Director of Public Prosecutions v Shaw

[2016] VCC 2013

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR-16-00322

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG SHAW

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	3 October 2016
CASE MAY BE CITED AS:	DPP v Shaw
MEDIUM NEUTRAL CITATION:	[2016] VCC 2013

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr J. Anderson
For the Director of Public Prosecutions	Mr D. O'Doherty

Pages 1 - 14

 

 

HIS HONOUR:

1Craig David Shaw, you have pleaded guilty to one charge of aggravated burglary, which carries with it a maximum penalty of 25 years' imprisonment.  You have also pleaded guilty to one charge of intentionally causing serious injury, which carries with it a maximum penalty of 20 years' imprisonment, and a third charge on indictment of criminal damage, which carries with it a maximum penalty of ten years' imprisonment.  In addition you have pleaded guilty to a summary offence of contravening a family violence final intervention order, which carries with it a maximum penalty of two years' imprisonment and/or a fine.

2The circumstances surrounding your offending are as follows.  At the time of the offending you were 47 years of age and are now 48.  You were living in Orbost and your victim, Belinda Kerr, your previous partner, was aged 50 years old and living at the Road Nite Caravan Park in Lakes Entrance, where she was the live-in manager.  The two of you had been in a relationship for about two years but some six months prior to the offending the relationship had ended.   A final intervention order was taken out on 27 May 2015, and was still active at the time of the events that bring you before me.  Those events occurred on 8 November 2015, a little over some five months after the final intervention order was taken out.

3Your victim was a woman of small stature, contrast to you a man of considerable stature.  She was at home at the caravan park.  Throughout the day and evening there had been mobile phone contact between the two of you and as a result she contacted police to report a breach of the intervention order.  At about 6.40 pm police attended at her address in relation to the breach.  She stated at that stage she did not want to make a report, as it was her day off and she had been drinking.  She stated she had no immediate concerns in relation to you and would report the matter to the Lakes Entrance police the following day.

4As events would transpire her lack of concern was to be proven wrong, for some three hours later, at 9.30 in the evening, you had hitchhiked your way from Orbost, arriving at her address.  It is significant that you had to travel that distance by that method; leaving it open for you to reconsider the course of conduct that you later engaged in.

5Upon arriving at her premises you forced entry into a side door by throwing no less an object than a pitchfork through a glass panel.  That pitchfork landed inside the lounge room where she was seated on a couch.  You then entered her home by climbing through the glass panel, the charge of aggravated burglary, the intent specified there was that you intended to commit an offence involving an assault upon a person in that premises.

6You entered the premises and immediately attacked your victim, your previous partner.  You punched and kicked her numerous times to the head and body.  Not satisfied with that, you then armed yourself with a number of knives from the kitchen and a red vase with which you struck over her head.  She stated she lost consciousness, waking up on the couch.  You continued to assault her by punching, kicking, pulling her hair out and threatening her with knives.  I have viewed photographs of the scene and can see clumps of hair in different places.

7You poked her in the stomach with a knife and her fingers were cut by the blade as she resisted what she believed were attempts by you to stab her.  You also held your forearm across her throat, choking her.  At one stage you whispered in her ear: "We're both doing to die tonight.  The bullet's going to go straight through me into you and then I won't have to worry about what you're up to."

8Those events represent the factual scenario relating to Charge 2; intentionally cause serious injury. This is serious injury as a result of an amendment by Parliament to the definition of injury, which now requires that the injury, to be a serious one, must be substantial and protracted, as will be revealed.

9My sentencing remarks will show that there is no doubt that the injuries that you inflicted upon your victim were both substantial and protracted.  Not only did you assault your victim in the way in which I have described, you damaged her property; including the television and the coffee table, without any lawful excuse.

10About five minutes after your arrival, at 9.35 police received a call to re-attend at your victim's address in relation to a "family dispute".  They knocked on front door ten minutes later.  You asked who they were without opening the door.  When informed it was the police you then yelled aggressively "Fuck off, I've got a knife", and made threats including threatening to cut the victim's throat.

