Director of Public Prosecutions v Soden
[2021] VCC 497
•30 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-20-01237
Indictment No. L11071829
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LANCE PHILLIP SODEN |
---
JUDGE: | HER HONOUR JUDGE DALZIEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 November 2020; 22 January 2021; 4 March 2021; 30 April 2021 |
DATE OF SENTENCE: | 30 April 2021 |
CASE MAY BE CITED AS: | DPP v Soden |
MEDIUM NEUTRAL CITATION: | [2021] VCC 497 |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Aggravated Burglary - Person Present – Kidnapping (Common Law) – Recklessly Cause Injury – Persistent Contravention of Family Violence Intervention Order – Unlawful assault – Driving a motor vehicle whilst disqualified – Summary charge commit indictable offence whilst on bail – Pleas of guilty
Cases Cited:Stapleton v The Queen [2020] VSCA 147.
Sentence:Total effective sentence of 5 years and 2 months’ imprisonment with a non-parole period of 2 years and 9 months.
Section 6AAA declaration: 7 years imprisonment with a non-parole period of 5 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Rutherford | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr D. Sala | James Dowsley & Associates |
HER HONOUR:
1Lance Soden, you are to be sentenced today for a series of offences committed against your former partner in breach of a family violence intervention order.
2The prosecution provided a detailed summary of your offending. I will not repeat every detail now, but will rather provide a summary of that Opening.
3You had an on and off relationship with the victim since 2016. In 2018 that relationship finished and in August of that year a final family violence intervention order was made to which you were the respondent, and the victim and her teenage daughter were the protected persons. That Order was served and explained to you on 17 August 2018. Between December 2018 and February 2020 you did not have any contact with the victim.
4On 26 February 2020 you made contact with her. You told the victim that:
a.She owed you a lot of money because of something she did;
b.You really wanted to see her and that you had been past her address and seen a different car parked in the driveway;
c.You had people keeping an eye on who was at her address while you were away;
d.You were sorry; and
e.You asked her not to call the Police about you having contacted her, as this was in breach of the order.
5The victim agreed to meet you, and did so. Charge 4 covers your persistent breach of the family violence intervention order from 26 February 2020 to 22 March 2020. During that time you breached the family violence intervention order on 20 different days, by contacting the victim, attending her house, and spending time in her company. You were clearly aware that this was in breach of the family violence intervention order, having referenced that Order in your first communication with her on 26 February, and you hid from her parents when they visited her on 24 March 2020.
6Charge 5 concerns similar behaviour, and encompasses 19 breaches of the family violence intervention order commencing 26 March 2020 and ending on 21 April 2020.
7On 11 April 2020 the victim became aware that you were seeing other women. She told you to take your things and leave her house, and that she would call the police if she had to. You left, but then sent messages threatening to harm yourself. The victim, out of concern for you, met with you near Balnarring. This behaviour on 11 April as part of the persistent breach of family violence intervention order.
8When the victim met you in Balnarring she was worried for your welfare. She tried to help you, but you attacked her by grabbing her on the mouth and around the neck. You threw her on the ground and began striking her with your arms. You pushed your weight onto the victim while she was laying on the ground. She was extremely frightened. She estimated that the assault lasted approximately 10-15 minutes (Summary Charge 45).
9The victim managed to get away from you and drove away. You chased her, in your car, causing damage to her car.
10The assault upon the victim caused bruising to her face, legs and shoulder and a loose tooth.
11You persisted in breaching the family violence intervention order. You contacted the victim, went to her house, and spent time there.
12On 22 April 2020 you unlawfully assaulted the victim by hitting her in the region of her mount, causing a swollen lip (Summary Charge 54).
13Charge 6 covers your further persistent breach of the family violence intervention order, and involves five days upon which you breached that order by visiting and spending time at the victim’s home, between 25 and 29 April 2020. On 28 April 2020 while the victim was dozing on her bed next to you, you burnt her arm with a lighter or a pipe. This is not a charged act but it indicates the declining nature of your conduct towards her.
14In the evening of 30 April 2020 the victim sent you a message asking you to stay away and not to come over any more. An hour or so later you drove over to her house. The CCTV shows your car parked in the driveway for around a minute before you got out, and went to the front door.
15The victim opened the door, and you pushed into her home, holding her throat. By your plea to Charge 1 you have admitted that you entered her home as a trespasser, with the intention of assaulting her.
