Director of Public Prosecutions v Slater
[2020] VCC 1030
•14 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR 20-00713
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SLATER |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 June 2020 | |
DATE OF SENTENCE: | 14 July 2020 | |
CASE MAY BE CITED AS: | DPP v Slater | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1030 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Baxter Ms K. Richter | Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | David Barrese & Associates |
HER HONOUR:
Introduction
1 James Jay Slater, you have pleaded guilty to an indictment containing one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of causing injury recklessly, which carries a maximum penalty of five years’ imprisonment. Two related summary matters were uplifted into the hearing of the plea in mitigation, and you pleaded guilty to both: one charge of commit indictable offence whilst on bail, which carries a maximum penalty of three months’ imprisonment and/or 30 penalty units, and one charge of contravene condition of bail, which also carries a maximum penalty of three months’ imprisonment and/or 30 penalty units.
2 The circumstances in which you came to commit these offences are set out in the Summary of Prosecution Opening for Plea dated 29 May 2020, which was read into evidence at your hearing (Exhibit A). I also received, as prosecution exhibits, an Outline of Sentencing Submissions (Exhibit B), a Victim Impact Statement from William Burke (Exhibit C), a letter from Department of Health and Human Services dated 21 June 2020 (Exhibit D), Reasons for Sentence of his Honour Judge Georgiou of this Court in the matter of DPP v Slater [2020] VCC 40 (Exhibit E) and the Reasons for Sentence of his Honour Judge Mullaly of this Court in the matter of DPP v Jason Boardman, Skye Carter; James Slater [2018] VCC (Exhibit F).
3 In the course of your plea in mitigation of penalty, your counsel filed the following material; Plea Submissions, dated 24 June 2020 (Exhibit 1), Neuropsychological Report prepared by Dr Linda Borg of Community Health Partners, dated 19 June 2020 (Exhibit 2), Certificates of Completion of a number of courses (Exhibit 3), bundle of clean urine assay results (Exhibit 4).
4 In addition to the matters developed in oral argument, I have had careful regard to each of these exhibited documents. ?
Circumstances of the offending
5 On 24 May 2019 at 12.42am, CCTV footage at 49 Vale Street, Alfredton, showed you walking through the carport area of that address carrying a white-coated metal pipe. An unidentified co-offender may also be seen wearing a hoodie and bandanna, however that person did not enter the property.
6 Living at those premises were William Burke, the victim, who was aged 51 years old at the time of the offence. The other resident, an 80-year-old woman, was not at home at the time. The residents were not known to you. At 12.45am, Mr Burke was walking towards his bedroom when he was confronted by you in the hallway area in the centre of his home. Your entry into those premises, with intent to steal and at the time having with you a metal pipe, are the circumstances of Charge 1, aggravated burglary.
7 You then attacked and bashed the victim, which caused him to fall to the ground, where he was further assaulted. The victim thought that he was about to be knocked out, and was seeing stars, so he took possession of a hacksaw blade that was on the ground and started swinging it at you. He managed to get up off the ground and took possession of a handgun from his bedroom and pointed it at you and told you to “get the fuck out of there”. He yelled out “ring the cops, ring the cops”, pretending that there was someone else in his home at the time. He chased you away and followed you out of the house and onto the road, then called police.
8 During your assault upon him, you caused a cut to the top of his head, which was later repaired at the Ballarat Base Hospital. The victim discharged himself against hospital advice the same day. This is the offending referable to Charge 2 on the Indictment, of recklessly causing injury.
9 Later, police attended the victim’s home. They observed that a glass sliding door, which permitted access to the victim’s bedroom, adjacent to a carport area, had been ripped off its tracks. Police, there, located a white-coated metal pipe, which you had left at the scene. Blood stains were also located in the bedroom and leading out of the property. The victim did not believe that the glass sliding door was locked at the time of the offence. Police analysed the glass sliding door and located your fingerprint; the white-coated metal pipe was also analysed, and your DNA was found. Your call charge records indicated that your phone was utilising phone towers in Ballarat at the time that the victim was assaulted in his home.