11At one stage whilst the police were attempting to negotiate with you, you drew the curtains and police observed you standing at the front window holding your victim by the hair with a knife at her throat and threatening to stab her unless "they fucked off".  You repeatedly told the police to "fuck off" and that you were going to slit your victim's throat.

12The police could hear the victim calling out to you to let her go.  You then finally dragged your victim out of the unit by her hair and dumped her unceremoniously on the front lawn.  As if it were not enough that you should barge through, breaking into her home, assaulting her, damaging her property, threatening her, you then treated her like a rag doll.  You then charged at the police who used OC foam on your face to subdue you and you were then arrested.

13It is plain from what I have said that you arrived intending to assault your previous partner.  You used no self-restraint, you were in a rage and you maintained your rage even when the police arrived and started to attempt their negotiations with you. You responded in the way in which I have indicated - brazenly presenting your victim as an object, which you, using brute force, had subdued, thus the attack that I have described when you first arrived continued, even in the presence of the police.  Those circumstances are, in total, the circumstances relied upon by the prosecution in relation to the second charge of intentionally causing serious injury.

14As a result of this attack your victim she suffered multiple injuries, including a closed head injury, multiple lacerations to her fingers, hand and face, multiple facial fractures, left clavicle fracture and left pelvic fracture.  She was airlifted to the Alfred Hospital where she remained for some 14 days, undergoing a number of surgical operations and then staying on for a further three days for rehabilitation.

15Examination at the scene located the pitchfork inside the lounge room area, clumps of hair throughout the premises, three knives on the lounge room floor - one of which was broken - and a blood splatter on the wall of the lounge, behind the couch.

16Her victim impact statement, dated 16 March 2016, reads as follows:

"After being in hospital (The Alfred) for six weeks, three surgeries on my shoulder (L) to put a titanium plate and five screws along my collarbone,  FACIO MAX plastic surgery on my face to rebuild my forehead, cheekbone, nose, and a titanium floor beneath my right eye, which I will eventually lose my sight in, plastic surgery on my (R) hand from the knife injury, a lot of pain with a fractured pelvis, the services (domestic violence - Safe Steps) uprooted me and put me in a women's refuge.  I am very fearful, and I am on anti-depressant medication to help me as well.  I was then sent to Queensland, to a house run by a private worker."

17She continued later:

"After about 4 weeks and a lot of medication and healing, I made the decision to come back to my home.  I was scared out of my wits and needed a lot of contact with the domestic violence workers, and my counsellor, Leonie Rogers, at LEAHACS (Lakes Entrance)."

18Later on she continued:

"I am having a very hard time emotionally, dealing with memory loss, the headaches that I get put me to bed, the prospect of having to have more surgery on my face and shoulder, the loss of my safety, I have nightmares now, I wake up sweating and remembering other things from that night. 

I can't walk up in the street anymore without having to sit down and rest, I have to get new glasses under prescription.  My whole body just hurts."

19Having been arrested you were then conveyed to the Bairnsdale Police Station where a video recorded interview was conducted.  You made full admissions regarding the incident, stating that your victim had been driving you crazy with text messages, and that you went to her home intending to bash her new boyfriend.  Once inside, realising that there was no-one there other than the victim, you immediately started to assault her.

20You said that you were sorry for what you had done, as it may teach the victim a lesson not to do what she had done to you to another male.  That latter part of what you have said was meaningless twat, however, you did say in your interview at p.705 of the depositions, question 288 and following:

"Question:  "Do you think the reason for her having the knife was she was scared of what she was going to do?"  Answer:  "Yep."  Question:  "Yep?"  Answer: "Yeah, she would have been scared."  Question: "And why would she have been scared?"  Answer: "Because she knows how I can go off."  Question:  "Yep.  Is that from previous incidents, or?"  Answer:  "Yeah."  Question:  "Okay, all right."  Answer:  "Well, I've been off me medication, so."  Question:  "Yeah?"  Answer:  "I'm usually on an injection and that and I haven't had it for a while."  Question:  "Is there anything else you think you can add about what happened tonight, or?"  Answer:  "I was an absolute arsehole, that's all it was.  I've given her a hiding."  Question:  "Yep?"  Answer:  "And regret doing it now."

