Director of Public Prosecutions v Schneider
[2018] VCC 1278
•10 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01272
Indictment No. H10423396.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK STEWART SCHNEIDER |
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2018, 27 April 2018 | |
DATE OF SENTENCE: | 10 August 2018 | |
CASE MAY BE CITED AS: | DPP v Schneider | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1278 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW
Catchwords: Criminal law – Common assault – Fourteen offences committed against former domestic partner over protracted period of time – Serious example of offence – Moral culpability high – Late pleas of guilty – No evidence of remorse – Cautious approach to prospects of rehabilitation – Delay – Relevance of subsequent offences – Prisoner currently serving a sentence of imprisonment – Totality – Need to fix new single non-parole period – Whether aggregate sentence of imprisonment appropriate
Legislation Cited: Crimes Act 1958 s 320 – Sentencing Act 1991 ss 9, 14
Cases Cited:R v Rumpf [1988] VR 466 – Alexandros v Birchell (2000) 31 MVR 307 – DPP v Rongonui (2007) 17 VR 571 – Bellizia v The Queen [2016] VSCA 21 – Cameron v The Queen (2002) 209 CLR 339 – Atholwood v The Queen (1999) 109 A Crim 465 – Nash v The Queen (2013) 40 VR 134 – Maybus v The Queen [2017] VSCA 125 – Barbaro v R (2012) 226 A Crim R – DPP v Frewstal Pty Ltd (2015) 47 VR 660
Sentence: Aggregate term of 3 years’ imprisonment – Two years cumulated on sentence undergoing – New non-parole period fixed effectively adding 16 months to existing non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N Goodenough | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond | Theo Magazis and Associates |
HIS HONOUR:
1 Mark Stewart Schneider, you have pleaded guilty to an indictment containing 14 charges of common assault, contrary to common law. The maximum penalty for common assault is 5 years’ imprisonment.[1]
[1]Pursuant to Crimes Act 1958 s 320
2 The prosecution filed a summary of prosecution opening dated 12 April 2018,[2] which I have been told by your counsel I can treat as a statement of agreed facts.
[2]Exhibit P1
The facts
3 You were previously in a relationship with the victim. The offences that are currently before the court took place over a protracted period from November 2011 to December 2012.
4 On 11 November 2011 the victim contacted you to discuss ending your relationship. You stayed with her that evening. On the following night you both consumed alcohol and the victim decided to go to bed at around 11.30 pm. You tried to get her out of bed by ‘play fighting’. You pulled the victim’s hair and slapped her, notwithstanding that she was telling you to stop because it was hurting her and making her cry. This constitutes charge 1.
5 The victim’s housemate heard what was happening and called police. At some point the housemate’s girlfriend visited the home. When police arrived they were informed that there was no problem and they left the property. Once the police left, you became aggressive towards the victim saying: ‘I can’t believe you allowed these fucking dogs here. Your fucking housemate, you are living with a fucking dog.’
6 You slapped the victim, who was sitting on the bed, even though she told you to stop. You threatened the victim in relation to her housemate and, at one point, you said that you would count to three and go to her housemate’s room. You continued to hit the victim after each slap. This constitutes charge 2.
7 You went to the victim’s housemate’s room yelling, ‘get out here mate, let’s have a chat’. However he had already left the premises. After a while you went back to the victim and slapped her again, telling her that you should knock her out. You pulled her hair and pushed her into a clothes rack, thereby committing charge 3. You then walked back to the victim’s housemate’s room again, calling out to him.
8 The victim walked up to you and pushed you in the back telling you to keep going and to just let it go. You went out the back door whilst being followed by the victim in her dressing gown. She shut the door to the home, but she did not have a key with her. You went to the toilet and returned to the victim, slapping her again. You told her that you could not believe the ‘jacks’ had been there.
9 The victim tried to run away from you through the back gate, but you grabbed her and threw her to the ground. This constitutes charge 4. You told her to ‘get in the house, cunt’. She got up and successfully ran out the back gate and attempted to hide from you. You found her and picked her up by her hair and threw her against a roller door, thereby committing charge 5. She fell to the ground and you picked her up and began slapping her in the face again. You told her to ‘just fucking walk’.
