Director of Public Prosecutions v Spiteri
[2020] VCC 1847
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-01052
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODY SPITERI |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2020 |
| DATE OF SENTENCE: | 20 November 2020 |
| CASE MAY BE CITED AS: | DPP v Spiteri |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1847 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Aggravated burglary person present - engage in conduct endangering persons - use carriage service to menace - common assault - drive whilst disqualified - trespass
Legislation Cited: Crimes Act (Cth) 1914, Sentencing Act (Vic) 1991
Cases Cited:
Sentence:3 years and 4 months’ imprisonment, 22 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms J. Swiney Ms K. Moloney | Kylie Moloney Legal |
HIS HONOUR:
1Brody Spiteri, you have pleaded guilty to one charge of aggravated burglary with a person present, one charge of engaging in conduct endangering persons, one charge of using a carriage service to menace, two transferred summary charges of common assault, one transferred summary charge of driving whilst disqualified and one transferred summary charge of trespass.
2The maximum penalties for these offences are as follows:
- Aggravated Burglary with Person Present 25 years’ imprisonment
- Engage in Conduct Endangering Persons 5 years’ imprisonment or
600 penalty units- Use a Carriage Service to Menace 3 years’ imprisonment or
180 penalty units- Common Assault 3 months’ imprisonment or 15 penalty units
- Driving While Disqualified 2 years’ imprisonment or 240 penalty units
- Trespass 6 months’ imprisonment or 25 penalty units
3You were born on 4 June 1998 and you are now 22 years of age. You were aged 21 at the time of the offending in September-October last year.
4You have a prior criminal history about which I will go into more detail shortly.
5The victim in this matter was 22 years old at the time of the offending.
6You and the victim had been in a relationship which commenced around January 2018 and ended around June 2019. From the end of August 2019 to the end of September 2019, your relationship had been on and off again.
7The facts of your offending are set out in detail in Exhibit A, the Summary Of Prosecution Opening. Briefly stated, they are these:
· On 27 September 2019, you committed an aggravated burglary at an address in Maryborough with the intent to assault a person therein (Charge 1) and a common assault against the victim (Summary Charge 15).
· On 10 October 2019, you committed criminal trespass at the same address against the same victim (Summary Charge 16), following which you unlawfully assaulted the victim (Summary Charge 6) and, while driving whilst your authorisation was suspended (Summary Charge 13), you engaged in reckless conduct that put the victim in danger of serious injury (Charge 2).
· Between Friday 27 September 2019 and Friday 11 October 2019, you used a carriage service in a way that a reasonable person would regard as menacing towards the victim (Charge 3).
The details of the offending are as follows:
As to the first incident which gave rise to the charges of aggravated burglary and common assault
8During the day on Friday 27 September 2019, you and the victim had been fighting about the victim liking a number of photos of other men on Facebook. The victim had also posted to social media about being in Bendigo and you messaged her asking what she had been doing and where she had been.
9At approximately 4.46 pm the victim was at her home in Maryborough when she received a text message from you that read, “Got about 1 minutes to answer ya phone, reply, or come to door before I force entry” followed by another message stating, “Cars in shed, purse and bag are in it. So ya here.”
10The victim did not respond, as she was in bed. She tried to ignore the messages and continued to try to go to sleep.
11You let yourself into the house and entered the bedroom where the victim was sleeping. You grabbed her by the arm and rolled her over to face you. You demanded to know where her phone was as you wanted to look through it. The victim hid her phone under the doona cover so that you could not see it.
12You grabbed the victim's jumper around the chest area and lifted her off the bed before dropping her back on it. You sat on her hip area and pinned her to the bed by placing your left hand across her neck and jaw area.
13You took the victim's phone from her and looked through it while keeping her pinned. At the same time, you also spat in her face a couple of times.
14Eventually you got off the victim but continued to look through her phone.
15The victim told you to leave on a number of occasions, but you responded that you would not until you were done with her phone. You told her to call police on you and get you arrested; however you kept the phone so she could not do so.
16The victim asked you how you got into her house and you told her that you had climbed through the bathroom window.
17After close to an hour you stopped going through the phone and took some photos of conversations between the victim and her father.
18You left the house and got a lift from a friend before returning ten minutes later. When you returned the victim was in her car in the driveway. You asked her if she was going to the police station. The victim told you that she was going to her parents' house for tea. She showed you the swelling to her jaw from where you grabbed her, and you told her to cover it up before she went anywhere.