21Plainly, at the time you did not regret anything you were doing.  You knew, because she knew that you, to use your phrase, "go off", nonetheless, and on your journey hitch hiking from Orbost to Lakes Entrance contemplating your next move, you did not desist.

22You come before the court having been dealt with, by the age of 47, on five separate occasions.  The first occasion you were dealt with at the Frankston Magistrates' Court on 26 August 1994, charged with possession of cannabis, use cannabis and traffic cannabis, upon which you were convicted and placed on a community based order for 12 months and to perform 250 hours of unpaid community work.  You complied with that order, however you were further dealt with on 11 June 1999; your second court appearance, charged with dishonestly undertaking in the realisation of stolen goods, and were fined $750.

23Neither of those two court cases are of any particular moment other than the fact on the first occasion you were placed on a community based order.  However you came before the same Ringwood Court again on 2 February 2010.  On that third court appearance you were charged with criminal damage, behave in a riotous manner in a public place and assault with a weapon, three crimes of either direct or relevant violence.  You were dealt with by way of a without conviction adjournment.  You complied with the conditions of that adjournment but then found yourself again before the Magistrates' Court at Orbost on 5 September 2013 when you were there charged with recklessly causing injury.  This is the first of the four violence related matters that you have been dealt with and on that occasion you were fined $300 with conviction.

24Your final matter before the courts occurred at the Bairnsdale Magistrates' Court on 31 July 2014.   This is your fifth court appearance and on that occasion you were being dealt with for your fifth offence of violence, another charge of recklessly causing injury which I am told involved the same victim, your then partner.  On that occasion you were placed on a community corrections order for a period of nine months which would have expired in April 2015.  Seven months later you committed these offences, and as I have observed, at a time when the final intervention order was active, its aim being to protect your victim from you.

25The Court of Appeal has, in recent times, dealt with two matters of relevance; the first matter of Himmet Filiz v The Queen [2014] VSCA 2012, where, in the joint judgment of Maxwell P and Redlich JA, their Honours, at paragraph 21, said:

"Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner.  Of particular significance is the fact that the applicant was already subject to a Family Violence Intervention Order.  Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage.  It goes without saying that such a response, to what is a common human situation, is utterly unacceptable.  This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim's protection."

26Every sentence in that paragraph is apposite to this case.  The following month the court dealt with the matter of Gale v The Queen [2014] VSCA 168. In the joint judgment of Weinberg, Whelan and Beach JJA, Their Honours, at paragraph 40, wrote:

"Despite the Crown's concession that the sentence on charge 3 was manifestly excessive, we consider that the sentence of three years and six months with the aggravated burglary was within range.  The applicant has not satisfied this Court that the departure from the principles laid down in Hogarth is warranted.  This was a serious example of what might be described as ‘intimate-partner’ aggravated burglary.  It could easily have had catastrophic consequences.  The applicant broke into his ex-partner's home armed with a cattle prod, intending to confront its sleeping occupants, in breach of the undertaking given nine days earlier.  These types of incidents all too often conclude with a tragic outcome.  General deterrence is paramount.  Specific deterrence also needs to be accorded considerable weight, particularly in light of the applicant's breach of the undertaking.  Society demands that behaviours such as this be punished severely.  We would therefore affirm the sentence imposed by the sentencing judge in relation to charge 3."

27The factual circumstances in that case are relatively benign compared to what is before me, save in relation to the fact that an intervention order was enforced there as is the case here.  You are to be dealt with in relation to this offending in aggravating circumstances, that you did all of this at a time when an intervention order designed to protect your victim was in full force, and recently so.

28You engaged in this conduct having had ample opportunity to desist.  You continued in your attack upon her even in the presence of the police and you treated her with complete contempt, throwing her out, having dragged her by the hair and dumping her in the front grass of her own home.  The injuries that she has suffered doubtless are at the higher end of this sort of conduct, and further, those injuries and the effects upon her both physically and mentally, will continue to haunt her.