10 As the two of you walked you told the victim: ‘I can’t believe the jacks were at my house. That’s right, your house is my house. I could go to fucking prison for this. It’s your fault. It’s your fucking housemate’s fault.’ During this the victim’s face was hurting from your attack and, at some point, you kicked her in the back of the leg, which almost caused her to fall over. This constitutes charge 6.
11 As the two of you approached the end of the laneway you said to the victim, ‘I should fucking kill you for this’. I note that you are not charged before me with making a threat to kill. You slapped the victim in the face another three to four times. At the end of the alley you moved ahead and the victim attempted again to hide from you. You found her again and said: ‘Are you trying to fucking hide from me? Get the fuck up and get back in the house.’ You pulled the victim by her hair and threw her onto the concrete footpath. This constitutes charge 7. You kept on telling her to ‘get in the house, cunt’.
12 When you reached the victim’s house you kicked her gate open. You slapped her hard to the head, constituting charge 8. At the front door you kicked at the door until the victim said that she would open a window. As she began to do this you slapped her to the face and told her to ‘open the house, cunt’. She was not able to do so, but you could, and then the victim went inside and opened the door.
13 Once you were inside you went to the victim’s housemate’s room and saw that he was not there. You sat on his bed. During this the victim went to get her mobile phone. You told her that she and her housemate together owed you $10,000 and that they were to pay you by the next day. The victim sent a text message to her housemate not to return to their house as it was not safe to do so. As she was sitting in a chair you walked over to her and hit her over the head. This constitutes charge 9.
14 You sat on the edge of the bed and asked the victim: ‘tell me who this fucking Pete guy is. I’ll give you three seconds to tell me what his last name is or I’ll fucking knock you out.’ You raised your first at her and told her that you were sorry for what you were about to do. In face of this, the victim told you to do it. You then said that was fine. You then called Pete, as you had his number on your phone, and you told the person who answered to give you their full name, saying that you were their worst nightmare.
15 Whilst you were on the phone the victim ran outside and hid from you again. On this occasion she was successful and returned home after you had left. She called police and went to the police station. While she was there you made 58 attempts to call her, leaving voicemail messages and text messages.
16 On 31 December 2011 the victim was staying with you at your mother’s home. At some point on that New Year’s Eve the victim received a text message from a male friend and you reacted poorly to this. She wanted to have a shower, but you would not let her leave the room, telling her she was not going anywhere. You grabbed her head in one hand and bashed her head with the other. This constitutes charge 10. During the attack you said things such as, ‘you slut, you’re just like your mother, you’re a fucking fat bitch’.
17 During 2012 you were with the victim at her house. During one evening she had prepared dinner and you called it dog food. You kicked her off the couch and spat in her face. You then proceeded to kick her all over her body, thereby committing charge 11.
18 Subsequent to this you accused the victim of finding a gun. You forced her into a car and said that you were going to go to the owner who would deal with her. You drove around Vermont for approximately two hours. During this time you repeatedly bashed the victim’s head against the window, slapped the back of her head and squeezed her neck. This constitutes charge 12.
19 On 5 July 2012 you called the victim and told her that you were coming over, despite her not wanting you to do so. You arrived at her home that evening. The two of you had an argument and you eventually left her home. From 6 to 9 July you went back to her home and the two of you slept together. On the evening of 8 July you slept on the couch as you and the victim had an argument about some spilt wine. You called her a ‘dead set dumb cunt’.
20 On the morning of 10 July the victim told you to leave. This led to an argument. You followed her and said: ‘What the fuck did you just say to me? Don’t you walk away from me. That’s the problem with you, you have no respect.’ You pushed the victim from behind towards the bedroom and told her to ‘fucking sit down, stop fucking screaming and carrying on while I’m trying to sleep.’ You laid down beside her and continued to yell at her, before kicking her off the bed.
