Director of Public Prosecutions v Skews, Darren
[2012] VCC 361
•21 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01746
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN SKEWS |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 8 August 2011 – 8 September 2011 | |
DATE OF SENTENCE: | 21 December 2012 | |
CASE MAY BE CITED AS: | DPP v Skews, Darren | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 361 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two counts of common law assault – One count of stalking – Sentenced to $2000 fine.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Mr G. Steward | Robert Stary & Associates |
HER HONOUR:
The Charges
1 Darren Skews, at your trial in August/September 2011 you pleaded not guilty to 35 charges where the complainant was your ex‑de facto partner Rebecca Bain. The jury found you not guilty of 22 charges and were unable to reach a verdict on eight charges. On two charges there was a directed verdict of not guilty as there was no evidence with respect to these offences. However, you were found guilty of three of 35 charges, being two counts of common assault, charges 14 and 20, and one charge of stalking, charge 35.
2 The maximum penalty for common law assault is five years and the maximum penalty for stalking is ten years.
3 Once I have sentenced you on these charges this should be an end to this drawn out matter and I note this is because I granted a permanent stay with respect to the charges where the jury were unable to reach a verdict.
Circumstances of the Offending
4 The offences I am sentencing you for arise out of a volatile relationship between you and Rebecca Bain. In his report of 3 October 2012, Patrick Newton described the relationship as "typically oscillating between passionate sexual encounters and episodes of vehement arguments of almost equal intensity which in turn would be followed by further bouts of intense reconnection and passion".
5 Apparently you tried to leave the relationship on a number of times prior to the offending but the intensity of the relationship and the emotional contact between you drew you back into it so that the cycle of alternating passion and conflict were repeated regularly.
6 Having been the presiding judge at your trial I have no hesitation in accepting that this was the nature of the relationship.
7 The charges the jury found you guilty of were firstly charge 14, of common law assault, and this relates to an incident on 18 January 2009 where the complainant gave evidence that she was at the time in her lounge room when you confronted her and grabbed her arm and pulled her hair. Charge 20, also of common law assault, relates to another incident on 14 February 2009 where there was a struggle between you and the complainant. You put your finger in her eye. You pulled at her hair and hit her in the face.
8 Charge 35 of stalking relates primarily to your actions between 1 June 2008 and 15 February 2010 where you called the complainant and texted her hundreds of times. The prosecution relied on records which showed that these texts were abusive in nature.
9 There was also some evidence of you attending uninvited at the complainant's place of work and at her home.
Personal Circumstances
10 Your counsel outlined your personal circumstances to the court. Further details were contained in the report from Mr Newton. Born on 2 April 1968 in Wagga Wagga in the Riverina region of New South Wales, your parents separated when you were very young and your mother remarried when you were about eight. You gained three half siblings from this union and you were positive about your parents and siblings. You left school halfway through Year 10, obtained some factory work. You then obtained a crane licence. You worked in haulage before completing an apprenticeship as a spray‑painter and panel beater. You operated your own small business for some time.
11 Since 1990, however, you have worked mainly in the mining industry, more recently obtaining supervisory and project management positions. You still work in that industry to this day.
12 You have been in three main relationships. You were married from 1987 to 2004 and you have three children from that relationship. Your second significant relationship was with the complainant, Ms Bain. You are now currently in a relationship with Amber and you have described that relationship as being mutually caring and supportive, although there have been some problems recently due to the emotional strain of these court proceedings.
Psychological Report and Evidence of Mr Patrick Newton
13 Mr Newton reported that your mental health status and your personality adjustment were normal. However while your anger management skills were generally positive “your capacity to manage your anger is affected by your relatively unsophisticated awareness of your emotions and your rigidity in situations of conflict.”
14 In his opinion your offending was “most likely the result of the personal and situational pressures you were experiencing at the time you were in the relationship with Ms Bain, rather than the outworking of a more entrenched psychological or dispositional personality”.
15 Mr Newton considered that you would be likely to benefit from some targeted personal counselling to help you understand the conflicts in that relationship and to develop your skills in managing future conflicts in your current relationship.
16 Your prognosis was considered to be positive based on the absence of a psychological disorder and generally your work record and the support you enjoyed from family, friends and your partner as well as the adverse impact of this prosecution.
17 Mr Newton attended this court and gave some evidence. He gave evidence about a further meeting with you where he obtained details relating to an intervention order obtained by your ex‑wife. This order was apparently as a result of a heated verbal altercation between you and your wife and there was no violence involved.
18 Mr Newton also gave evidence regarding the effect of the granting of the nolle with the matters on which the jury did not reach a verdict. He said the effect of the granting of the nolle on you was that you were overwhelmed with powerful emotions and you had sought counselling at work to deal with them. Mr Newton saw this as a positive development which showed emotional growth by you.
19 Mr Newton was cross‑examined about various aspects of his report. He was shown a number of abusive texts that you had sent to the complainant and asked by the prosecutor if they changed his assessment of you. Mr Newton's evidence was essentially that they did not change his assessment of you as, “they were sent in the context of your dysfunctional relationship with the complainant” and you had acknowledged to him that you “had been wrong to engage in this behaviour”.
20 Mr Newton was also cross‑examined with respect to his opinion that your propensity to manifest overt physical violence was relatively low and that you had disavowed conflict as a means of problem solving.
