Director of Public Prosecutions v Spencer

[2023] VCC 1933

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00108

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE SPENCER

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2023
DATE OF SENTENCE:	25 October 2023
CASE MAY BE CITED AS:	DPP v Spencer
MEDIUM NEUTRAL CITATION:	[2023] VCC 1933

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty – Common law assaults – Contravention family violence intervention order intending to cause hard or fear for safety – Summary offence – Commit indictable offence whilst on bail – Contravention family violence intervention order – Aboriginal background – Relevant and significant criminal history – History of poly-substance abuse – Extremely deprived background characterised by violence, alcohol abuse and instability – Diagnosed with mild intellectual disability at age 13 years – Intellectual disability exacerbated by drug use – Complex post-traumatic stress disorder – Periods of homelessness - Already spent significant period in custody

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169

Sentence:Convicted and sentenced to Total Effective Sentence (aggregate term) of 30 days’ imprisonment – Time already served in custody was 458 days’ imprisonment – s.6AAA Sentencing Act 1911 declaration

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms J. Ball	Adrian Paull Criminal Law

HER HONOUR: 

1Kyle Spencer, you have pleaded guilty to two charges on an indictment, namely common assault and contravention of a family violence order, intending to cause harm or fear for safety.

2Each of these offences has a maximum penalty of five years' imprisonment.

3Further, you have pleaded guilty to two summary charges:  namely, committing an indictable offence whilst on bail and contravention of a family violence intervention order.  Committing an indictable offence whilst on bail has a maximum penalty of three months' imprisonment and contravening a family violence intervention order has a maximum penalty of two years' imprisonment.

4I must have regard to the maximum penalties in sentencing you, as these reflect the seriousness with which Parliament regards each of the offences.

5I was told that you were 20 to 21 years old at the time of the offending and I understand you are now 23.

6The victim in this matter is Melanie Rafferty[1], who had previously been in a relationship with you.  You have two children together.  Ms Rafferty was 20 years old at the time of the offending.

[1] A pseudonym.

7At the time of the offending there was a final family violence intervention order where Ms Rafferty and the children were the affected family members and you were the respondent.  The order amongst other things prohibited you from:

(a)committing family violence against a protected person;

(b)contacting or communicating with a protected person;

(c)approaching or remaining within 25 metres of a protected person; and

(d)going to or remaining within 100 metres of where a protected person lives.

8In the evening of 21 March 2021 Ms Rafferty was at home with her mother and the children.

9You attended the premises and went inside.

10At some stage in the evening you started yelling and screaming at Ms Rafferty and she asked you to leave.

11You grabbed Ms Rafferty with both hands, pushing her back up against a wall.  Ms Rafferty got out of your grip, and then you punched her in the back of her head on multiple occasions.  This gives rise to Charge 1, common law assault.

12You then left the house, screaming, and ran away.

13At 7.13 pm Ms Rafferty called Triple 0 and police attended.  She told them what had happened and police took photographs of her and the house.

14This entire incident gives rise also to Charge 2, contravene intervention order, intending to cause harm or fear.

15At the time of this incident you were on bail, giving rise to Summary Charge 7, committing an indictable offence whilst on bail.  A condition of your bail was to abide by the family violence intervention order.

16At about 11.30 am on 26 March 2021, so about five days later, Ms Rafferty and the children, as well as her parents and a friend, got off the bus at Corio Village shopping centre.  You were coming out of the shopping centre when you spotted Ms Rafferty and you approached her.  You yelled abuse and offered Ms Rafferty’s friend some money.  This gives rise to Summary Charge 8, contravene final family violence intervention order.

17Police attended and you were arrested.

18You were interviewed by police at the Geelong police station.  You said that you were aware that there was an intervention order in place with Ms Rafferty and your two children but believed that this meant you were prohibited from coming within 500 metres of her.