19At approximately 7.30 pm you and the victim had a further text message exchange about the incident at her house, which included the victim sending you a photo of her jaw and neck area.
As to the second incident which gave rise to the charges of trespass, common assault, driving whilst disqualified and reckless conduct endangering serious injury
20At approximately 9.38 pm on Thursday 10 October 2019, the victim missed a call from you.
21At approximately 10 pm, the victim received a message from you asking her to take down a post that she had set on Facebook that referred to you. You called her again at approximately 11.28 pm, which went unanswered.
22You then sent two text messages to the victim which read, “Got 3 seconds to delete that post” followed by “Or I’ll be at your house”.
23You called the victim again at 11.29 pm which was not answered, before sending a text to her reading, “Fucking idiot!!”
24You called the victim again at 11.30 pm.
25Shortly after the last call, the victim heard your car pulling up in her driveway. You walked to her back door, which was locked. The victim shut and locked the bathroom window, while you walked around to the front of the house saying, “Fucking open the door”.
26You sent three further text messages to the victim which read, “Open the door”, “Hurry up” and “If you don't open it, I'll find my own way in!!!!”.
27You called the victim at 11.35 pm, which went unanswered, before sending her a text message reading, “Now!!!!”.
28You called her again at 11.36 pm and sent her a message stating, “If you don't want me to make a ducking scene open!!!!!”. The “d” in “ducking” is most probably a typographical error.
29You called the victim twice more between 11.36 pm and 11.37 pm before sending two further text messages telling the victim to answer her phone.
30At 11.38 pm you called the victim again before sending her a text message reading, “NOW BEFORE I FUCKING RIP YA DOOR OFF THENFUCKING HINGES!!”
31At 11.39 you called the victim again before messaging her again to answer her phone, and a further message that read, “WHAT THE FUCKS SO HARD ABOUT THAT!!!!!!”.
32You called her again at 11.40 pm.
33At 11.42 pm the victim messaged her father to tell him that you were at the house and trying to get in. Her father responded that he was coming to her house and that he had called the police.
34The victim heard you attempt to open the back door, then return to your car before attending at the bathroom window and opening it to enter the house.
35You entered the bedroom where the victim was and turned on the bedroom light while abusing the victim verbally. The victim held her phone to her chest and you threw a pillow at her before grabbing her jumper. She screamed at you to get off her. You started to scuffle before the victim broke away and left the bedroom.
36You followed her out of the bedroom and put your hand above her mouth, telling her to calm down. The victim told you that she needed to go outside, with you telling her to just talk to you.
37The victim grabbed her keys and went out the front door. You followed her outside, so she continued walking out onto the road and started walking in circles to clear her head. While you were outside you were yelling at each other, with you asking the victim to stop being so loud and something to the effect that she was making a scene.
38You got in your car and the victim stood in the driveway in an attempt to stop you from leaving so police could arrive. You yelled at the victim to move or else you would run her over. You reversed back and forth a few times before reversing back into the victim who grabbed onto the spoiler connected to the boot.
39You continued to reverse out of the driveway with the victim holding onto the bonnet, and across the road to the gutter on the other side. When you stopped, the victim fell off the bonnet and hurt her ankle. You then drove away.
40At approximately 11.55 pm, police arrived at the victim's property.
41You sent the victim two further text messages reading, “Good work cops there now” and “We all know how this is gonna end now don’t we! You falsely accuse me of all this shit to the jacks I get locked up and boom your fkn haooy again you won!”
42You called the victim again at 12.01 am, on 11 October 2019 which was not answered.
43You sent a further 15 text messages to the victim between 12.09 am and approximately 7.01 am. None of these messages was responded to by the victim.
44On 15 October 2019, police arrested you at your father's house in Maryborough.
45At approximately 12.16 pm police commenced an interview with you. You responded to most questions put to you, essentially minimising your role, but responded “no comment” to others.
46You indicated a guilty plea on 28 August 2020 prior to a committal listed to occur on 10 September 2020. The prosecution concedes that this is an early plea.
I turn now to your personal circumstances.
47You had a generally happy childhood, except for some domestic disagreements between your parents which on occasion became violent. Otherwise there was no history of abuse or neglect towards you. Your parents separated when you were in Grade 6.