29Finally, not only did you commit this offending whilst an intervention order was in place, you did so having been dealt with in relation to other offences of violence - and most recently, in relation to your victim - and had been placed on that charge of recklessly causing injury on 31 July 2014 on a nine month community corrections order.

30I now turn to your personal background.  It is a personal background marked by abuse, lack of opportunity and a long-term history of mental illness.  Importantly, however, your counsel has correctly not pursued any suggestion that your mental illness in any way caused or contributed to your conduct on this particular evening, therefore you are to be treated as a person who is morally and legally culpable for what you did on this night.

31A significant body of material was placed before me during the course of your plea, made on your behalf by Ms Blair; and a most helpful plea it was too.  It is convenient for me to deal with that history as contained in the exhibits which became Exhibits CS1 to CS4.

32In CS1, the report of Dr Alan Reid, general practitioner, dated 2 March 2106, he writes:

"I most recently saw Craig on 6/11/2015 [I interpolate that is but two days prior to this offending].

Craig has a long and complex history of mental illness and was previously diagnosed with paranoid schizophrenia, anti-social personality disorder and depression/anxiety. 

He has more than once attempted suicide by overdose, and has required Intensive Care Unit Admission on occasion. 

He has a long history of poly-substance abuse and is Hep C positive.  I believe he was trying to get off drugs.  Craig was disorganised and homeless for much of the time while he was here in Orbost, though housing was arranged for him and I believe he was living in a house prior to his arrest.  

He has poor impulse control and an explosive personality."

33In the report of Jeff Forsyth, psychologist, dated 11 April 2016, Exhibit CS2, Mr Forsyth observed, among other things:

"Mr Shaw initially presented with significant symptoms of depression and anxiety that had been present for at least two weeks prior to attendance.  These included (but not limited to): depressed mood and diminished interest in normally pleasurable activities, notable decrease in quality and quantity of sleep; frequent episodes of elevated psychological arousal and agitation; hypersensitivity to criticism and fear of losing control.  According to the criteria specified in the DSM-5 (American Psychiatric Association; 2013), Mr Shaw's presentation was consistent with a diagnosis of Major Depressive Disorder (296.22; single episode, moderate) with anxious distress (Mild).  His appearance was unkempt and his clothing dishevelled; however, this was consistent with his recent lack of suitable accommodation and facilities for self-care and grooming.  Sessions were held at a Community Services building separate from the hospital.  Staff at this facility were predominantly female.  At no time during his attendance to treatment did Mr Shaw give cause for concern about his manner or behaviour.  During the fourth session of treatment, there was a noted improvement in Mr Shaw's presentation and appearance, including newer and cleaner clothing and a marked decrease in agitation.  Mr Shaw participated willingly and was completely co-operative in each session, often arriving well before his appointed time.  He demonstrated a genuine desire to resolve the points of interpersonal and social conflict contributing to his distress."

34It is interesting to note that the sessions that were the subject of those observations were as described in the first paragraph of Mr Forsyth's report, which reads:

"Mr Shaw was referred for psychological counselling and support by Dr Alan Reid, of Orbost Medical Clinic, on 24/08/2015.  Treatment was provided for a period of ten weeks, from 28/08/2015 to 2/112015.  Mr Shaw attended six sessions, at regular weekly intervals between sessions 2 & 5, with a week's interval between sessions 1 & 2 and 5 & 6.  Following a review of progress with Dr Reid, additional sessions were approved.  Mr Shaw then attended a further three sessions at weekly intervals between 20/10/ 2015 and 2/11/2015."

35Mr Shaw had agreed to attend a further session on Monday 9 November 2015.  He could not, of course, because he was then in custody, thus it is plain that Mr Shaw had been receiving appropriate treatment, including psychological treatment, leading up to the period immediately before the commission of these offences.  On the material before me this was of little, if any, avail.