16The victim landed on the couch in the living room. You hit her repeatedly to the face and body, with the blows described by her as hard and quick. She screamed in fear. You covered her mouth with your hands, and strangled her, squeezing her neck with your hands. She felt like she was losing consciousness. This conduct is the subject of Charge 3.
17While you were holding the victim down you demanded the password for her phone and then yelled at her asking about the people who were on her phone. You said to her, “You’re coming with me, get in the fucking car before the cops come”.
18You forced her into your car, against her will. She was scared that you would kill her. This is the commencement of Charge 2, Kidnapping. You drove towards Mount Martha. You told her that you would not hurt her, and then you hit her across the face. That blow is the subject of Summary Charge 9, and your driving at the time, whilst disqualified from holding a licence, is the subject of Summary Charge 11.
19You parked your car in the Mount Martha South Beach car park, which is isolated and has no public lighting. The nearest residential property is 150 metres away.
20You continued to look through the complainant’s phone, refusing to give it back to her. She asked to leave but you said she could not and you hit her to the head. That blow is not the subject of a charge.
21The victim used a pretext to get out of the car but was too afraid to run away. She got back in. You yelled at her and grabbed her by the throat. You elbowed her to the face, and burnt her with a cigarette lighter. These acts are the subject of Summary Charge 9.
22The victim begged you to let her go, she pleaded with you, and you abused her showing a callous disregard for her fear and the injuries you inflicted upon her.
23The victim again used a pretext to leave the car. This time she ran away, falling in the process. You ran after her, calling out. She hid from you behind a bush, and stayed there hiding until you left.
24Once you had gone the victim was able to seek help from people who lived nearby. Those witnesses describe her as being visibly distressed. They helped her and took photos of her, for her to provide to the police.
25She reported these matters to the police the next day. When examined by a doctor several days later she was seen to have a bruised right eye, and a small burn to her right forearm.
26At the time of these offences you were on bail, having been granted bail on 17 February 2020. The breach of this bail by the commission of the aggravated burglary is the subject of Summary Charge 12.
27You were interviewed by the police after your arrest on 4 May 2020. At some length in that interview you denied hitting the victim, and the conduct charged in respect to 30 April 2020. You described your conduct as succumbing to her overtures, saying you were trying to help her. You expanded upon your descriptions of her as a liar, and said that her allegations were in effect revenge for not getting her own way. You blackened her name and her character in a number of areas. You did make admissions to breaching the family violence intervention order.
Gravity of Offending
28The offences of aggravated burglary, kidnapping, recklessly causing injury and assault were all committed by you against a woman with whom you had been in a relationship.
29Summary Charges 9 and 45 are particularly serious instances of the offence of summary assault. Each involved multiple blows and grabbing the victim by the neck.
30Aggravated Burglary and Kidnapping are inherently serious offences, and each carries a maximum penalty of 25 years’ imprisonment. It is particularly relevant in assessing the gravity of Charge 1 that you forced your way into the home of a former intimate partner, with the intention of assaulting her. Deterring others from such behaviour is a significant factor to be taken into account in sentencing for that offence,[1] and for all offences involving domestic violence.
[1]Stapleton v The Queen [2020] VSCA 147, [60].
31Your behaviour terrified the victim. She has written in her victim impact statement of the significant long term effects of your behaviour towards her, including suffering from post-traumatic stress disorder and severe anxiety and depression. Your behaviour has affected her quality of life, her financial circumstances, and her ability to provide for her daughter.
32Furthermore, your persistent breaches of the family violence intervention order demonstrate your disregard for Orders of a Court. Charges 4 and 5 involve breaches of the Order on 20 and 19 days, respectively.
Personal Circumstances
33You were born in Frankston and grew up in that area. You have a twin sister. Your mother and father had separated when you were very young with both of your parents then re-partnering. You report that your step-mother caused issues with your contact with your father, that she was an alcoholic and that you had a poor relationship with her. You told Ms Ferrari that your step-father was physically and verbally abusive to you and your sister, and occasionally to your mother. You said that you did not get on with your mother, as she sided with your step-father.
34You reported that your father took his own life when you were around 20 years old, and that you found him after this had happened. You said that his suicide was connected to alcohol abuse issues. You reported that your step-mother prevented you attending his funeral.
35You reported to Ms Ferrari that you were able to finish your VCE, with encouragement and supervision from your mother. You said that you had behavioural issues at school, being distractable and getting into trouble. You were diagnosed with ADHD at a young age, and medicated for that until you were 16. After school you completed a concreting apprenticeship and worked in that industry ever since, with a very good employment history.
