Director of Public Prosecutions v Sleep
[2020] VCC 1759
•6 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00842
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUAL SLEEP |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October 2020 | |
DATE OF SENTENCE: | 6 November 2020 | |
CASE MAY BE CITED AS: | DPP v Sleep | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1759 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: stalking - conduct endangering life - damaging property - persistent contravention of a Family Violence Safety Notice – remorse – general deterrence - COVID‑19
Legislation Cited: Sentencing Act 1991 - Road Safety Act 1986
Sentence: community correction order for a period of three years with conditions – 6AAA: 18 months’ imprisonment with a non-parole period of nine months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. M. Zammit (For plea) Ms S. Naimo (For sentence) | Office of Public Prosecutions |
| For the Accused | Mr I.G. Crisp | --- |
HIS HONOUR:
1 Samual Sleep, on 20 October 2020, you pleaded guilty to an indictment containing four charges, being stalking (Charge 1), conduct endangering life (Charge 2), damaging property (Charge 3) and persistent contravention of a Family Violence Safety Notice (Charge 4).
2 The maximum penalty for each of the offences of stalking, reckless conduct endangering life and criminal damage is 10 years’ imprisonment while the maximum penalty for persistent contravention of a Family Violence Safety Notice is five years’ imprisonment.
3 In addition, you pleaded guilty to the related summary offence of exceeding the prescribed concentration of alcohol pursuant to s49(1)(f) of the Road Safety Act 1986. As you have a prior conviction for this offence, any licence or permit held by you under the Road Safety Act must be cancelled and you must be disqualified from obtaining any licence or permit under the Act for a minimum period of 18 months.
4 The Crown sought a finding pursuant to s89C of the Sentencing Act 1991 that in respect to Charge 2, conduct endangering life, that your offence was committed while you were under the influence of alcohol which contributed to the offence.
5 You admitted your criminal history, which reveals that between 2005 and 2009 you appeared before the Warrnambool Magistrates’ Court on three occasions for dishonesty offences and offences of violence. On each occasion you were dealt with by way of a without conviction disposition. In addition, between 2011 and 2013, you committed three driving offences, two of which were dealt with by way of traffic infringement notice, including the offence of exceeding the prescribed concentration of alcohol, as well as in 2011 exceeding the speed limit by 25 kilometres or more but less than 30 kilometres per hour.
6 Tendered as Exhibit A and read aloud in court, was the agreed Prosecution Opening for Plea. At the time of your offending, you were 34 years of age. The victim in this matter is Ms Katherine Dixon[1]. You and your victim commenced a relationship in October 2018. You purchased a property together in February 2019 in Pascoe Vale and commenced living there together. In early January 2020, you separated. At the time of separation, your victim remained in the Pascoe Vale address and you moved into an address in Sydenham. After separating, you continued to contact your victim by text message, email and phone calls, and over social media.
[1] A pseudonym
7 Although you had moved out of the address, you still had access to the property and, from time to time, would attend there when the victim was not present. Ultimately, on or about 6 February 2020, the victim communicated to you that she just wanted to be left alone and that she did not wish to speak to you. On that day, your victim arrived home from work at approximately 6.30pm and, at about 9.00pm, retired for the night. At about this time, she noticed a light in the spare bedroom and found you removing items from the wardrobe in the spare bedroom. Your victim could smell alcohol on your breath and was frightened as a result of your conduct.
8 That same evening, at about 10.56pm, you sent your victim a text with a photo of part of a tent with a torch on and the words “camping at home”. You camped in the yard of the dwelling occupied by your victim. At 7.00am the following morning, your victim contacted you and told you “contact me in any way again and I will place a restraining order on you do not come near me or contact me, goodbye”.
9 Between 6 and 20 February 2020, you did the following acts:
(a) you continued to contact the victim by telephone, text, email and other applications;
(b) you entered or loitered outside or near your victim’s home and her place of business. On several occasions you entered the property in Pascoe Vale when your victim was not present and left chocolates and love notes in the dwelling;
(c) you accessed the victim’s old laptop and searched through the computer to find old photographs. You sent photographs of the victim to her ex-boyfriend and her old boss; and
(d) you sent the victim a photograph via Snapchat of the soles of your feet on which you had your birth date and your victim’s birth date tattooed. You uploaded a screenshot to the Cloud of a Geolocation application, indicating to the victim that you were tracking her movements via an application. You telephoned your victim’s workmate, George. You sent a bunch of flowers to the victim’s place of work. You tried to get the victim to click on a link sent by text that would install a tracking application on her mobile phone (Charge 1, stalking).