36In the psychiatric report of Dr Gunvant Patel dated 12 September 2016, which became Exhibit CS4, Dr Patel elaborately sets out your personal history.  It details, among other things, that your mother became a heavy alcohol user.  He states that you witnessed severe physical assaults against your mother by your father on a daily basis in the year prior to her leaving him, when you were about six years of age.  He writes:

"After the parents separated his father had visitation rights one day a week which he fulfilled over the next two years.  However according to Mr Shaw these visitations were not particularly welcome as his father continued to be a heavy user of alcohol.  Mr Shaw stated that he subsequently had no contact with his father until turning 18 when he moved to Queensland to live with him.  Mr Shaw stated that he lived with his father for five years and that whilst they were both using alcohol and often fought they were also able to over that time develop a significant connection.

"Mr Shaw stated that at primary school he was ‘bullied a lot’ because he was withdrawn and has ‘always been a loner’.  Nevertheless he stated he was able to make some friends.  At this stage the bullying consisted of a verbal nature only.  Mr Shaw stated that he was not exhibiting any problems with his behaviour, nor any problems with being in a classroom environment or with being able to study.  In particular he enjoyed playing football and studying maths.

"Mr Shaw stated that in secondary school he began to be physically as well as verbally bullied because of his shyness and tendency to be by himself.  Mr Shaw stated that in Year 8 he ‘turned to drugs’ and started to smoke and drink, such that he was often suspended and eventually expelled in Year 9 at the age of 15.  Mr Shaw stated that he was introduced to drinking and smoking by friends of his younger brother.  Mr Shaw stated that he was not in any trouble at secondary school for more serious infractions."

37Apparently when you left school your literacy was poor and you still struggle to read the newspaper.  As to your family history Dr Patel states:

"Mr Shaw's middle brother committed suicide by overdosing in 2003 at the age of 35.  He was under the care of mental health services with a diagnosis of schizophrenia and was also an abuser of alcohol.  Mr Shaw's younger brother is currently coming to the end of a lengthy prison sentence following his fourth armed robbery.  He has a history of depression, possibly Bipolar Disorder, as well as heroin and ice dependence.  Mr Shaw stated that he has not spoken to his brother in eight years. 

Mr Shaw stated that he is particularly close to his mother and rings her every second day.  He is very concerned about how he will cope if she dies whilst he is in prison." 

38Your mother is, as I understand it, suffering from terminal cancer.

39As to your past psychiatric history, you indicated to Dr Patel, and I accept, that you have ended up in psychiatric units 25 times after trying to kill yourself.  As to the seizures he notes:

"Mr Shaw stated that he had three seizures immediately following the use of ice in September of 2015 but has not otherwise had any seizures in the past."

40As to forensic history Dr Patel states:

"Mr Shaw stated that he has been charged on approximately six occasions over the last 10 years, the last being three years ago for assaults.  Mr Shaw stated that initially most of these were due to ‘other people starting it’ but later stated that perhaps half were caused by him being unable to tolerate verbal conflict.  As a result he would then punch the person in the face.  Mr Shaw stated that immediately after these acts he would feel remorseful and he feels now that he could have spoken to them instead of losing control."

41As to his opinions Dr Patel notes:

"It would appear from the available evidence that there is a good reason to believe that he has schizophrenia that is currently well-managed on his medication regime."

42And later:

"It does not appear that in the offence committed Mr Shaw was particularly influenced by the presence of significant active mental illness or a state of intoxication. 

It would appear that Mr Shaw had been engaging during the period leading up to the offence in appropriate psychological counselling which he had been finding helpful and it does not appear that there was a period of worsening mental health or depression in the period leading to the assault.  Nevertheless he was clearly at this time experiencing significant distress and despair over the loss of the relationship due to his ongoing intense attachment to the victim."

43As a result of the suggestion that there may have been some neurological based mental impairment a neuropsychological report was prepared by
Dr Matt Treeby, dated 5 August 2016, which became Exhibit CS3.  Again there is a detailed personal history outlining your substance use and medical and psychological history set out in the report.  Dr Treeby’s assessment as to your neurological functioning could not be definitive.  Dr Treeby writes:

"Taken together, these findings suggest that Mr Shaw was applying less than genuine effort at times during the assessment and he was not performing to the level of his true ability.  Given that the findings of the current neuropsychological assessment are considered to be invalid, it is not felt to be appropriate to report further on Mr Shaw's performance."