36You also told Ms Ferrari that you believed that, at the time of the offending, the intervention order had ceased.[2] Your version of events was that you were there by invitation, and an argument commenced, leading to you accidentally elbowing the complainant in the eye.[3] As Ms Ferrari has noted, your account in the police interview, and to her, minimizes your offending, and say in both that the complainant pestered and pursued you.
[2] Psychological Report of Carla Ferrari dated 29 September 2020, [57] (‘Ferrari’).
[3] Ferrari [59].
Criminal Record
37You do have a criminal record. Of particular relevance on that record are contraventions of bail and a community corrections order, and contraventions of family violence orders in 2013, 2018 and 2020.[4] The 2018 and 2020 offending involved breaches of the family violence intervention order which was in place to protect the complainant in this case from your behaviour. In 2020 you also were sentenced to a charge of aggravated assault on a female.
[4] 2020 matters not on criminal record, referred to by Ferrari at [54]-[55].
Mental State
38I received a number of reports regarding your mental state and intellectual functioning, as well as hearing oral evidence from Ms Lofthouse, who conducted a neuropsychological assessment of you. These reports, individually and together, indicate that your self-reports as to your past and present symptoms vary, and consequently it is difficult to come to a clear and defined description of the issues associated with your mental health and intellectual functioning.
39You have had many interactions with mental health treaters, in the community and whilst in custody. You have reported a range of symptoms and been prescribed different medications. Some of the treaters have been concerned that you were drug seeking, and attempting to present histories and symptoms to receive the medication that you wanted.
40The most reliable conclusion about your mental state seems to me to be that set out in the report by Dr Clarkson in her report dated 26 April 2021. She said:[5]
[M]y diagnostic opinion is that he has polysubstance use disorder (including stimulants, opioids, sedatives and hallucinogens, using prescription medications when he is not able to obtain street drugs), with an underlying personality disorder (borderline and antisocial structure).
[5]Psychiatric Court Report of Dr Rose Clarkson dated 26 April 2021, [17].
41It is apparent that your mood and presentation fluctuate significantly, which explains to some extent the very different impressions Ms Ferrari and Ms Lofthouse had of you, when they assessed you.
42Ms Ferrari said that when she interviewed you, you “displayed average intelligence and despite his self-report that he has been experiencing memory difficulties, his chronological recall was adequate.”[6] While Ms Lofthouse initially assessed you as having a full scale IQ of 55, she ultimately concluded, based on her review of your record of interview tape, and the Forensicare reports, that the more accurate assessment was that your intellectual functioning is in the borderline range.
[6] Ferrari [67].
43You provided a history to Ms Lofthouse that was, in part, different to that given to Ms Ferrari. To both of them, you gave a history again of a motorcycle accident in 2001, in which you injured your head. No supporting documentation was provided. You also reported being hit a number of times in the head whilst boxing and fighting. Ms Lofthouse said that in the absence of medical evidence about the head injury you reported she could not make a formal diagnosis of an acquired brain injury, but she thought your functioning was consistent with such an injury.
44Even accepting that your mental processes are affected by lower level intellectual functioning, and an underlying personality disorder, I do not consider that your culpability for these offences is reduced. The aggravated burglary was not a spontaneous reactive event. By your plea you have admitted entering as a trespasser with intent to assault the victim. The answers you gave in the interview, and the explanation you recently gave Dr Clarkson indicate that you minimise your offending, and continue to blame the victim to some degree.
45Furthermore, I do not consider that the principles of general deterrence and denunciation should be given less weight in the sentencing discretion. As I have said earlier, both those principles are important in sentencing for domestic violence offences. Whilst it is clear that you do have issues, I do not consider that your mental state is sufficiently severe, and your intellectual functioning sufficiently low to warrant amelioration of these factors.
46I have concerns about your prospects of rehabilitation. Your criminal history is of concern, as is your attitude towards these offences, and the victim. Your mental state and drug issues also inhibit your prospects for remaining offence free in future. Whilst you have expressed remorse, I consider that Dr Clarkson’s description as these having a “somewhat rote and superficial quality” is apt. There is a need to deter you from committing further offences. Your counsel submitted that in all the circumstances a longer period on parole would be of assistance to you and the community. I have taken that submission into account in setting the non-parole period.