10 On 20 February 2020, you sent a number of text messages to your victim, the first one at 3.25am. As a consequence of your conduct, the victim blocked you from contacting her, but you then sent messages to her via LinkedIn. Later that day, you sent your victim’s mother a text message and sent the victim a number of emails to her work email address. In the emails to your victim, you commented on the health of her dog, which indicated that you had been present in the dwelling in Pascoe Vale that day.
11 After finishing work for the day, the victim drove to the Fawkner Police Station to report your conduct. At that time, she told the police that she was not presently in fear of you. After leaving the Fawkner Police Station, the victim drove home. As your victim arrived home at about 5.50pm, you drove up the shared driveway of the units in which the jointly owned property was located and, as your victim got out of her car and walked towards the front door of the unit, you got out of your car and went inside the property, followed by the victim.
12 Upon entry, the victim saw 14 A4 pieces of paper stuck on the lounge room wall spelling out “I love you Katherine”. Your victim told you that you were a “creep”, that you had issues, that you were a “psycho”, and that you were to leave her alone. As you left the house, you said to your victim “you will never see me again”. A few moments later, you telephoned your victim saying, “I’m going to drive my car through your front door”. A few seconds later, you drove your Mercedes Veto van into the victim’s car, which was parked outside the unit. As a result of the collision, you pushed your victim’s car into the brick wall of the side of the unit. At the time of the collision, the victim was in the unit approximately 4 metres away from the front door (Charge 2, reckless conduct endangering life).
13 You left the scene of the collision but returned shortly thereafter. By this stage, the police had attended and you underwent a preliminary breath test and were taken to the Broadmeadows Police Station, where an evidentiary breath test was conducted which revealed an alcohol concentration of 0.098 per centum (related Summary Charge, exceed PCA within three hours of driving a motor vehicle).
14 As a result of your actions, your victim’s car was written off and the unit was structurally damaged and assessors determined that the dwelling was unsafe to live in until it was repaired (Charge 3, criminal damage).
15 You were interviewed under caution at approximately 8.21pm on 20 February 2020. You told the police that you had been kicked out of the house some five to six weeks ago. You also told the police that, after leaving the address, you had a telephone conversation with the victim and told her “don’t stand near the front door …”, because it was your intention to drive the car into the house “coz I was so hurt” (see Q&A 48-52 in the record of interview).
16 You told police that the purpose of this telephone call was to protect your victim and that you did not consider that your victim would be standing by the door at the time that you drove into her vehicle, and that you did not want to hurt anyone.
17 Ms Naimo, you are back on line?
18 MS NAIMO: I am back. I apologise, it seems to be the case every time I do an appearance that my internet seems to play up unfortunately.
19 HIS HONOUR: As your instructing solicitor, Mr Wilson, is connected through Webex to this hearing, should you drop out again I will simply continue with the sentencing remarks as the Crown will be represented by your instructor.
20 On 20 February 2020, a Family Violence Safety Notice was issued in favour of your victim and served on you at 10.30pm that night. The safety notice prohibited you from contacting the victim. Between that time and 22 February 2020, you sent a series of messages to friends of your victim with the specific intention that the contents of those messages would be forwarded onto your victim (Charge 4, persistent contravention of a Family Violence Intervention Order).
21 On 22 February 2020, you attended the Broadmeadows Police Station where you were once again interviewed under caution. A number of the matters that are relied upon in support of Charge 1 were covered by the interrogators but, in respect to Charge 4 at Q&A 513 of the record of interview, you acknowledged the effect upon your victim of messages you sent to your victim’s friends between 20 and 22 February 2020.
22 Tendered as Exhibit B and read aloud in court was the Victim Impact Statement of Ms Dixon. In her statement, she writes of her anxiety and fear of you returning to her home where she lived alone. Your victim moved in to live with her mother yet feared that you would harass her at her mother’s home. She suffered sleepless nights. Your conduct brought back an eating disorder from which she had suffered earlier in her life. Your conduct has placed financial pressure on your victim, who works seven days a week at two different jobs in order to maintain payments on the mortgage loan to the dwelling. She has lost income attending various court hearings in respect of your conduct. As a result of your conduct, she has installed a security system. Significantly, she has sought the assistance of a psychologist due to your conduct, and this costs her approximately $150 per week.