19In relation to the incident at the shopping centre, you said that you gave Ms Rafferty’s friend $50 for your children.  In relation to the incident at Ms Rafferty’s house, you denied ever being there on that occasion, saying that you were riding your bike around to see various people that you knew, then you stayed at a particular person's place.  Further, you said that Ms Rafferty was lying and that you were nowhere near her house.  So in this respect you lied to the police.

20Mr Spencer, your offending is serious and deserves a punishment which is just in all of the relevant circumstances.  Your conduct must be appropriately denounced.

21The common assault is a serious example of that offence, in my view, involving multiple punches to the back of the victim's head.  She and you are most fortunate that you did not cause a more serious injury to her.  Further, the assault happened at her home where she was entitled to feel safe and, to make things worse, you were prohibited from attending due to the family violence intervention order which had been taken out to protect her from you.

22Further, you were subject to a grant of bail at the time, as well as a community correction order.  It seems to me that you were a law unto yourself at that time and behaved precisely as you wished to, despite being subject to a relevant court orders.

23You were abusing alcohol and drugs at the time of the offending.  Whilst your consumption of drugs and alcohol does not aggravate your offending, it does not mitigate it either.  Your consumption of drugs and alcohol heightens the dangerous nature of your behaviour.

24You have a significant criminal history, commencing in the Mildura Children's Court in 2014.  You have prior convictions for dishonesty offences, property damage offences, driving offences, aggravated burglary (person present), contravention of a conduct condition of bail, breaching a probation order, committing indictable offence whilst on bail, assaulting a police officer, resisting and obstructing protected services officer, unlawful assault, possess imitation firearm without exemption, possess controlled weapon without excuse, breach of youth supervision order, contravention of family violence interim intervention order, make threat to kill, recklessly cause injury, behave in riotous manner in public place, fail to answer bail, contravene community corrections order.

25In a number of instances, there are multiple charges in respect of some of these offences.

26Moreover, I am told that all past contraventions of a family violence intervention order related to Ms Rafferty and that you had been released from custody onto a community correction order only about three and a half months before the offending for which I now sentence you.

27There is no victim impact statement from Ms Rafferty, but it takes little imagination to know that she must have found your treatment of her on that occasion when you assaulted her to be traumatic and to have caused her pain.

28You have been on remand overall for well in excess of a year in relation to the matters now before me, albeit that you were on bail at some stages but you were remanded in custody once more after you failed to appear at the committal hearing in relation to the matter and then you were remanded in custody due to your failing to appear before me on occasion.

29I take into account your background, which is a most unfortunate one.

30You were raised by your mother and you have four half-siblings:  two brothers and two sisters.  You had no real contact with your father and you have said that the absence of a father figure had a profound impact on you, as it would.

31Your childhood was characterised by violence, substance abuse and instability.  Your mother struggled with alcoholism and would drink regularly to the point of blacking out.  You have had to care for her in that state from a young age.

32You also witnessed and were subject to violence perpetrated by your mother's various partners or men she brought home.  I was told that on one occasion when you were only seven you had to protect your unconscious mother from a man attempting to sexually assault her, hitting him with a chair. 

33You moved frequently around northern Victoria and New South Wales to live either at women's refuges or with your mother's new partners, where the cycle of violence would continue.

34As a result of your transient childhood you attended a number of different schools and you could never stay for a complete year at any level.  You struggled academically and have had ongoing difficulty with reading and writing.

35When you were 13 you were diagnosed with an intellectual disability and briefly attended Mildura Specialist School.  Later you were referred to FLO Connect for Year 10 in a bid to re-engage with schooling; however, you did not finish the year.

36When you were 12 or 13 you started to leave home for lengthy periods to escape your dysfunctional and violent household.  Unfortunately you started to associate with a peer group who introduced you to drugs and criminal activities.

37You have continually experienced periods of homelessness due to a lack of family support, difficulties within your relationship, as well as your attempts to distance yourself from family members, at times including your mother.  You had said that she and others have been negative influences upon you.  

38Having said this, you are a caring young man who has reached out to family members on occasion and that is to your credit.  Although sometimes it was at your own expense, because you should have been abiding by court orders.  But nevertheless you are concerned about your mother's present health and have been assisting in caring for her, as I understand it.