47I have also taken into account the following factors in mitigation:
a.You did enter a plea of guilty at an early opportunity. This has given rise to a utilitarian benefit to the court and the community which is particularly so in light of the effect of the COVID-19 pandemic upon the operations of the court. This factor carries real weight in mitigation.
b.I have also taken into account that over the last year or so, whilst the COVID-19 pandemic was affecting how the prisons operated, that this would have made your time in custody more difficult. It is good to see the certificates showing that you have been involved in drug and alcohol counselling through Caraniche and other programs.
c.I have also taken into account the principle of totality. I am taking into account that you have pleaded guilty and are to be sentenced on multiple offences but these were committed, for the most part, on the same occasion or within the same time period. There is a need for some cumulation between these charges, but in order to avoid imposing a sentence which exceeds the length necessary to cover the totality of your offending, I have reduced the cumulation I would otherwise have ordered or in some cases ordered no cumulation.
48Weighing as best I can the gravity of the offending, the effect of it upon the victim, principles of general and specific deterrence, as well as denunciation and just punishment, and taking into account your prospects of rehabilitation, I have arrived at the following sentences.
49On Charge 1, aggravated burglary, the sentence is four years' imprisonment.
50Charge 2, Kidnapping, the sentence is two years and six months' imprisonment.
51Charge 3, recklessly causing injury, 18 months' imprisonment.
52On Charges 4 and 5, on each of those Persistent Contraventions of Family Violence Intervention Order, the sentence is 18 months imprisonment. So it is not an aggregate, it is individually.
53Charge 6, Persistent Contravention of Family Violence Intervention Order, the sentence is six months' imprisonment.
54On Summary Charge 9, unlawful assault, the sentence is two months.
55Summary Charge 11, driving whilst disqualified, six months.
56Summary Charge 12, commit indictable offence on bail, two months.
57Summary Charge 45, the sentence is two months.
58Summary Charge 54, the sentence is two months.
59The sentence on Charge 1 is the base.
60The orders for cumulation are: Charge 2, six months; Charge 3, three months; Charge 4, one month; Charge 5, one month; Charge 6, one month; nothing on Summary Charges 9 or 11; on Summary Charge 12, one month; Summary Charge 45, one month; and on 54, none. And it is my direction that those orders for cumulation be ordered to be served cumulatively upon each other and upon the sentence on Charge 1.
61By my calculations, that leads toa total effective sentence of five years and two months and I set a non-parole period of two years and nine months.
62Are we agreed that the declaration of PSD is that which you told me earlier; 361?
63MR SALA: 361 is agreed, Your Honour.
64HER HONOUR: I declare that you have already served 361 days in custody as pre-sentence detention and I direct that that declaration be entered into the record of the court.
65Now, have you checked the figures there before I give the 6AAA?
66MR SALA: Yes. Would Your Honour indulge a quick run-through? Starting from the top, Charge 1, four years, two years six months, 18 months, 18 months, 18 months, six months. Do I have that right, Your Honour, that the final contravention Charge 6 is six months?
67HER HONOUR: Yes.
68MR SALA: Thank you, Your Honour. Then I have got two, six, two, two, two and my maths - - -
69HER HONOUR: Two, two three.
70MR SALA: So three months on the drive disqualified?
71HER HONOUR: Yes.
72MR SALA: Yes. Sorry, I knew I had one number wrong.
73HER HONOUR: Two, three, two, two, two.
74MR SALA: Yes. And then the cumulation, the maths works out for me too, Your Honour.
75HER HONOUR: So six months, three months, one month, one month, one month, nothing, nothing, one, one, nothing.
76MR SALA: Yes. And thank you for Your Honour in doing it in that mathematical way because I have written it out that way and I think it is easier. I do not mean to diminish Your Honour's sentence and please do not think me rude but I get the same result Your Honour does so that is good.
77HER HONOUR: Alright. Ms Rutherford?
78MS RUTHERFORD: Yes, I am the same. Thank you.
79MR SALA: Thank you, Your Honour.
80HER HONOUR: All right.
81Pursuant to s.6AAA of the Sentencing Act, I state that had you not pleaded guilty, I would have sentenced you to seven years' imprisonment with a non-parole period of five years.
82MR SALA: If it please the court.
83HER HONOUR: Now, were there any ancillary orders?
84MS RUTHERFORD: There were not, Your Honour.
85HER HONOUR: And is there anything else - - -
86MR SALA: No.
87HER HONOUR: - - - that I have not covered?
88MR SALA: No, Your Honour.
89HER HONOUR: Thank you.
90So, Mr Soden, as Mr Sala will explain to you, your sentence is five years and two months with a non-parole period of two years and nine months.
91OFFENDER: Thank you, Your Honour.
92HER HONOUR: Thank you. We will adjourn.
- - -
0