21 The victim got up to make breakfast and you followed her, continuing to scream at her. You asked if she was going to ignore you and you hit her with a karate chop to the throat, resulting in her crying and walking away. You then grabbed the victim’s neck in a vice-like grip and slapped her in the face four to five times. You grabbed her throat again and told her: ‘You made me like this, you fucking push me to this point. You make me do this, it is all your fault.’ This constitutes charge 13.
22 The victim pushed your chest and asked you if you felt like a real man, putting your hands on a girl. Upon hearing this you grabbed her clothes and pulled her to the couch, after which you grabbed her neck and pinned her down. The victim struggled to breathe and could not escape from you. You told her, ‘I want to smash your fucking face in, that’s what I really want to do.’ She told you to do so, in order to leave evidence, and you said that she had been to the ‘jacks’ before.
23 The victim tried to leave, but you had her keys. She went to the bathroom to clean herself up from crying and you followed her to hug her. During this you said: ‘Calm down, calm down. Don’t you get it? I’m not going anywhere. If you want to leave, you have to move out.’ You refused to give the victim’s keys back to her and she told you to leave and go and live off someone else.
24 Afterward, the victim walked away from you, but you grabbed her with such force that she went to ground, unable to breathe or speak. This constitutes charge 14. You picked her up and hugged her saying: ‘Breathe, you’re tough. I’m not going to let you go to work if you don’t calm down.’ You walked the victim to the car and warned her not to go to the police. You took the keys from the ignition and returned them and the victim told you she would not go to the police.
Victim impact statement
25 Your victim prepared a victim impact statement dated 11 April 2018 which was tendered in an amended form at the plea hearing.[3] It is evident that your actions have had a devastating impact on her. She described how she used to be a ‘bubbly, independent and outgoing woman’, but she is now a ‘struggling, scared, timid and messed up woman’. Her brief relationship with you led to her living in a state of fear, particularly of being found by you. Since these events she has apparently been diagnosed with post-traumatic stress disorder and anxiety for which she says she has received psychological therapy. She has found it difficult to maintain personal relationships with friends and family, and she has struggled to maintain stable employment.
[3]Exhibit P3
Offence seriousness
26 I do not accept you counsel’s characterisation of your offending conduct as being ‘at the lower level of the offence of assault’ or ‘at the bottom end of matters coming before the County Court’.[4] Domestic violence perpetrated mostly by men against their current or former female domestic partners is an appalling blight on our society. As the Victorian Royal Commission into Family Violence observed:
Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities.[5]
[4]Outline of Submissions, dated 23 April 2018 (Ex D1) [3]
[5]Victoria, Royal Commission into Family Violence: Summary and Recommendations (2016) 1
27 The Royal Commission was established in February 2015 as a consequence of the Victorian Government’s ‘recognition of the harm family violence causes, and of the need to invest in family violence reforms to assure the future wellbeing and prosperity of all Victorians’.[6] In announcing the Government’s intention to establish the Royal Commission, the Premier declared that family violence was ‘the most urgent law and order emergency occurring in our state and the most unspeakable crime unfolding across our nation’.[7] In the ‘Summary’ to its Final Report the Royal Commission observed:
The establishment of the Royal Commission is an acknowledgement of the seriousness with which the Victorian community has come to regard family violence and its consequences for individuals and families—it reflects our growing awareness of its scale, a recognition that existing policy responses have been insufficient to reduce the prevalence and severity of the violence, and the priority the community is prepared to accord it in order to address the problem.[8]
[6]Id
[7]Id
[8] Id
28 The Victorian Court of Appeal has also expressed its concern with the growing scale of this scourge on our society and has emphasised the importance of general deterrence, denunciation and just punishment. The Court has made ‘repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.’[9]