10 At the time of committing these offences, you were on an undertaking of bail imposed by the Melbourne Magistrates’ Court on 28 February 2019, which obliged you to appear at the Melbourne County Court on 26 July 2019, and also included a condition to remain at a Moonee Ponds address between the hours of 9.00pm and 6.00am. This is the offending referable to Summary Charge 4, of commit indictable offence whilst on bail, and Summary Charge 5, contravene condition of bail.
Arrest and interview
11 On 2 July 2019, you were interviewed by police at Sunshine. You falsely told police that you did not recall being in Alfredton in May, because you had not been to Ballarat for quite a while. You falsely told police that at the time of the offence you would have been in your home, as you had a curfew condition as part of your bail, and you explained that the only way your fingerprint could have been located at the address was if you had been at the victim’s house before with a friend. You were remanded into custody.
Plea of guilty, timing, remorse
12 You indicated your intention to plead guilty to the preceding charges at committal mention stage of your criminal proceedings. I accept and take into account, in mitigation of the sentences I must impose, that you pleaded guilty at the earliest possible stage and, as submitted by your counsel, that this plea is indicative of your remorse, as well as having utilitarian value.
Effect upon the victim
13 I have received a Victim Impact Statement drafted by William Burke, and I note from the outset I do not have regard to, or take into account, any inadmissible material. He told me of his fear and distress at being assaulted by you in his house. That distress lingers with him, and he no longer trusts people, entirely as you would expect. He told me that his home has become a fortress, and he now lives inside and stays in his bedroom at night time.
Personal circumstances
14 You are now 25 years of age, and were 24 at the time of offending.
15 You are a proud Aboriginal man, who belongs to the Yorta Yorta clan.
16 You have one full sibling, three stepbrothers, and two stepsisters. You are in daily contact with your sister, who is nine years your junior; and also in regular contact with one of your stepbrothers, who has custody of one of your children. You also used to have a lot of contact with one of your stepsisters, nine years your junior, and supported her when her partner passed away from bone cancer when she was six months’ pregnant, in around 2017 to 2018. You also had the opportunity to help her with your niece, when she was born, however your niece tragically died in you and your sister’s arms when she was six months old, as a result of complications from surgery for a chronic condition.
17 Whilst you were in custody in 2018, your stepsister’s father died, and you were not able to attend his funeral.
18 Your father spent significant periods of time in custody, mostly prior to you being born, and I note that your mother also spent significant periods of time in custody throughout your childhood. Both of your parents had issues with drugs, alcohol and violence, and you witnessed significant domestic violence and abuse in your family home whilst you were growing up. You told your counsel that if you did something wrong you would be screamed at, kicked, hit at with an open hand, hit with cords and other objects, and from the age of 16 you were punched by your father with closed fists. Your father owned an interstate truck-driving business and was away for long periods of time. You would often stay at your grandparents while your parents were not around. You consider that you never really settled anywhere as a child in light of your parents’ difficult circumstances.
19 You left home at around 15, and would periodically return, and you were officially kicked out of home at age 16, when your parents moved to Queensland without you, and without telling you. You woke up one morning and your parents were gone, and when you called them you were told they were driving to Queensland to move there without you.
20 You recall moving houses a lot as a child, and you attended about eight different primary schools. You attended school until Year 9, but you had difficulties academically and always struggled with schooling. You were bullied at school and used illicit substances.
21 You have not had consistent employment since leaving school, but you have spent time working in the construction industry and have completed a Certificate III in Civil Construction and part of a carpentry apprenticeship. You have also worked as a labourer, but have not worked for around the last three years.
22 It was submitted in accordance with the decision of the High Court in Bugmy v The Queen that your deprived background may mitigate the sentence that would otherwise be appropriate.[1] The court in Bugmy held that the effects of profound deprivation do not diminish over time and they are to be given full weight in the determination of the appropriate sentence in every case. The experience of growing up in an environment surrounded by abuse and violence may leave its mark on a person throughout life.[2]
[1](2013) 249 CLR 571, [37].