48Your proceeded well through secondary school until halfway through Year 9. The evidence suggests that you were very competent academically and could have gone much further.
49Shortly after your parents separated you moved in with your father and stayed with him until you returned to live with your mother at age 18 after a separation in your first relationship.
50You and your partner subsequently re-united and obtained accommodation near your father. You have a child from a relationship who is now aged six. In February 2018 you had commenced a relationship with the present victim and purchased a house together. That relationship, however, was unstable and continued until September of last year, when it broke down.
51You have a consistent employment record with experience and skills in carpentry, welding, general construction, customer service and cooking pizza.
52You have, unfortunately, developed a serious illicit drug history. You commenced using methamphetamines with your father and his friend when you were in your early teens. You have also used MDMA and occasional cannabis, and at times engaged in heavy alcohol consumption, drinking up to a slab of pre-mixed spirits daily.
53A comprehensive psychological assessment from Mr Simmons, drug clinician and consulting psychologist, was tendered on your plea. In Mr Simmons' assessment, you presented as an articulate and insightful man with no evident disorders of thought or perception. You have a history of panic attacks and your illicit substance use appears to be a method of moderating your emotional state. Whilst you appeared to have experienced some difficulty with anxiety, there was no evidence of a mood disorder at the time of assessment. From a clinical perspective, you would benefit from drug and alcohol counselling with a focus on increasing harm minimisation and relapse prevention strategies.
I now turn to sentencing principles.
54The use of text messaging to menace is not an uncommon form of domestic abuse, and the nature of your texting was likely to cause great insecurity and anxiety on the part of the victim. It was both threatening and abusive as well as protracted.
55Aggravated burglary in the context of domestic violence is a particularly serious offence. Persons are expected to feel safe in their homes and breaches of that sanctity can result in traumatic anxieties felt at the time of the incident and for many years beyond. In addition to entering the premises you assaulted the victim, causing swelling and bruising to her arm and jaw. Your victim's impact statement provides eloquent testimony to the features often observed in these cases. Your victim has suffered physically, financially and emotionally. The high prevalence of this type of terrorising behaviour by a disaffected former partner is well recognised in the community, and decisions of the Courts have emphasised that such offending will be severely dealt with. Principles of denunciation, protection and general deterrence are significant factors in this case.
56Furthermore, your offending was committed in the context of a disturbing and developing history of like offending. Over a two-year period you have previously been convicted of other domestic violence offences. In August 2018, you received a short term of imprisonment and a 24-month community correction order - which you breached - for offending against a different partner, and in 2019 you received a community correction order for offending against the present victim. On the same day you received a sentence of 60 days’ imprisonment for, amongst other offences, affray and recklessly cause injury against a different victim. Despite the previous prison sentences and two court orders directed to assist your rehabilitation, you committed the present offences within two months of your last sentence against the same domestic partner, shortly after your release from prison, thus again breaching the court-directed community correction order. Specific deterrence is therefore also a significant principle in your case.
57The totality of your offending is demonstrated by your further offending on 10 October by trespass into the victim's home and assault, together with the subsequent act of endangering her to serious injury by your conduct with your motor vehicle at a time when your authorisation to drive was suspended.
58In mitigation I accept the matters submitted on your behalf, and in particular:
· your early plea of guilty for its utilitarian value and expression of some remorse;
· your youth, being 21 at the time of offending and 22 at the time of sentence;
· your general anxiety caused in particular by your separation from your daughter that you will no doubt feel in the period of custody and have already felt;
· the period that you have spent in remand custody and that in the context of the further restrictions that have been imposed by the COVID-19 pandemic and which will no doubt continue;
· your long-term history of serious drug use - I accept that in your early adolescence, you had the disadvantage of your father's approval of amphetamine use, and I note that your mother had a problem with drugs at some stage. Rather than disapproval from your father, it appears that your use of amphetamines with him was actively encouraged, and it is likely that that left you more vulnerable to later serious drug abuse. Whilst the fact of having been on drugs at the time of offending cannot be regarded as mitigatory, and taking into account also the fact that you have in the past been given opportunities to address your drug abuse issues, I still consider that some moderate allowance should be allowed for your vulnerability to the use of dangerous addictive drugs from an early age.
59I also take into account your close family support - qualified by your father's example concerning illicit drug use - and your limited insight into the effect of your acts upon your victim. I do not accept, however, that the evidence before me establishes any strong remorse.