[9] Uzun v The Queen [2015] VSCA 292 [48] (Maxwell P), [39] (Priest JA). See generally Pasinis v The Queen [2014] VSCA 97 [53], [57] (Neave and Kyrou JJA); Filiz v The Queen [2014] VSCA 212, [21], [23] (Maxwell P and Redlich JA); DPP v Meyers [2014] VSCA 314, [45]–[46] (Maxwell P, Redlich and Osborn JJA); Marrah v The Queen [2014] VSCA 119, [25] (Redlich and Tate JJA); Kalala v The Queen [2017] VSCA 223 [55]–[63] (Maxwell P and Redlich JA)
29 Recently in Kalala v The Queen[10] the Court of Appeal, referring to Filiz v R, said that the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 4.’ In Kalala Osborne JA said:
[T]he prevalence of family violence and the seriousness of its consequences on the one hand, and the need for condign punishment to denounce and deter it on the other hand, are considerations which current understanding would emphasise as being of fundamental importance in cases such as the present.[11]
[10] [2017] VSCA 223 [59] (Maxwell P and Redlich JA) (citations omitted)
[11] Ibid [95]
30 In DPP v Smeaton[12] Dodds-Streeton JA observed that:
[12] [2007] VSCA 256
Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault.[13]
[13]Ibid [21]
Her Honour expressed the view that sentences must
sufficiently express the deep abhorrence excited by a violent and brutal physical assault by an adult male on a slight young woman, which is in no degree abated by the fact of a prior relationship between the victim and the perpetrator.[14]
[14]Ibid [22]
31 Mr Schneider, your offending was violent, protracted and cowardly. It was committed against a woman whom you professed to love, who was entitled to your protection and not violence at your hands. The offending involved a gross breach of trust. Moreover, much of it was committed in the victim’s home where she had a right to feel safe. Your moral culpability is high.
32 Accordingly, I view your offences as serious and calling for condign punishment. Clearly, general deterrence, denunciation and just punishment must be given considerable weight in my intuitive synthesis. In light of your prior criminal history, which I will elaborate shortly, specific deterrence and protection of the community are also highly relevant considerations in sentencing you for these crimes.
Personal circumstances
33 You were born in the Melbourne suburb of Doncaster in May 1983 and are currently 34 years old. You were aged 28 to 29 years at the time of committing these offences.
34 You were raised in Melbourne’s eastern suburbs by your parents until you were five years old, when they separated and you lost contact with your father. Your mother moved several times in order to evade your biological father.
35 Since that separation you continued to be cared for by your mother, who works as a teacher and librarian, and by your grandparents. Your grandfather became your father figure until he passed away when you were 13 years old. You have not come to terms with this loss. However, you described your childhood as relatively happy and you enjoyed a good relationship with your mother, grandparents and your half-sister. You continue to be supported whilst in custody, as your mother, half-sister and current partner regularly visit you.
36 You attended five different primary schools before attending Warrandyte High School and finally Blackburn Secondary College, until year 10. You completed a pre-apprenticeship at a TAFE in Croydon before finding employment in a number of different jobs over the ensuing years.
37 In 2010 you were involved in an accident whilst you were riding your motorcycle and you sustained concussion and spinal injuries after being hit by a car. Consequently, you suffered depression and underwent surgery in 2013 for a disk prolapse. This led to a 12 month recovery period. You have suffered from asthma in the past and have accrued other fractures and injuries from your involvement in sport.
Substance abuse and mental health
38 You commenced smoking cannabis when you were 13 years of age, following the death of your grandfather. You then started consuming alcohol on a regular basis in your teenage years. By your late teens you were using MDMA as well as ecstasy. This continued into your early 20s as you were ‘often partying and clubbing’. Upon completing a term of imprisonment in 2008, your substance abuse continued, albeit it was more ‘recreational’ rather than ‘habitual’ in nature.
39 I am assisted by a psychological report which was prepared by Mr Ian Mackinnon, dated 8 October 2017,[15] which was prepared for a plea hearing in relation to previous offences heard before his Honour Judge Taft in October 2017. At the time of Mr MacKinnon’s assessment you appeared to be suffering from a depressed mood disorder and a poly-substance abuse disorder, which was in remission as a result of your being in custody. Mr Desmond, who appeared for you at the plea hearing in this matter, accepted that no Verdins principle was engaged in your case.