[2](2013) 249 CLR 571, [43]-[44].
23 In that case, it was noted that that was not to suggest, that an offender's deprived background has the same mitigatory relevance for all the purposes of punishment.[3] Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion, in my case, so difficult. Your childhood exposure to violence, abuse and neglect, may explain your recourse to opportunistic means to obtain property including drugs to fuel your habit. However, the inability to control your behaviour may increase the importance of the need to protect the community from you.
[3](2013) 249 CLR 571, [44].
24 You have had two significant relationships. Your first partner did not use drugs, and you stayed clean for around 12 months in this relationship from when your first child was born. That relationship ended when you relapsed into drug use.
25 Your second significant relationship, with Skye Carter, is continuing, and commenced over three years ago. Unfortunately, you both use drugs. Ms Carter has two children, and you also have two children together, 18-month old Brooklyn, who has complex medical needs, and lives with Ms Carter’s mother; and 2½ year old Harlem, who lives with your brother, Glenn. You are permitted, whilst in custody, to have regular phone contact with the children that you share with Ms Carter, though this has been impacted by COVID-19.
26 Your son, Brooklyn, has been diagnosed with DiGeorge Syndrome. At six days old, he had an episode where he was nonresponsive and stopped breathing. He was hospitalised for two weeks, then discharged home. Shortly thereafter, I was told that more breathing problems have followed, and there are issues with his airway tube being very narrow, and as a result there was a chronic issue with milk going into his lungs.
27 In his first year, he was admitted to the Royal Children’s Hospital, where he remained for a significant period of time, and was diagnosed with pneumonia, meningitis and bronchiolitis. In his early months, he had a procedure to remove part of his rib to put it in his throat to widen it and open his airways. There were adverse consequences and he was in an induced coma on life support.
28 In January 2019, when he was aged approximately five months, Brooklyn had a tracheostomy, and in February 2019, he was still on life support. Fortunately, he woke on his own and started breathing. He was eventually discharged from hospital at eight months of age after 287 days in hospital. You and Ms Carter were trained to care for Brooklyn as his primary carers, ending when you were remanded into custody in July 2019.
29 Whilst Brooklyn was on life support in December 2018, you were in custody for the matters in which Judge Mullaly sentenced you to a short sentence and a Community Corrections Order.
30 Understandably, you have found the enduring strain of the care and worry for Brooklyn very draining. The prosecution has accepted, and I take into account, that moderate allowance should be made for the strain that custody places upon you as a result of your concerns for your son. Due to a number of factors such as your drug use and criminal offending, DHHS has endorsed a non-reunification plan for you.
31 You commenced drinking alcohol and using cannabis at around 12 years of age and commenced using methylamphetamine regularly from 16 years of age, after your parents left. At the time of this offending, you were using methylamphetamine and cannabis on a daily basis, consuming around 1 gram of methylamphetamine a day and 1 to 2 grams of cannabis approximately once per week, and you were motivated to commit this offending by your intention to steal drugs which you believed you would find inside the victim’s house. You instructed your counsel that your level of drug use escalated in the context of dealing with Brooklyn’s medical situation.
32 Dr Linda Borg assessed your neuropsychological status, and has provided me with a report. In her opinion, the primary contributor to your current neuropsychological profile is considered to be a Specific Learning Disorder with impairment in reading (accuracy, rate and comprehension) and written expression (accuracy, grammar and clarity of written expression). This is otherwise referred to in empirical literature as a specific language impairment/disorder. In addition to this underlying learning disability, and in accordance with the findings of an earlier practitioner, in Dr Borg’s opinion, your longstanding history of aggressive and impulsive behaviour, as well as consistent irresponsibility, are also suggestive of underlying antisocial personality traits.
33 In her view, the structured and routine environment would likely assist your cognitive inefficiencies in custody. Hence, it is considered unlikely that your learning disability would have an appreciable impact on your experience of the prison environment. She notes that you did not report elevations in depression, anxiety, or stress associated with your current legal circumstances.