23 Mr Crisp of counsel, who appeared on your behalf, tendered a number of exhibits, being:
· Exhibit 1, summary of defence plea
· Exhibit 2, a psychological report dated 10 July 2020 from Mr Bernard Healey
· Exhibit 3, a psychiatric report from Dr Danny Sullivan dated 13 October 2020,
· Exhibit 4, an ARL insurance reference in your name
· Exhibit 5, a bundle of references.
24 Mr Sleep, you were born in Horsham and lived there with your family to the age of six, at which time your parents separated, as your father had developed another relationship. Thereafter you and your mother and sister moved to Nhill. This was followed by a move to Warrnambool when you were aged about 11 years, and you remained there until the age of 24 or 25 when you moved to Melbourne to further your career in painting and decorating. At about that time your mother and sister and your mother’s new husband had moved to Mackay in Queensland. You appear to have little or no contact with your natural father.
25 You attended primary school at Nhill, and secondary school at Warrnambool between Years 7 and 10. Halfway through Year 10 you commenced an apprenticeship as a painter and decorator. After completing your apprenticeship, you became involved in running a painting and decorating business for a period of approximately 5½ years for a firm in Warrnambool until you came to Melbourne. You secured employment in Melbourne with a firm Purple Hills, and after three months became a foreman for that company, which involved at that time quite specialised work including refurbishing a hotel in Sydney.
26 After a seven-month holiday in Europe you returned to Australia and commenced your own business Platinum Pro Painting with your best friend, who you had met whilst working for Purple Hills. Your business employs six painters and decorators.
27 Mr Healey conducted intelligence testing on you which revealed a full-scale IQ of 84, placing you at the 14th percentile, meaning that some 86 per cent of your age-equivalent peers would perform better than you. Mr Healey screened you for alcohol abuse, the results of which demonstrated no enduring problem with alcohol abuse. Your personality profile was not indicative of any major psychological or emotional disturbance, although it would appear that at the time of your assessment you were taking anti-anxiety and anti-depressant medication, paroxetine, 20 milligrams at night.
28 Through Mr Healey you were introduced to an anger-management program, and Mr Healey has supervised your progress through this program. In addition you have consulted your general practitioner and are currently on a mental-health plan.
29 At the time that you consulted Dr Danny Sullivan in October you were not taking any medication. You reported to Dr Sullivan that at around the age of 25 years you abruptly developed social anxiety. You consulted a psychologist on three occasions and were taught some straightforward strategies which you have used successfully since that time. You reported to Dr Sullivan that for the past three years you have taken anti-depressant medication, but that you had weaned yourself off that medication in the last six months.
30 You told Dr Sullivan that you met your victim at a pub in the city in 2018 and that you rapidly formed a relationship. You reported to Dr Sullivan that your relationship went sour in October 2019 when you downloaded the Tinder app and this was seen by your partner, your victim, and, although you deleted the app, your partner/victim from that point forward distrusted you.
31 During the time of your soured relationship and subsequently until the time of your arrest you increased your use of alcohol, and Dr Sullivan opined that you met a diagnosis of “harmful use of alcohol”.
32 Dr Sullivan described your behaviour as being consistent with that of a “rejected stalker”. Dr Sullivan wrote that “This is not a diagnosis, but a description of the behaviour.” Dr Sullivan opined that “A rejected stalker seeks to reconcile the relationship after its end, and may also desire to exact revenge”, although he comments that your conduct of driving into your victim’s car and house was an impulsive act influenced by intoxication and frustration rather than vengefulness. Further, Dr Sullivan opined that compared to other forms of stalking, this is less likely to recur or to be involved in serious harm to a victim.
33 Dr Sullivan opined:
(i) “There is no indication of risk factors for persistence of stalking. Mr Sleep communicates that he is happy that the relationship has ended and has no desire to rekindle it.
(ii) There is no indication of cognitive impairment.
(iii) There is no indication of problematic personality traits.
(iv) There is no indication of psychotic illness or other serious mental illness.”
34 By reference to the testimonials tendered on your behalf, it is apparent from the reference of Ms Dowton and your mother, Ms Joy Block, that there appeared to be some tension in your relationship with the victim from the outset in respect to the victim’s attitude towards your family and friends, and that you felt some strain as a result of this. It is apparent from the reference from your mother that for some many years you have sought to have a longstanding relationship, but that your relationships for one reason or another have failed, and that the rapid progress of your relationship with your victim is indicative of this desire in you to form a lasting romantic relationship.