[15]Exhibit D2
40 Mr Mackinnon opined that you may benefit from resuming psychological therapy, as well as commencing an antidepressant medication treatment regime upon your release from custody. However, he concluded that, ‘Should Mr Schneider be imprisoned for a significant period for the current matters [being the matters before Judge Taft], he appears generally able to manage himself satisfactorily enough in the prison environment.’
Criminal history
41 You have a criminal history which dates back to 2004. Although the majority of your previous offending relates to motor traffic matters, including a number of drive whilst disqualified charges, you have a prior conviction for possessing cannabis and a prior finding of guilt for resisting police. You also have a history of breaching court orders; namely, two counts of breaching an intervention order in 2004, for which you were convicted and fined an aggregate of $750, breaching a suspended sentence in 2005 and failing to comply with an intensive correction order in 2007. You have received multiple terms of imprisonment.
42 Of more significance are your two previous appearances in this court. In August 2006 you pleading guilty before his Honour Judge Nixon to aggravated burglary, armed robbery and other dishonesty offences. You were sentenced to a total effective sentence of three years and six months’ imprisonment with a non-parole period of two years. The aggravated burglary and associated offences arose from an agreement between you and two co-offenders to enter an occupied house, believing that you would be able to steal cash and drugs from the occupants. A baseball bat was used to strike the front door and smash a window. Jewellery and other items were taken and a demand for drugs was reinforced with a baseball bat.[16]
[16]See DPP v Schneider, unreported, County Court of Victoria, Judge Taft, 1 December 2017 [44]
43 More recently in 2017 you pleaded guilty before Judge Taft to offences committed between 1 November 2015 and 27 February 2016 comprising two charges of attempting to pervert the course of justice, two charges of common law assault, and single charges of criminal damage, reckless conduct endangering persons, recklessly causing injury, and carrying an unregistered general category handgun. A related summary offence of committing an indictable offence whilst on bail was also dealt with by his Honour, which related to the offences you committed on 1 November 2015.[17]
[17] His Honour’s Reasons for Sentence dated 1 December 2017 were exhibited as Ex P2
44 While these are not prior convictions, but subsequent offences,[18] they are of concern because they also occurred in the context of domestic violence. Your then partner was subjected to an episode of significant and protracted physical violence which took place in a public area. Members of the public became involved, whereupon you produced and brandished a loaded handgun. While in custody on remand for those offence you attempted to coerce the victim (who is not the victim in the present matters) into withdrawing an interim intervention order she had taken out against you. You then engaged in a sustained effort to pressure her into withdrawing the statement she had made against you to police. You also pressured you mother into providing a false document in support of a bail application.
[18] The offences were committed on 1 November 2015, and between 5 November 2015 and 27 February 2016
45 For these offences you were sentenced on 1 December 2017 to a total effective sentence of four years and nine months’ imprisonment with a non-parole period of three years and six months. You are currently serving this sentence. In the course of sentencing you his Honour noted that your ‘future prospects [of rehabilitation] can only be viewed as most guarded’. I concur in that assessment.
46 You have been in custody since 1 November 2015. There is no pre-sentence detention to be declared in the present case. Clearly, the totality principle will be a significant sentencing consideration in your case and I will need to fix a new single non-parole period pursuant to s 14 of the Sentencing Act 1991. I have been advised that the earliest date you would be eligible for parole under the sentence you are presently serving is 1 May 2019.
47 The matters which brought you before Judge Taft have further relevance. While subsequent convictions cannot be taken into account in the same way as prior convictions can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are also relevant to my assessment of your prospects of rehabilitation.[19]
[19] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–1 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]–[78] (Santamaria JA)
Mitigating circumstances
48 You have pleaded guilty to all the charges on the indictment. However, I accept the prosecutor’s submissions that yours is a relatively late plea.[20] I accept as a fact that the first offer to plead guilty to the present charges – following negotiations which resulted in a number of more serious charges, including two rape charges, being not proceeded with – was made late on 5 April 2018 at a stage in the proceedings where a trial was listed to commence on 9 April 2018. You were arraigned and pleaded guilty to the present indictment in this court on 10 April 2018.