39Your only intimate relationship has been with Ms Rafferty.  You met her in 2015 and you have been in an-on-and-off relationship ever since, or you had been.

40You have two children from the relationship, who were aged four and two at the time of the original plea hearing of this matter last year, so they are now five and three.  They had lived with their mother with ongoing involvement through DFFH.  I understand at one stage they were actually removed; however, I was told that they are now in a situation where again their mother has care of them with DFFH involvement.  So it is a fairly fluid situation in that regard and there are protection concerns.

41I was told that there is a full family violence intervention order protecting Ms Rafferty and your children and that was to be in force until 28 January this year.  There are no family law orders in place.  Child protection proceedings are ongoing and I understand you are still motivated to work with DFFH in order to maintain a relationship with your children.  As you know, kids need their dad, but they need their dad to be out of gaol and behaving himself and not on drugs, so do your best.

42You have had little formal employment, with your sole source of income being the disability support pension.

43You were introduced to cannabis and methamphetamine, or ice, when you were only 13 by negative peers.  You smoked both of these daily until you were 17.  You then began to inject ice intravenously.  You have also gone through periods of problematic alcohol use. 

44You have tried other drugs on occasion, but ice is your preferred drug, which you use to 'escape' as you put it.  Your counsel told me that you readily acknowledged that the temporary relief the drug provided was by far outweighed by the problems that your drug use had caused, such as the breakdown of your relationship with Ms Rafferty and involvement with the criminal justice system. This means that you have some insight and good insight into the connection between your drug-taking and committing offences.  That is a positive thing; however, please understand and remember that if you do abuse drugs in the future, including alcohol, and then you commit offences your decision to take these might be treated as an aggravating factor in respect of future offending by a judge in the future.

45In view of your extremely deprived background during your childhood and adolescence, I have no difficulty in accepting that this had an adverse effect on your general personality and psychological development to the point where the principles of Bugmy[2] are engaged.  It appears that your upbringing served to heavily influence your behaviour, which is evident in the offending for which I now sentence you, although I must also factor in that you were affected by ice and alcohol at the relevant times.  Having said this, I accept that you have been self-medicating with these substances for a long time and it appears that you were also subjected to most negative 'role modelling', if I can call it that, from an early age.  Therefore, I make a reduction in your moral culpability to a fairly substantial extent and reduce the weight to this extent that would otherwise attach to the weight to be applied to just punishment, denunciation and specific and general deterrence.  If not for Bugmy principles, I would have attached fairly strong weight to each of these principles except for general deterrence, which I otherwise would have given strong weight to deter others from behaving as you have.

[2]Bugmy v The Queen [2013] 249 CLR 571

46It was also submitted that Verdins[3] principles apply in your case.  In this regard, I have considered the report of Ian Mackinnon dated 24 August 2022, although it does have some shortcomings as pointed to by the learned prosecutor at the original plea hearing.  However, I accept that you have been diagnosed with a mild intellectual disability which has been exacerbated by substance use and you suffer from a complex post-traumatic stress disorder where substance abuse is a symptom, primarily as a means to self-medicate chronic distress.

[3]R v Verdins [2007] 16 VR 269

47The prosecution accept that Verdins principles do have applicability; however, they need to be moderated to an extent to reflect that you were abusing drugs and alcohol in the lead-up to the offending.  I agree with Ms Sergeant, the original prosecutor, that Mr Mackinnon did not appear to have any explanation to give context to your violent offending on 21 March 2021.  It is not clear in his report as to the precise basis that he concluded that your mental impairments contributed to your decision to assault Ms Rafferty.  He said:

'Mr Spencer is likely to have quickly suffered "information overload", become overwhelmed with frustration and anger and resorted to aggressive behaviour in a desperate attempt to control the given circumstances',

without really explaining what the given circumstances were to his understanding.