21 When asked if the finding of the guilt by the jury with respect to the common law assaults was at odds with this opinion, Mr Newton gave evidence that you had acknowledged to him that violence did not work. You had developed strategies to manage ongoing situations at work and in your personal life and these strategies generally guided you.
Submissions by Defence Counsel
22 Moving on to the submissions made by your counsel with respect to your sentence. Your counsel relied on the following matters in submitting to this court that the appropriate disposition in your case was a good behaviour bond, albeit with a conviction. They were that you were a 44‑year‑old man with no prior convictions and no charges pending. With respect to this aspect of his plea your counsel relied on some 20 references that were handed up to the court, in particular the reference from your ex‑wife Joanna Skews, where she attested that over the 23 years she had known you there had been no physical violence towards either herself or your three children. In addition, that you had been supportive towards her and the children.
23 Your counsel submitted that this reference, and the many others, revealed that your offences had been out of character. I note that in these references you have been described as a genuine friend, as trustworthy and considerate, as generous and compassionate, as having a good work ethic, as being a positive team leader and good role model to younger workers.
24 While the prosecutor submitted that only two of these references revealed on the face of them that the people who had written the references knew of your offences, I accept your instructions to your solicitor that the people who wrote your references were aware of your problems and of these charges.
25 Your counsel relied on your background of steady employment and prior good character in submitting that your prospects of rehabilitation were good.
26 In addition, in further mitigation of your offending he relied on the fact that there had been a substantial delay in sentencing, some 15 and a half months from the end of the trial to sentence. The trial and delay in sentencing had caused you significant stress to the extent that you had broken down and had sought counselling through work. Mr Newton’s evidence was relied on with respect to stress.
27 Your counsel also relied on Mr Newton's report, in particular on:
· his assessment that you had no tendency to violence
· that the offences happened in the context of the dysfunctional and intense emotional relationship with the complainant
· that your mental status was normal; and
· that your anger management skills were generally positive.
28 Your counsel also relied on the fact that you have already spent some five days in custody and that you had considerable financial stress due to the trial process.
Submissions by the Prosecutor
29 The prosecutor, on the other hand, submitted that the appropriate sentence was a term of imprisonment of 15 to 25 months with a non‑parole period of 10 to 18 months. In support of this sentencing range the prosecutor relied essentially on the following matters:
· that general deterrence was an important consideration in both stalking and crimes involving violence against women;
· that the stalking had been over an 18 month period and the texts were of an abusive nature and had been unrelenting;
· that you had shown no remorse;
· that I could not be satisfied that you could contain your anger if you were placed in a similar situation in the future.
30 Your counsel in response to the last two matters mentioned (the lack of remorse and the situation in the future) submitted that I should be guided by Mr Newton's report with respect to your response to any future relationship situation. With respect to remorse, he relied on the fact that you had acknowledged to Mr Newton that the sending of the abusive texts was wrong.
31 With respect to both these matters, I accept Mr Newton's report.
Sentencing Remarks
32 Moving on to my sentencing remarks.
33 It is clear from the complainant's victim impact statement that she has been emotionally affected by your offending. Most relevant to the charges that the jury found you guilty of, is that she gets anxious and panics when she hears the phone. She hates the phone and especially hates it when it continually rings. She also has difficulty talking on the phone.
34 I have already indicated at the outset of this sentence that I accept your relationship was dysfunctional, turbulent and destructive. I accept the opinion of Mr Newton that “it was an extremely toxic relationship” and I cannot think of any other better words to describe it.
35 The jury have accepted that on two occasions you reacted to the situation between you with violence and that you sent harassing and abusive text messages to the complainant. While I accept that your reaction was totally out of character and I accept all the mitigating factors put by your counsel, I consider that a good behaviour bond is not an appropriate disposition. However, equally, I do not consider that a gaol term, either actual or suspended, is an appropriate disposition.
36 It seems to me that in all the circumstances of this case, despite the financial strains you have already borne, that the appropriate disposition is to convict and fine you on these charges. This is what I intend to do. Would you please stand up.
Sentence
37 On charge 14, common law assault, you are convicted and fined the sum of $500.
38 On charge 20 of common law assault you are convicted and fined the sum of $500.
39 On charge 35 of stalking you are convicted and fined the sum of $1,000.
40 This means that the total fine is a fine of $2,000 and I will grant a stay in relation to those matters.
41 MR STEWARD: Thank you, Your Honour. Might my instructor approach the dock, thank you?
42 HER HONOUR: Thank you.
43 MR STEWARD: It seems he has come prepared, Your Honour, he doesn't require a stay.
44 HER HONOUR: I should say in adding to my remarks I believe due to the good character references that you received that it's unlikely that you will ever be in this situation again but you have to recognise that your behaviour, and in particular I'm referring to the texting, was totally inappropriate and I believe that you have recognised that to harass someone in that fashion was totally out of the ballpark. Not appropriate behaviour at all. I accept you realise that.
45 I don't think it's appropriate in this case that there be a 464ZF. I don't see you as being someone who is going to the trouble courts on any future occasion. I don't want to waste the facilities of the State by retaining substances that won't be needed again.
46 MR STEWARD: If Your Honour pleases.
47 HER HONOUR: I don't make that order.
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