was taken to Maroondah Hospital, and the history noted when he presented was that he had been assaulted. A stab injury to the left forearm was noted by the doctor and some bruising to the back and neck. The doctor's notes state, a stab wound to the lateral aspect proximal third of the forearm with no neurovascular deficit and haematoma noted. No active bleeding. Normal range of movement at the forearm at wrist and left chest wall tenderness. No pneumothorax noted and there were clear lung fields. The left forearm wound was cleaned and dressed. No other intervention was required.
18 At the plea hearing the notes from the hospital were produce and I noted, on close reading of them, that there was a notation about the stab wounds, that he was stabbed in the left arm with a knife, two small puncture wounds and the wound was cleaned.
19 Police arrested you on 6 May 2014, following which you were formally interviewed and made a mostly “no comment” record of interview.
20 Mr Savage, your crimes have had an impact on Hamish Merritt. His Victim Impact Statement sets out he suffered emotionally as a consequence of what has happened. He has required some treatment from doctors, a psychologist and social workers and he feels lost and scared of being away from home and has difficulties with trust issues now with other people. He says he has had trouble with the forearm, for which he takes some painkillers, and the pain is an occasional inconvenience to his day-to-day life. He says he socialises less with others and has become withdrawn because of his changed attitude and general mistrust of the world.
21 Mr Dickenson, on your behalf, confirmed that the plea of guilty was entered into at a late stage. He did rely on its utility and emphasised that it saved the victim the necessity to give evidence on the trial. I do accept by reason of your plea that you have demonstrated a willingness to facilitate justice and it has, in particular, spared Mr Merritt the further trauma of having to give evidence at the trial and even though it was entered at a late stage there is utility and your sentence will be discounted accordingly.
22 I have noted the context to the offending. You were known to both the Merritt brothers and at times you had worked for Justin Merritt and had stayed in factories owned by him and had left property belonging to you at his factories.
23 I note that you were in the grip of an ice addiction and that, combined with the drinking on the night, does, to a large extent, explain your behaviour. Mr Dickenson indicated that you had no recollection of stabbing the victim and that was the reason why you did not accept responsibility for what occurred until a late stage in the proceedings. However, you now fully accept responsibility for what occurred on that night, and there is no suggestion that you were mentally impaired by reason of your combined drug and alcohol abuse on the night.
24 Whilst explaining your bad behaviour, the combination of drugs and alcohol in no way excuses your behaviour and on behalf of the community, I must formally denounce your behaviour. In sentencing you there is a real need to emphasise both general and specific deterrence, which your counsel acknowledged were appropriate sentencing considerations.
25
Mr Dickenson conceded that you do have a relevant prior criminal history. I have already referred to the convictions for violence. He noted your long term involvement with the criminal justice system. He also noted that this was the longest time you have ever spent in custody. He acknowledged that the offending occurred within weeks of the completion of the operational period of a wholly suspended sentence that was imposed back on
12 April 2012.
26 Your prior criminal history can be explained, in large part, by reason of your long-term addiction to drugs. It is also evident that you may have problems with anger management and I have noted the convictions for the assault of a former girlfriend back on 8 May 2011. The circumstance of which were that you punched her to the face and bit her on the thumb and you also threatened her that you would kill her. On that occasion you damaged a window at her property.
27 There was also the assault in company charge back on 21 September 2004, when you were charged with that offence as well as recklessly causing injury. That arose out of a fight between two groups and on that occasion one of the victims suffered a broken jaw. In 2001 you were convicted of recklessly causing injury following a situation where you punched somebody who you believed was responsible for some bad driving. In 1994 you assaulted your sister’s husband because she had fractured her ribs during what was described as a long-term abusive relationship. You have also got multiple charges for driving whilst suspended and driving whilst disqualified.
28 Your past criminal antecedents are quite serious and that has a bearing on my assessment in terms of your rehabilitation but equally, because of what you have done since you have been in custody, it highlights to me how important it is to encourage you to continue you along the route that you have now chosen.
29 I have noted your history and background. You were born in Gippsland. Your parents remain living there and both parents are supportive of you. Your dad has been present at the plea hearings on both occasions. He and his wife are regular visitors to you whilst you have been in prison. He runs a hydraulic lift servicing company and he is in a position to provide you with both employment and accommodation upon your eventual release. He would like you to take over his business eventually.
30 I note that you are one of three children and, tragically, your older sister was killed as a consequence of a drink-driving incident. You have had limited education, really. I note that you left school at 14 ½ because you refused to go to school. It was no coincidence that at about that time you were heavily using cannabis. You left home prior to your 15th birthday. You have had a very itinerant lifestyle thereafter. You have some work history but it was described as patchy and sporadic. You have an interest in spray painting an panel beating and at times you have worked for your father in the past.
31 You have twin daughters, Taylie and Jamie, who are both aged nine. Your daughter, Jamie, is autistic. Your relationship broke down with their mother when you were incarcerated in 2006 but nonetheless it is said that you continue to have an amicable relationship with your former partner and you have contact with your children and you are interested in continuing to be able to provide them with support into the future.