60I am particularly guarded concerning your prospects of rehabilitation. Mr Simmons noted that you presented as ‘articulate and insightful’ and your early history, as I have previously mentioned, suggests that you possess a good intelligence. You have the capacity to maintain regular employment and you have some family support.
61A letter to the court from your brother-in-law confirms that you have accommodation and possible employment available on your eventual release.
62Whilst in custody, you have applied yourself conscientiously to personal growth courses that were available to you, and you have been appointed a peer educator in a Work Skills program. These are protective factors that will enhance your prospects.
63Conversely, your repeated pattern of offending and inability to address your serious drug abuse issue, despite court orders directed to assist you, is problematic and without you making changes will likely lead to more offending in the future.
64The fact is, Mr Spiteri, that you have the capacity, you have the intelligence and you have the ability to commit yourself - that means you do not need to be doing this and being where you are now. If you apply your intelligence and your obvious ability to be conscientious as you have shown with employment, you will not find yourself repeating these sorts of matters - but that is something that you have to seriously address.
65I have carefully considered the sentencing considerations contained in ss.16A and 17A of the Crimes Act (Cth) 1914 and s.5 of the Sentencing Act (Vic) 1991, and listened closely and given full consideration to the submissions of counsel for the Director of Public Prosecutions and to your counsel. In particular, I am conscious that a sentence of imprisonment shall not be passed unless, having considered all other available sentences, no other sentence is appropriate in all the circumstances of the case within the Commonwealth considerations, and must be not more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed for the State offences.
66I will now read out your sentence. You may remain seated, Mr Spiteri.
67On Charge 3, the Federal offence of use a carriage service to menace, you are convicted and sentenced to six months' imprisonment.
68I declare that the sentence imposed on Charge 3 commences today.
69On Charge 1, the State offence of aggravated burglary with person present, you are convicted and sentenced to a term of imprisonment of two years and six months' imprisonment.
70On Charge 2, the State offence of engage in conduct endangering persons, you are convicted and sentenced to a term of imprisonment of 12 months.
71On each of the transferred Summary Charges 6 and 15 of common assault, you are convicted and sentenced to one month’s imprisonment.
72On transferred Summary Charge 16 of trespass you are convicted and sentenced to two months’ imprisonment.
73As to the State offences: Charge 1 is the base sentence.
74I declare that six months of the sentence imposed on Charge 2 and one month of each of the sentences imposed on summary Charges 15 and 16 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent.
75The total effective sentence for the State offences is three years and two months' imprisonment.
76I direct that you serve a minimum period 20 months before being eligible for parole.
77On transferred Summary Charge 13 of drive whilst authorisation is suspended, you are convicted and fined $300. In light of the time that you will spend in custody and in order not to impede your prospects of rehabilitation, I have decided not to impose any restriction on your ability to drive a motor vehicle on your eventual release.
78I declare that the sentence for the State offences commences on 20 January 2021, that is, two months from today.
79The total sentence is 38 months' imprisonment for the State offences, and in effect two months of the Federal sentence are cumulated, giving a total effective sentence of 40 months overall.
80The effect of the cumulation of the Federal sentences will mean that you will be eligible for parole after serving 22 months of your combined sentences.
81As to the sentence for the Federal offence, I note that whilst there is an option to impose a recognisance release order with the six-month imprisonment term, I decline to do so pursuant to sub-s.19AC(4)(b) of the Crimes Act (Cth) 1914 being satisfied that such an order is not appropriate since you will be serving a State sentence on the day after the end of the Federal sentence.
82I note that you have been in custody since your arrest on 15 October 2019. Pursuant to s.16E of the Crimes Act (Cth) 1914, and s.18(4) of the Sentencing Act (Vic) 1991, I declare that the period of 402 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
83Pursuant to s.6AAA of the Sentencing Act (Vic) 1991, but for your plea of guilty, the total effective sentence that would have been imposed over all charges is five years' imprisonment with a non-parole period of three years.
84That concludes my sentencing remarks. Is there anything further from either counsel? Mr Prosecutor?
85MR HARRISON: No, Your Honour.
86HIS HONOUR: And defence?
87MS MOLONEY: No, Your Honour.
88HIS HONOUR: Thank you. The court will now adjourn until Monday.
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