48Your counsel had told me that you had instructed her that when you were at your former partner's home you observed men coming and going and open drug use, which had distressed you, as you had grave concerns for your children.  This is not something which is recorded in Mr Mackinnon's report.  Ms Sergeant at the original plea said that her enquiries did not substantiate this situation.  Your counsel told me that although you used drugs intravenously, you would never use these in front of the children, in contrast to what you said you observed on the occasion that you attended the house and you assaulted Ms Spencer.  On the other hand, in contrast to what I was told by Ms Sergeant, it appears that there is substantiation for your concerns seeing that the children were taken from your ex-partner's care due to welfare concerns associated with people coming and going from the house and engaging in drug use.

49In the end, I make some allowance for your impairment of mental function, as you suffer a mild intellectual disability and complex post-traumatic stress disorder for which you were self-medicating with ice and alcohol abuse.  Whilst it appears that the ice and alcohol had a good deal to do with your offending, I do accept, as I said, that these were forms of self-medication and that your underlying impairment of mental function as diagnosed probably also contributed to your ability to make calm and rational decisions on each of the occasions of your offending.

50In these circumstances I make a further allowance to a fairly minimal degree so as to reduce further your moral culpability and the weight which would otherwise attach to specific and general deterrence, as well as punishment and denunciation.  However, I must place considerable weight upon protection of the community in view of the impact that your extremely deprived upbringing has had upon you, your substance abuse issues and impairments of mental function, which are of a rather complex nature.

51I was told that after your release on CISP-supported bail in October 2021 you were referred to Mallee District Aboriginal Services (MDAS) for alcohol and other drugs and mental health counselling.  Unfortunately, after only one appointment, your dual diagnoses counsellor went on leave, as did the provisional psychologist you were to be reallocated to, and you disengaged from the program.  When I questioned your counsel about this at an earlier hearing, I was told that you did not disengage from the program because of this; however, it is a shame that there was going to be a lack of continuity in your treatment after such a short time.  I was told that not long after you disengaged from the program you were remanded in the context of not appearing at the contested committal hearing for these matters.

52It was conceded on your behalf that you relapsed in respect of substance abuse not long after your release from your last custodial sentence and that in the lead-up to the offending before me you were abusing both ice and alcohol.

53In the past you have expressed a strong wish to abstain from drugs and alcohol.  I was told at an earlier hearing that you have been actively seeking culturally-appropriate community supports to address your addiction issues; however, your application to Wiimpatja Healing Centre, which is a residential rehabilitation program through MDAS, was rejected shortly before the plea hearing last year.  However, I understand that you are wanting to pursue a culturally appropriate residential program and you are very much still wanting to abstain and deal finally with your substance-abuse issues.

54I was told that your fragile mental health due to multiple traumatic incidents throughout your formative years had sadly resulted in a number of suicide attempts.  On 17 August last year, I was told, that you again attempted suicide by overdosing on prescribed medication.  You told your counsel that this was a result of having little contact with your family while on remand and feeling abandoned by them.  However, you gave a different explanation to the Forensicare mental health nurse who you spoke to as part of the community corrections assessment at that time, saying that this was not a suicide attempt but a bid to avoid consequences after an incident with another prisoner.  On any view of it, behaving in that way and trying to harm yourself is really not a good idea and I hope that you do not do that again.

55While on remand you were prescribed Avanza, which is an antidepressant medication which you are now taking again.  Unfortunately whilst you were in the community, even though you did well overall with the CISP program, you had relapsed into substance abuse.

56I allow for the fact that any time in custody has been harder for you due to the fragility of your mental health and that there may well be a deterioration of your mental health if you were to continue to be incarcerated.  Having said this, I note that even though as far as I am concerned I will sentence you to a period of imprisonment which will reflect time served, you are currently on remand for other matters.  But in sentencing you I have taken into account and factored in that you experienced kind of custody.

57Further, you are a young man and this has been the lengthiest time you have been in adult gaol, which I also factor in as a source of hardship.  Also the restrictions in place due to COVID-19 would have made time harder than would otherwise would have been the case, although I understand that currently the restrictions have significantly subsided.