32 In the plea hearing I had access to some medical material that showed in 2011 and 2014 you have been subject of some investigations in relation to recurrent migraines and (query) stress, double vision and blurring.
33 Following CTs of the brain taken in 2011 and 2014 a right frontal arachnoid cyst has been noted and you have been also the subject of an MRI that was performed on 8 November 2011. On that occasion changes around the frontal lobe of the right side were reported consistent with a volume loss of a proportion of the right frontal lobe, most likely an encephalomalacia, related to a previous (indistinct) trauma related injury but no further treatment or follow up appears to have been undertaken.
34 Recently, you have received a letter from the mobile Forensic Mental Health Service signed by Dr Ming Yung Houssay who is the senior clinical neuro-psychologist, confirming that you are seeking a neuro-psychological assessment following your release. All I can say from this material is there is nothing conclusive that can be drawn from it with respect to diagnosis or whether the presence of the cyst or frontal lobe damage impacts on your cognitive functioning and that is something that you are keen to explore in the future I have noted that.
35 Significantly, in your case, I accept that imprisonment has been a salutary experience for you. Since being in gaol but your behaviour has been exemplary. Your good conduct earned you the right to work as a billet. You have spent your time productively whilst on remand. I have been handed this morning certificates for all the courses that you have undertaken through the Kangan Institute including general education courses. You have undertaken those courses as well as Participation and Workplace Safety Arrangements, Basic Strategies for Work Related Learning, Computer Technology certificates and Food Handling certificates. All of which suggest to me that you do have a capacity to undertake courses and your willingness to do so whilst being held on remand is noted.
36 I also accept that you have developed a degree of insight and that you are now taking steps to address your underlying offending behaviour.
37 Mr Dickenson described it as being a golden “opportunity” for you to turn around your life and I accept that submission. It is not often that we see this so I think yours is a really good example of what can happen when people do address what is going on in their lives that is causing them to offend.
38 I noted Silvia Violante's report, (the psychologist with Caraniche), that confirms you completed the 24 hour drug and alcohol program. That is an eight session structured program aimed at generating thinking and exploring issues that underlie participants substance use. You participated appropriately and in addition, you also completed a six hour alcohol and drug and loss program and you have had six individual counselling sessions as well.
39 There was a letter from a pastoral carer, Sean Dowling Horgan, who visited you twice at St Augustine's Prison whilst you were having treatment for your fractured leg. He confirmed in his observations that you were reflective about the damage that your drug abuse has caused over the years and its destructive impact on your life and relationships and he noted your clear determination to overcome your addictions and do whatever it takes. He says you appear to be genuine and highly motivated. So that augurs well for your future and also your rehabilitation prospects.
40 In addition a clear urine sample report dated 6 November 2015 was provided to the court. I am satisfied that currently you are drug free and I note your expressed intention to remain drug free upon your eventual release.
41 I consider that there is real hope for you for your eventual rehabilitation having regard to those very real steps that you have taken during the time you have spent in custody. I note that you have been held at various locations whilst you have been on remand but predominately at the Metropolitan Remand Centre. I do know that following the riots in July 2015 that it has been difficult for prisoners, even those who were not involved in the riots. I note that you have been held in 23 hour lockdown and I have taken into account the difficulties you have experienced whilst at the MRC.
42 I have also had regard to what you wrote to the court. I do accept what you say now, that you have thought deeply about your current position and the very poor decision making that you have made along the way and you acknowledge the effect on the victim but also you acknowledge the significant and lasting impact drugs has had on both yourself and also the lives of those you love and care for, especially your twin daughters. You declare in that letter you want to be a more positive role model for your children. You want to be there to support them and their mother.
43 I accept that you have learnt a lot about yourself in the past year and you have now set more positive long term goals and you have been given some strategies to assist you. You are now committed to rehabilitation. In my mind somebody who has reached this point is the perfect candidate for a combination sentence and CCO.
44 Overall, having regard to the objective features of your offending, whilst I consider it is serious offending, I do not consider it the worse type of offending for this sort of offending. I think the offending is, generally, speaking at a lower end of the scale of seriousness for the charges to which you have pleaded guilty and so the sentence reflects that. Nonetheless it would have been pretty terrifying for Mr Merritt to be held against his will over the course of at least an hour and a half, possibly longer, and he was injured by you. Fortunately, it was not a serious injury and you also made him go to the ATM where you made him take out the money on your behalf. So it all would have been, all up, quite a terrifying experience and that is why it has to be marked by a sentence of imprisonment as well as combined with a CCO.
45 It is important in sentencing you to impose just punishment and also the court must have regard to the various sentencing considerations that I have already referred to. Your counsel considered that a term of imprisonment would be usual for this sort of offending but submitted time served to be followed by a Community Corrections Order was appropriate.
46 Mr Thompson, on behalf of the prosecution, emphasised, having regard to your antecedents, your prior criminal history, that both specific and general deterrence are significant sentencing considerations. He accepted the constructive gains you had made whilst in prison and also your real prospects of rehabilitation. But he noted the offending occurred just weeks after the completion of the suspended sentence that was imposed with respect to offending including threats to kill and he noted the effect of the offending on the victim as evidenced in the victim impact statement.