35 Ms Dowton, in her reference wrote that immediately after your offending you reached out to her as a friend and confidant for emotional support and that you were extremely remorseful and regretful for your actions.
36 Your referee Jeanette Milne, a friend of some 25 years, wrote that you are a hardworking, compassionate and kind young man. Further, she writes that she is aware of the charges that you face and the events that brought them about. She is of the opinion that your conduct is out of character and that you are remorseful for how you have behaved.
37 Mr Paul Young writes that he has known you since you were 13 years of age, that you are friends, and you were his best man at his wedding. He wrote specifically:
“I have never in the time I have known him seen him get angry. Sam doesn’t have an angry bone in his body.”
38 He further wrote that your conduct is very out of character for you.
39 Ms Jessica Membrey wrote:
“I am aware of the charges brought against Sam and the events that took place leading to these charges. What occurred on that evening was extremely out of character for Sam and absolutely brought me by surprise. I have spoken to Sam at length about the events and charges and I know he is extremely remorseful for his actions and behaviour. These events have taken a heavy toll on Sam both emotionally and financially and will impact him well into the future.”
40 Finally, Mr John Robinson, construction manager of Purple Hills Painting, writes that he first met you in 2010. He described you as a conscientious and ambitious young man and a good painter. After a very short time working for Purple Hills Painting you were promoted to construction manager, and in that role you ran a number of jobs simultaneously, including the painting of 450 apartments at one time, when you supervised fifty tradesmen. You supervised as project manager the refurbishment of the Langham Hotel in Sydney and took on this task despite having planned to travel overseas with your future business partner. Mr Robinson wrote that you have always been respectful to his wife and daughter, that he was stunned when he heard of the charges that you face, and that your conduct is out of character for the man that he knows.
41 Mr Crisp, on your behalf, submitted that there is evidence of genuine remorse. I accept that you are remorseful for your actions. Further, Mr Crisp submitted that as a result of your conduct you have lost a relationship that was important to you. You have lost an interest in what was a property jointly owned by you and your victim. You are responsible for payments for the damages to your victim’s car and to the dwelling that was damaged as a result of your conduct.
42 Mr Crisp submitted that your conduct lacked many of the aggravating features that are present in offending of this kind. Further, he submitted that your prospects for rehabilitation are positive because of your personal history and your lack of similar offending, and you have insight and remorse in respect of your conduct. Further, Mr Crisp placed emphasis upon your strong work history, your close group of friends and family who will provide support for you into the future, that you have reduced your alcohol consumption, and finally that you have sought the support of Mr Healey and will continue to consult him, and have obtained a mental healthcare plan.
43 Ultimately, Mr Crisp submitted that in all the circumstances a community correction order met all the purposes of sentencing in respect of you.
44 Ms Zammit of counsel, who appeared on behalf of the Crown, emphasised the sentencing principles of general deterrence and denunciation in respect to you. Ms Zammit referred to judgments of single judges of the Supreme Court as well as judgments of the Court of Appeal in respect to family violence. Our community will not tolerate family violence and sentences must reflect that such conduct is totally unacceptable.
45 Ms Zammit in her oral submissions acknowledged the force of the many matters relied upon by Mr Crisp, and ultimately submitted that a “short period” of imprisonment together with a community correction order was the appropriate disposition in respect of your offending in all the circumstances.
46 Accordingly, I had you assessed for a community correction order.
47 By a report dated 26 October 2020 you have been assessed as suitable for a community correction order, and you have consented to such an order being made by the court. As part of the report I was informed that because of the COVID‑19 pandemic, community work programs have been suspended, and accordingly the authors respectfully submitted that I not impose community work in respect of you. Ultimately, the authors of the report recommended that you be subject to supervision, treatment and rehabilitation in respect of alcohol abuse, treatment and rehabilitation in respect of your mental health, and treatment and rehabilitation by way of programs to reduce your risk of reoffending.
48 As a result of being arrested on 22 February 2020 you spent three days on remand, and it is to be hoped that this short period of the loss of your liberty has been a wakeup call to you. In my opinion, sentencing you to a “short period” of imprisonment serves little purpose in the construction of an appropriate sentence in your case.
49 Your offending is unusual but serious. You are an appropriate vehicle for the application of general deterrence, and your conduct must be justly punished and publicly denounced. However, you entered your plea at an early stage in proceedings and are entitled to the benefits that flow to you from that plea; namely, that it is evidence of your remorse, which I accept is present, and that it has utilitarian benefit. Your prior court appearances are of little relevance to the exercise of my sentencing discretion, save in respect to the related summary offence.