34 She also notes that you do not appear to have reliably engaged with services when intervention has been attempted in the past. She notes that you have poor emotional coping skills, which in turn impact upon service engagement and the ability to maintain abstinence from substance use. She highly recommends that upon your eventual release from custody you undertake formal drug rehabilitation, as well as ongoing psychological intervention. Engagement with male peer mentoring programs to facilitate engagement and develop more adaptive peer relations would also be recommended.
35 You have admitted a criminal history comprising six prior court appearances, commencing with the Children’s Court in August 2012. On that occasion, you appeared for a number of driving charges, and there was also a charge of reckless conduct endangering serious injury, for which you were placed on probation.
36 In January 2013, in the Children’s Court, you were placed on a Youth Supervision Order upon guilty findings for recklessly cause serious injury and affray. In the ensuing years, you were fined and placed on Community Correction Orders for cannabis possession and numerous driving offences. In October 2018, you came before his Honour Judge Mullaly in this Court, for offences of home invasion and intentionally cause injury. Ms Carter was one of your co-accused. I have been provided with Judge Mullaly’s reasons for imposing an aggregate of 37 days and a two-year Community Correction Order. It was alleged in that case that you forced a security door, taking a steel pole into a house occupied by Ms Carter’s ex-partner, the father of one of her children. You demanded the return of her child. You confronted the victim in the hallway, holding the weapon menacingly and headbutting the victim, loosening his front teeth. I must note alarming similarities between the offending in that case and your offending in this case. You will appear before Judge Mullaly for breaching the Community Correction Order in the coming months.
37 In the months prior to this offending, you had been bailed on 28 February 2019 for purposes including providing care to your son. In the period between 1 April and 4 July 2019, you engaged in three separate offending instances, one being this matter. On 4 July 2019, you were remanded into custody and I have regard to the fact that most of the time that has passed since then has been counted as pre sentence detention on the sentence imposed by Judge Georgiou In January of this year, on your convictions for kidnapping and intentionally causing injury. In that case, it was alleged that in October 2018, three days after you were sentenced by Judge Mullaly, the victim and two of his friends, were walking past your address, and you ran from the house, yelling at them forcefully that they had stolen from you. A co-accused approached the three men holding a machete, and the two of you chased after them, and you eventually caught up to two of the victims. You punched a victim on the left side of his face twice, and then grabbed him, pulled him down and kneed him to the face three times. You then assisted the person who had previously been carrying the machete in an act of kidnapping the injured victim, by you being a passenger in a car driven by that accused, into which the victim was forced. On the charge of kidnapping, you were convicted and sentenced to a term of imprisonment of two years and two months, and on the charge of intentionally causing injury, you were convicted and sentenced to a term of imprisonment of 12 months, six months to be served cumulatively upon the kidnap charge. There was another offence, and the total effective sentence was declared to be two years’ and nine months’ imprisonment, with an order that you serve a minimum period of 22 months before becoming eligible for parole. On 28 January 2020, upon his Honour passing sentence, he reckoned 258 days of pre-sentence detention, so that your earliest release date under that sentence would have been 14 March 2021.
38 I therefore note and take into account a number of matters arising from the service of your current sentence.
39 Firstly, you have been in custody since July 2019. The punitive effects of the sentences that you have been ordered to serve, since your commission of these offences have already commenced.
40 Secondly, your time in custody has been a productive one, and I commend you for this. You have completed the following courses; a three-day Beyond Survival Men’s Cultural Healing Program, a six hour Ice and Me, a 12 hour Keeping Your Cool, a Healthy Balance program, and a Skating on Ice program and a 24 hour Parenting Inside Out program.
41 You have also managed to abstain from illicit drug usage whilst in custody.
42 Thirdly, since you have been remanded into custody, the devastating and stressful potential risks of the COVID-19 virus have become known; this is particularly so in relation to Aboriginal prisoners. This affects the conditions in which you serve your sentence, to which I have regard and take into account. For instance, the availability of in person visits, of courses, and of suitable work to pass your time are minimised and suspended.