58I understand that concerns have been raised in the past in relation to a possible acquired brain injury which followed an assault in 2016.  When you were placed on CISP bail I was told that you were to be assessed by a neuropsychologist with a view to further addressing this aspect.  However, unfortunately this was not able to occur for various reasons that were explained today, but it is still the intention for you to undergo neuropsychological assessment and indeed perhaps also to be assessed for the need for occupational therapy with a view to you gaining more funding through NDIS, which hopefully will help support you when you are released in the community and we can work out, or the people can work out who are doing these things, what supports you need and how best it is for you to go forward.  That will be good for you and good for the community.

59You are entitled to a fairly substantial discount in the sentence that you would otherwise receive for your pleas of guilty in this matter, notwithstanding that you conducted a contested committal hearing in which the complainant was cross examined.  I make such an allowance in circumstances where you were then facing a charge of aggravated burglary and prior to or at the committal hearing you had offered to plead guilty to charges now before me.  I was told that the factual basis for which you are now to be sentenced is a narrower one than the one that you were facing at the committal stage.  In pleading guilty you have saved the witnesses the time and trouble of giving evidence at trial and you saved the community the time and expense of a trial.  It is evident that the committal hearing served to help dispense with a more serious charge that you were facing and you were prepared to take responsibility for the offending now before me at an earlier stage.  You are to be given a further palpable allowance in your favour as, by pleading guilty, you have helped reduce the backlog of trials that the courts are facing due to the pandemic.

60As at the time of the plea hearing last year I was not at all convinced that you had much in the way of remorse for your offending and the impact it might well have had upon the victim.  It seemed to me that you were engaging in victim blaming, which was a great shame, but it was explained to me also that there have been other incidents with the victim where you did feel that you were falsely accused, and so there is a broader context to that.  Also I put a good deal of what you have said in this regard down to mental health and deprived background issues and how you might see things, or you did at that time.

61You are a youthful offender of Aboriginal background.  Notwithstanding your criminal history, I must maximise your chances of rehabilitation and I note that you are still amenable to treatment and engage in programs to help rehabilitate you, which is a good thing.  Also at such a young age you are at risk of becoming institutionalised if we are not all careful about that.

62I accept your counsel's submission that your prospects of rehabilitation hinge on your ability to remain abstinent from drugs and alcohol and address your mental health and offending behaviours.  I also accept that you have shown some insight into the significant supports you would require to achieve this.  I understand that whilst you were in custody on a previous occasion at least you tried to undertake courses and work.  You completed three ATLAS sessions at one prison before being transferred to another.  You have also undertaken a hospitality certificate course.

63When on remand last year you were at Ravenhall and worked in the kitchen and you had been looking to move into industries.

64You had also begun to connect with your Aboriginal heritage.  You had completed the Beyond Survival program, which is a 10-day course run by VACCA.  Through this program, you connected with Uncle Kevin Russell, who you saw as a role model, and with whom you intend to continue contact once you are in the community.  You were also linked with Aboriginal liaison officer, Ben Clark, who had been another source of support for you.

65You first received an NDIS plan on 29 June 2021 whilst on remand for the matters now before me.  The supports provided were limited as a result of your custodial status.  The plan was subsequently reviewed on 28 February last year.  Your goals were to obtain long-term accommodation, find employment and improve your functional capacity and literacy through allied health therapies.

66I am not going to recite all that I was told at the plea hearing because a good deal of water has gone under the bridge since then.  You were released on bail by me on 8 September last year.  In a bid to get you out of custody as soon as I could, you were then placed on CISP bail on 3 October last year.  A number of supports were put in place.  Although you struggled at times while on bail and you have had some very challenging times, including one particularly traumatic thing that happened to you in recent times, and you have come to police attention on occasion, overall I think you have done very well for a substantial period.

67In saying this, I am mindful you have got other matters that you are accused of since, but I do not take those into account because you have not said whether you are pleading guilty or not guilty to those, and so it is not proper for me to do that. 