47 He also referred the court to s.6E of the Sentencing Act 1991 that applies to the threat to kill charge, Charge 4. It is considered to be a serious offence. Therefore every term of imprisonment imposed in respect to that relevant offence, unless otherwise directed, must be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed. In the particular circumstances of this case I will be directing otherwise.
48 Mr Thompson also noted, pursuant to s.6F of the Sentencing Act, serious offender status has to be noted on the record of the court. He opposed the submission that a period of imprisonment equivalent to time served to follow a Community Corrections Order was the appropriate sentencing disposition. The Crown submit a further term of imprisonment is warranted.
49 Mr Savage, I am guided a recent guideline sentence of the Court of Appeal, Boulton v R. I accept that just punishment can be met through the imposition of a Community Corrections Order together with all the other relevant sentencing principles. I have already expressed my intention to combine a term of imprisonment to be followed by a CCO of two years and I have already spelt out the conditions. I consider that those conditions offer you the best opportunity to continue your rehabilitation. That is important because it is important that you be law-abiding but it is also important from the perspective of the protection of the community. I think that that can be enhanced by your supported release with appropriate assessment and treatment for drugs and alcohol, supervision and also programs to continue the work that you have already started.
50 As I have explained to you earlier I consider it that some extra time in gaol is required to reflect the seriousness of the offending but I am prepared to provide you with an opportunity to capitalise on the gains that you have made whilst you have been on remand.
51 I will announce my sentence shortly but I have had in regard in particular to the comments made in Boulton as to combining a CCO with a term of imprisonment where it is said,
52 "The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that even in cases of objectively grave criminal conduct the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration with conditions tailored to the offender's circumstances and the causes of the offending".
53 In my view, having regard to the very significant steps that you have taken to date, that a combined sentence and CCO can, and is, appropriate punishment for your offending. I will make the following orders. Could you please stand.
54 Mr Savage, in relation to Charge 1, the false imprisonment, you are convicted and sentenced to six months' imprisonment.
55 Charge 2, the robbery, convicted and sentenced to 12 months' imprisonment.
56 Charge 3, intentionally cause injury, convicted and sentenced to nine months' imprisonment.
57 Charge 4, make threat to kill, convicted and sentenced to six months' imprisonment.
58 Charge 2 is the base sentence and I order that two months for each of the charges 1, 3 and 4 are cumulative upon each other and the sentence imposed on Charge 2. That makes a total effective sentence of 18 months' imprisonment.
59 I direct that you commence a two year Community Corrections Order to commence on completion of the term of imprisonment imposed today.
60 I make a declaration of pre-sentence detention of 431 days. I direct that that be entered into the records of the court.
61 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to three and a half years' imprisonment with a minimum of two years.
62 Pursuant to s.6F of the Sentencing Act I note that you have been sentenced as a serious offender for Charge 4 and direct that that status be noted in the records of the court.
63 I make the ancillary orders sought. I note that they were consented to. I make the Disposal Order sought in respect to the knife. I make the Compensation Order in respect to $500 payable to Hamish Merritt.
64
I make the order for the taking of a forensic sample pursuant to s.464ZF(2) of the Crimes Act 1958. I do have to announce I made that order because of the seriousness of the circumstances of the offending I consider that that warrants the making of the order and the order is by consent and it is in the public interest that it be granted. The only thing I need to tell you about that,
Mr Savage, is you will be given a cotton bud at some stage and asked to pop that in your mouth to give a sample. Provided you do that task that should be the end of it but if you do not then the sample can be taken by way of blood sample and the police may use reasonable force to enable that procedure to be conducted. Do you understand that? Yes, all right.
65 In respect to the Community Corrections Order the place of reporting is Morwell Community Corrections and you must report there two working days following your release from custody. That centre is located at 25 Ann Street, Morwell.
66 I have already discussed with you the various conditions. So that two years starts from the end of the 18 months less the 431 days you have already served. I have explained to you the mandatory conditions. I have explained to you that you will be under supervision for two years and there will be conditions that you undergo assessment and treatment including testing for drug abuse or dependency and for alcohol abuse or dependency. The final one is that you must participate in any programs or courses that they get you to attend. In particular I have allowed for referral to violence intervention or other appropriate programs.
67 I will just sign that order and then you have just got to sign the order saying you understand the effects and conditions of the order and consent to it being made. I will get Mr Dickenson to accompany my Associate for you to sign that.
68 MR DICKENSON: Thank you, Your Honour.
69 HER HONOUR: I think that covers everything, doesn't it, Mr Crosbie?
70 MR CROSBIE: Yes, Your Honour.
71 HER HONOUR: Yes thank you. Have I given you the ancillary orders? Did you want to have a word with your client before he goes down?
72 MR DICKENSON: If I might briefly, Your Honour, just to make arrangements to go and see him a bit later on.
73 HER HONOUR: All right. I think that covers everything.
74 MR DICKENSON: I believe so, Your Honour.
75 HER HONOUR: Thank you. Thank you for your attendance.
76 MR CROSBIE: The court pleases.
77 HER HONOUR: And your patience.
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