43 And finally, I must give effect to the totality principle of sentencing, and whilst I intend to impose individually appropriate sentences, I will reduce the orders for cumulation to ensure the total effective new sentence gives effect to the totality principle, taking into account the overall criminality of the offences the subject of that and this court appearance, and then set a new single non-parole period, to replace the minimum term imposed by Judge Georgiou, as I am required to do by s 14 of the Sentencing Act1991 (Vic).
Objective gravity of the offending
44 In my view, these are serious and concerning offences. You entered the victim’s home, in the small hours of the morning, with intent to steal drugs inside. You were carrying a pipe which could have been used as a weapon. You then subjected the victim to a terrifying attack in his own home which continued after he was lying on the ground.
45 This behaviour is intrusive, brutal, and indifferent to the fear and suffering of others.
Relevant sentencing principles
46 I take into account the purposes for which sentence must be imposed, including the need for deterrence, both general and specific.
47 The sentence I will impose will punish you and denounce your behaviour and allow for community protection, whilst allowing for your continued efforts at rehabilitation. Like Judge Georgiou, I consider that your prospects for rehabilitation are guarded, as a result of your long history of drug abuse and offending behaviour. You were and still are a young man, with children to raise and care for, and there is every reason for you to pursue a life that is drug free once this sentence concludes.
Sentence
48 On charge 1, of aggravated burglary, you are convicted and sentenced to two years’ imprisonment. This is the base sentence.
49 On charge 2, of recklessly causing injury, you are convicted and sentenced to nine months’ imprisonment; three months of this sentence is to be served cumulatively upon the base.
50 On related summary charges 4 and 5, you are convicted and sentenced to an aggregate of one month imprisonment, wholly concurrent with other sentences.
51 This is a total effective sentence of two years and three months’ imprisonment, and I order that 12 months of that sentence be served cumulatively upon the sentence currently being served, in order words it is my intention that Judge Georgiou’s sentence of two years and nine months’ imprisonment as a head sentence now be three years and nine months.
52 I must set a new single non-parole period under s 14 of the Sentencing Act, fixed by reference to the total sentence to be served by you, considering the global period constituted by the original sentence and the new sentence I have imposed.
53 Your new overall non parole period is two years and nine months, with the commencement date being the date of commencement of His Honour’s sentence.
Section 6AAA declaration
54 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to three years’ imprisonment.
55 HER HONOUR: Now, the new period of PSD that I must reckon. 426 days, agreed between the parties? I see a nod. Yes.
56 MS RICHTER: Yes, Your Honour.
57 HER HONOUR: Thank you. I will make the forfeiture order requested. That is the white coated metal pole. Now, before I leave the bench, and this is a comment rather than a reason for sentence, you will note that that ends up being - it looks like an anomaly in the sense that I've imposed a sentence that looks like it will now go for two years, three months on the top. It doesn't, because of the PSD order. Does that make sense?
58 MS RICHTER: Yes, Your Honour.
59 HER HONOUR: Yes. And though that looks a little artificial, it's not artificial in any respect, because I - and in fact it's the only way of doing it, by reason of the PSD calculation. So do either of you take any issue, and this is not your last opportunity, with the sentence in relation to how I've expressed it?
60 MS RICHTER: No, Your Honour.
61 HER HONOUR: Thank you. Ms Anderson?
62 MS ANDERSON: No, Your Honour, no issues.
63 HER HONOUR: All right. As I say, that's not the last opportunity, so if once you get back to chambers and you have a look at the order, that there's a mathematical slip, you need only let us know. But yes, that's the usual course, even though it looks like it's a bit of a blip. All right. Any other applications to make or orders sought?
64 MS RICHTER: No, Your Honour.
65 MS ANDERSON: No, Your Honour.
66 HER HONOUR: Thank you very much to you both. Thank you, I will stand down until 10 o'clock tomorrow morning. Thank you very much.
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