[20] See Prosecution Submissions on Timing of the Plea, dated 6 June 2018, Ex P4. I note the defence did not respond to these submissions other than to confirm the oral submissions made at the plea hearing.
49 According to the chronology filed with the Summary of Prosecution Opening for Plea,[21] which was not put in issue by your counsel, a filing hearing took place in the Magistrates’ Court on 25 February 2017 and a contested committal hearing was held on 3–4 August 2017. An initial directions hearing was held in this court on 7 August 2017. As I noted earlier, you pleaded guilty to unrelated matters before Judge Taft on 11 October 2017 and you were sentenced by his Honour on 1 December 2017. The final directions hearing in this matter was held on 2 February 2018, where the trial date of 9 April 2018 was confirmed.
[21]Ex P1
50 I am of the opinion that there was no legitimate forensic advantage to be gained by you in not indicating early in the proceedings your preparedness to plead guilty to the present charges. In my opinion, it would first have been reasonable for you to have entered pleas of guilty to the present charges at an early stage in the Magistrates’ Court proceedings. I note defence counsel’s very fair concession that the complainant was extensively cross-examined at the committal hearing regarding the assault allegations to which you have pleaded guilty before me and very little time was spent in cross-examination on the rape allegations.[22] In my view, this case is distinguishable from cases such as Cameron v The Queen,[23] Atholwood v The Queen,[24] and Nash v The Queen.[25] Rather, it is more closely aligned with the facts in the Court of Appeal’s decision in Maybus v The Queen.[26]
[22]See Plea Transcript (‘T’) 39.27–40.5
[23] (2002) 209 CLR 339, 345–6 [20]–[25] (Gaudron, Gummow and Callinan), 356 [56], 363-4 [75] (Kirby J)
[24] (1999) 109 A Crim 465, 468 (Ipp J)
[25] (2013) 40 VR 134, 143–4 [41]–[47] (Priest JA, Coghlan JA agreeing)
[26][2017] VSCA 125 [35]–[49] (Osborn and Kaye JJA), contra [56], [58]–[62], [66]–[69] (Croucher AJA)
51 Nonetheless, your pleas of guilty are not without significance and you will receive a sentencing discount accordingly. Your pleas have utilitarian benefit in saving the time and cost of a trial and, importantly, in sparing the complainant the undoubted additional trauma of having to give evidence in the trial. Your pleas also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice.
52 Your counsel effectively conceded that there was no evidence of remorse beyond what is reflected in your pleas.[27] There is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse.[28]
[27]T 38.31–39.20.
[28]See Barbaro v R (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA)
53 Your counsel submitted that you have reasonable prospects of rehabilitation based on the following circumstances:
(a) You have acknowledged your offending and entered a plea of guilty.
(b) You have the support of your mother and your current girlfriend upon your release.
(c) You have employment available upon your release, as a friend’s father is a plumber by trade and prepared to offer you employment with him.
(d) You have used your time in custody productively, working as a billet and undertaking courses to reduce your reoffending, including the completion of a Men’s Behaviour Change Program and alcohol and drug programs.
(e) You have undergone numerous drug screens whilst in custody, which have all returned negative results for illicit substances.
(f) There are no other matters pending or outstanding.
54 Tendered on your behalf on the plea hearing was a certificate of completion of a ‘24 hour Ice Addiction Program’ dated 20 December 2017, a ‘Long Program Completion Advice’ dated 21 December 2017 in relation to that program and an undated certificate of completion of a ‘Men’s Behaviour Change Program’.[29] You have also completed a ‘24 hour (closed) Drug and Alcohol Program,’ a ‘6 Hour AOD & Depression Program,’ a ‘6 Hour Ice Effects Program’ and a ‘Coping with Change Program’.[30] You have completed some units of a Certificate II in Cleaning Operations with Box Hill Institute.[31] Moreover, you have a number of ‘clean’ urine samples covering the period 15 December 2015 to 11 September 2017.[32]
[29]Ex D4
[30]Ex D6
[31]Ex D6
[32]Ex D5
55 This all augers well for your prospects of rehabilitation, but you are presently in a controlled environment and the real test will come when you are at liberty in the community. In light of your prior criminal history, the subsequent offences and the serious nature of the assaults giving rise to the present offences, I can only adopt a cautious approach towards your prospects of rehabilitation.