44Later, in the "Summary and Opinions" section, Dr Treby observes:

"It is regrettably not possible to make a determination as to whether
Mr Shaw suffers from any cognitive impairment given that his neuropsychological assessment and profile were considered invalid for the reasons outlined above.  It is therefore also not possible to make reliable comment as to the possible implications of his cognitive functioning on his offending behaviour."

45And in the penultimate paragraph Dr Treby concludes:

"Mr Shaw presents with several historical (i.e., static) risk factors for recidivism including early maladjustment, a history of violence, substance use problems, relationship instability, employment problems, major mental illness (schizophrenia/schizoaffective disorder), and previously diagnosed antisocial personality disorder.  He also presents with the poor ability to cope with stress and I note that there is a documented history of poor impulse control and marked anger-regulation difficulties.  I additionally note that there is a long history of expressed homicidal ideation, particularly during times when he is mentally unwell.  Mr Shaw's risk of recidivism can regrettably be considered high given these clear risk factors.  His risk of recidivism will be reduced should his mental health and substance use problems be appropriately monitored and addressed going forward.  To reduce risk to himself and others, he would certainly benefit from ongoing monitoring of a forensic psychiatrist upon his release into the community." 

46That last sentence is of course a given.

47In all these circumstances it was submitted by Ms Blair that your prospects for rehabilitation were "guarded".  At the time I agreed that your prospects of rehabilitation were guarded. However that perhaps is too optimistic an assessment.

48To your credit you made full admissions and expressed some remorse for what you did.  You have repeated to others your regret.  In addition you have pleaded guilty to these charges and have done so at the earliest possible opportunity.  Those pleas of guilty have obviated the need for your victim to give evidence in court, at the committal hearing, or during trial.  I take those pleas of guilty into account in two ways.  One, the utility of your pleas of guilty obviating the need for her to give evidence, and for a trial, and secondly, as some further evidence of your remorse, which I accept now, is genuine.

49You are presently housed at the Hopkins Correctional Centre where you are in your own cell, stabilised and receiving appropriate treatment and counselling.  You have done what your counsel described as "a lot of soul searching".  You worry for your mother, who has terminal bowel cancer, with whom you have regular phone contact.  You are "incredibly sorry" for what you did.

50Some explanation was offered by Ms Blair for your conduct, given that despite the existence of the intervention order there was clearly contact between the two of you, you travelling to see her in Lakes Entrance, she to you in Orbost, as well as other contact.  That perhaps explains some aspect of your offending but it does little to alleviate any of the concerns I have about your future and the risk of you re-offending.

51You treated your ex-partner as an object not as a human being.  Your attack on her was unprovoked, cowardly and savage.  Deterring others from attacking women who are entitled to move on in their lives without the threat of violence, indeed without actual violence, is essential in any civilised community.  General deterrence in cases such as this is best stated by the Court of Appeal in
Gale v The Queen as "paramount".  Specific deterrence, that is deterring you from further offending, particularly in circumstances where you had already been dealt with in recent times by way of a community corrections order for recklessly causing injury to the same woman and given the rage that you displayed and your conduct towards her, is also of great moment.

52Just punishment must also be a factor taken into account in arriving at the appropriate punishment and denunciation of your offending by this court is required and I have done so.

53It being conceded that an aggregate sentence is appropriate by your counsel and the learned prosecutor, I sentence you on all three charges and the summary charge, to a total effective sentence of six and a half years' imprisonment.  I set a minimum non-parole period of four and a half years.

54I state that but for your pleas of guilty I would have imposed a sentence of eight and a half years with a minimum non-parole period of six and a half years.

55I declare that pre-sentence detention, excluding today, is calculated at 330 days.  Anything further required, Mr O'Doherty?

56MR O'DOHERTY:  We'd sought a disposal order, Your Honour.

57HIS HONOUR:  I'll make those orders in chambers.

58MR O'DOHERTY:  Yes.

59HIS HONOUR:  Anything to say about that, Mr Anderson?

60MR ANDERSON:  No, Your Honour.

61HIS HONOUR:  Yes, remove Mr Shaw please.

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