68You do have a way to go with your substance abuse issues and your offending behaviours overall, but I do understand that you are wanting to pursue placement with the Bunjilwarra Koori Youth Alcohol and Drug Service.  I express the strong wish that you do as soon as you can.

69Up till the time that you were put back into custody this year, you were living at Perry House for a period and, as I say, you had been doing pretty well overall.  You had been very well supported in the community thanks to CISP and in particular to Mr Mirza, as well as to you.  You had made a good deal of progress over a number of months and some of those were quite challenging.  The final report I received from CISP told me how well you had done overall and so did the letter from Mr Mirza, so you should be proud about that.  Have a think about those gains each time you are tempted to go off the rails.

70So I was about to sentence you and it was going to be gaol and a community corrections order in August of this year; however, instead I had to issue a warrant for your arrest and you were arrested in September.  You were then released on bail once more; however, you failed to appear on 4 October and then you were arrested on 6 October and here you are.  I am concerned that there are further charges that you are facing, but I will say no more than that.

71Your counsel conceded that term of imprisonment was justified due to your relevant criminal history and the nature of the offending before me.  However, it was submitted at the original plea hearing and now that, having regard to the principle of parsimony and significant matters in mitigation, a sentence which is far less than the time you had already served was appropriate and that remains her submission. 

72Counsel for the prosecution today submitted that a term of imprisonment was appropriate reflective of time served and that it would be unnecessary to impose a community corrections order in combination with this.  I was also told by your counsel as to the ongoing support that you would have in the community through NDIS and from Mr Mirza, who, bless him, said that even if he was not being paid for it effectively he would still be in your life to help you.

73At the end of the day, Mr Spencer, I am concerned about protection of the community and your ability to rehabilitate without supervision from the court, but you are going to get that supervision and support in other ways when you are finally released.  I had you assessed for a community corrections order originally.  They did not recommend that you undertake such an order.  To your credit, you were reassessed as being suitable and a justice plan had previously been prepared and I have received update information from them. 

74However, in view of the significant time you have been in custody in relation to these matters and the other supports that will be put in place upon your release, I am satisfied that it is appropriate to accede to counsel's submissions.  Therefore in relation to the offences you are convicted and you are sentenced to an aggregate term of imprisonment of 300 days.  I declare that that period has already been served and I note for the records that you actually have served 458 days in relation to this matter.  So those days, they are not a voucher to use elsewhere but they will be noted in any further proceedings if there needs to be notice taken of those for any reason.

75If not for your pleas of guilty I would have imposed a total effective sentence of imprisonment of three years with a non-parole period of two years. 

76Is there anything further, any ancillary orders?

77MR PICKERING:  No, Your Honour.

78HER HONOUR:  No. 

79MS BALL:  No, Your Honour, nothing further.

80HER HONOUR:  All right.  Now, did you want to have a word with your client?

81MS BALL:  If I could just briefly.

82HER HONOUR:  Do the custody officers have any difficulty with that?

83CORRECTIONS OFFICER:  No, Your Honour.

84HER HONOUR:  I can remain on the Bench if you'd prefer while that happens or what do you say there, custody officers?

85CORRECTIONS OFFICER:  No.  No issues.

86MS BALL:  I can also speak to him down in the cells after this matter's concluded.

87HER HONOUR:  All right.  Look, I think it is an occ health and safety issue for the officers, who I've put on the spot there.  So, look, I think that might be best if you do that.

88MS BALL:  Certainly.  I can do that.

89HER HONOUR:  If that's all right.

90MS BALL:  Yes, of course.

91HER HONOUR:  Very well.  So there's nothing further, no?  Thank you.

92MS BALL:  Nothing further.

93HER HONOUR:  All the best, Mr Spencer.  All right.  You just keep in mind all those good people in your life and those kids you want to be a good dad to, all right?

94OFFENDER:  Yes, Your Honour.

95HER HONOUR:  Thank you to CISP and to Mr Mirza and your counsel and of course to the fairness of the prosecution in the matter.  Yes, thank you, we'll now adjourn.

‑ ‑ ‑