56 Delay is a relevant mitigating factor in your case. The present charges were committed by you between 12 November 2011 and 31 December 2012.[33] According to the Chronology,[34] the victim made a statement of no complaint in August 2012. For reasons which are unclear police recommenced their investigation into these matters in January 2015. You were arrested, charged and remanded in custody on 1 November 2015 on the matters for which you were sentenced by Judge Taft. You were interviewed in respect of the present charges on 1 February 2017 and exercised your legal right to decline to answer questions. You were charged with these offences on 6 February 2017. Accordingly, you have had these matters hanging over your head for some 18 months. In that time, as I noted earlier, you have taken a number of positive steps towards your eventual rehabilitation. I take these effects of delay into account in your favour.
[33] Although I note the complainant’s complaints to police were made on 13 November 2011, 10 July 2012 and 11 April 2016.
[34] Part Ex P1
57 Whilst more a product of the course these proceedings have taken rather than an effect of delay, I also take into account that you have lost the opportunity of having these matters dealt with at the same as you were sentenced on the subsequent matters by Judge Taft in December 2017. I will moderate the order for cumulation of the sentence I am about to impose on the sentence you are presently serving to reflect this circumstance and give effect to the totality principle. Nonetheless, it must be observed that the present offences are entirely unrelated to those for which you were sentenced by Judge Taft.
58 I also take into account that whilst on remand for these offences you have had periods of ‘lock-down’ which has rendered your time in custody more onerous and limited your capacity to access certain rehabilitative programs. However, this situation has abated since you have become a sentenced prisoner.
59 I have had regard to current sentencing practices in relation to the offences before me in light of the recent decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[35] It is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases given the wide range of offending conduct which can constitute the offence of common assault and the myriad of personal circumstances pertaining to individual offenders. For the reasons given earlier,[36] I am of the view that your offending is a serious example of this offence. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
[35] (2017) 91 ALJR 1063
[36] See above paras
60 It goes without saying that by reason of your current sentence and the serious nature of your offending conduct, the only sentence I can impose upon you is one of immediate imprisonment. You counsel accepted this was so.
61 I consider it is appropriate in this case to impose an aggregate sentence of imprisonment on all charges. They form a series of offences of the same or a similar character.[37] They were all committed against the same victim, in similar circumstances, against a background of ongoing domestic violence directed by you against your former partner.[38]
[37] See Sentencing Act 1991 s 9
[38] See DPP v Frewstal Pty Ltd (2015) 47 VR 660, 670 [44] (Maxwell P), 683 [115] (Priest and Kaye JJA)
Application of sentencing principles
62 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances.
63 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
64 General deterrence is an important sentencing consideration in sentencing you for these offences. Just punishment and denunciation must also be given primary consideration in my instinctive synthesis. Moreover, I am of the view that, in your case, specific deterrence and protection of the community are also required to be given some weight, in light of your prior criminal history, your subsequent offending and the nature of the offending conduct giving rise to the present charges. I can only adopt a cautious approach to your prospects of rehabilitation.
65 Stand up Mr Schneider
On the charges of common assault (charges 1 to 14) you will be convicted and sentenced to an aggregate term of imprisonment of 3 years.
I order that two years of that sentence be served cumulatively on the sentence you are currently undergoing.
Pursuant to s 14 of the Sentencing Act 1991 I fix a new single non-parole period in respect of all sentences you are to serve or complete of 25 months’ imprisonment commencing today. That adds a little over 16 months to your present non-parole period.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 4 years’ imprisonment. I would have cumulated 3 years of that sentence on the sentence you are presently undergoing and I would have fixed a new single non-parole period which would have had the effect of adding 24 months to your existing non-parole period.
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17
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