50 In my opinion your prospects for rehabilitation are good. You have come to the realisation that your relationship with your victim is at an end, and you have no intention of attempting to rekindle it. You have a longstanding history of hard work, and presently operate, together with your partner, a successful painting and decorating business. Although if I were to imprison you for a “short period” your business would continue under the management of your partner, and little if any financial detriment would accrue to you I do not wish to jeopardise your ability to compensate your victim.
51 There is one matter I seek to raise, Mr Crisp, at this stage. Was there any order made in respect to your client's licence at the time that he was breathalysed by the police?
52 MR CRISP: The s51 notice?
53 HIS HONOUR: Yes, did they suspend him there and then or not?
54 MR CRISP: I would like to check that, Your Honour.
55 HIS HONOUR: Would you be so kind as to do that?
56 MR CRISP: Can I approach him?
57 HIS HONOUR: Yes, certainly.
58 MR CRISP: No, Your Honour, he kept his licence.
59 HIS HONOUR: Would you please stand, Mr Sleep?
60 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you in respect to the indictable offences, I sentence you to a community correction order for a period of three years with conditions, being:
(i) treatment and rehabilitation in respect to alcohol abuse,
(ii) treatment and rehabilitation in respect of mental health,
(iii) treatment and rehabilitation by way of programs designed to reduce your risk of reoffending, and
(iv) supervision by the Secretary of the Department or his nominee.
61 In respect to the related summary offence you are convicted and fined the sum of $1,000, and all licences and permits held by you under the Road Safety Act 1986 are cancelled, and you are disqualified from obtaining any such licence or permit for a period of 18 months from today.
62 I make a finding pursuant to s89C of the Sentencing Act 1991 that at the time of the commission of the offence of reckless conduct endangering life you were under the influence of alcohol.
63 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 18 months’ imprisonment with a non-parole period of nine months’ imprisonment.
64 Please be seated.
65 There was an application for a restitution order in favour of the victim in the sum of $1,000 and I have made that order.
66 Mr Sleep, what will happen now is that my associate will bring you documentation in respect to the community correction order. You are to sign it and, Mr Crisp, if you wish to assist your client in that respect, by all means approach the dock. Please come out of the dock, Mr Sleep, and sit behind your counsel. You can sit a bit closer if you like, I doubt very much that you will die of the bubonic plague this morning.
67 I would like you to stand please, Mr Sleep.
68 You have been placed on a community correction order for a period of three years from today's date. It will conclude on 5 November 2023. Apart from the mandatory statutory conditions, you must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager and you must be under the supervision of the community correction officer for the period of three years.
69
You must attend the Broadmeadows Community Correctional Service at
25-27 Dimboola Road Broadmeadows within two clear working days after the commencement of this order. Bearing in mind the Department's attitude to physical contact between their staff and those that they supervise there is a telephone number provided for you to contact that organisation. Use that please. If there is any difficulty about that as being the appropriate means of contacting the Broadmeadows Community Correctional Services, do not be concerned, bring the matter back to me and I will straighten the matter out so far as they are concerned because from very early this year until now there has been no physical contact between any community correction officer and their clients. But you must make that contact within two clear working days of today.
70 The other aspect about it is this. If you fail to comply with the conditions that I have placed upon this order, you breach the order and you will be brought back to me. If you commit any offence in the three years that this order lasts, you breach the order and you will be brought back to me. I don't advise it.
71 Finally, I have made an order in respect of your licence. If you get behind the wheel of a car from this day for the next 18 months you commit the offence of driving whilst disqualified which is punishable by a period of imprisonment. That too will breach my community correction order and if you come back to me on that basis there will be no guarantees you will be going out the front door and home. Do you understand?
72 OFFENDER: Yes.
73
HIS HONOUR: Could you provide a copy of the relevant documentation to
Mr Sleep please and are there necessary notices under the Road Safety Act that need to be prepared? Thank you. So if by chance, Mr Sleep, you brought your car in today - good.
74 What is happening now is we are providing Mr Crisp and yourself with the record of your community correction order and the order that I have made in respect of your licence for your own records.
75 Is there anything that arises out of this sentence?
76 MR CRISP: No, Your Honour.
77 HIS HONOUR: Ms Wilson, is there anything that arises out of this sentence?
78 MS WILSON: No Your Honour, thank you.
79 HIS HONOUR: Thank you very much. Adjourn the court please
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