Director of Public Prosecutions v Steele (a pseudonym)
[2022] VCC 1633
•27 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WENDELL STEELE (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2022 | |
DATE OF SENTENCE: | 27 September 2022 | |
CASE MAY BE CITED AS: | DPP v Steele (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1633 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – Family violence – Assault – Drug of dependence – Sentence indication – Intervention order – Character references – Rehabilitation – Delay
Legislation Cited: Criminal Procedure Act 2009 (Vic)
Cases Cited:Pasinis v The Queen [2014] VSCA 97 - Filiz v The Queen [2014] VSCA 212 - Akoka v The Queen [2017] VSCA 217 - Worboyes v The Queen [2021] VSCA 169 - DPP v Zogheib [2015] VSCA 334.
Sentence: TES: 181 days Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. MacDougall | Office of Public Prosecutions |
| For the Accused | Mr D. Sheales | Tait Lawyers |
HER HONOUR:
1Wendell Steele,[1] your case was third in the list for trial in the Ballarat circuit commencing 26 September 2022 when you sought a sentence indication on the current charges. On 15 September 2022, pursuant to s207(1)(a) of the Criminal Procedure Act 2009,[2] having been told that you had already served 181 days of imprisonment on remand, I indicated that if you were to plead guilty, I would not impose any extra time in gaol or a Community Correction Order.
[1] A pseudonym
[2]Criminal Procedure Act 2009 (Vic) s207(1)(a).
2On the basis of this indication your matter resolved and you were arraigned on Indictment K11334981.2 and pleaded guilty to the following charges:
- the common law assault, there were three charges - that is 1, 2, and 5;
- contravention of a family violence order by one - that was Charge 3;
- intentionally damage property - Charge 4;
- possess drug of dependence - Charge 6;
- persistent contravention of a family violence order - Charge 7; and
- unlawful assault - that was Summary Charge 29.
Circumstances of the offending
3A revised summary of prosecution opening for sentence indication was adopted as the opening for the plea. A copy of that document was tendered and marked as Exhibit A. I do not propose to repeat the contents of that document in full now, rather a summary of the factual basis for your plea is as follows.
4The main victim of your offending is your estranged wife Blanche Steele[3] (who I will refer to as 'the victim'). Your marriage to the victim had endured for approximately 10 years. You have two children born to this union. The victim had another two children from an earlier relationship. You all lived together at an address in regional Victoria.
[3] A pseudonym
5There was a history of turmoil in your marriage and you had separated in late 2017. At that time an Intervention Order was put in place in favour of the victim. In December 2018 you reunited with the victim. The Intervention Order stayed in place until April 2019 when it was varied to allow contact between you and your wife. The Order continued to prohibit family violence or damage to property.
6The first incident occurred on 7 May 2019. On this day you were at your home and you had a verbal argument with the victim and then head-butted and punched her, resulting in a black eye and a sore cheek - and that is Charge 1, common law assault, and part of Charge 7, which was the persistent contravention of intervention order.
7The second incident was on 12 May 2019. This was Mother's Day and you and the victim were going to your mother's home for the day. You wanted her to apply make-up to her face and an argument broke out. You pinned the victim to the towel rack in the bathroom and head-butted her with force, and then pushed her head through the plaster wall. You made threats to drain your bank account and take your daughters to America.
8
The argument continued and moved to the bedroom. You took the victim's phone. As she tried to leave the room the victim attempted to grab her phone. You threw her onto the bed, the victim continued to try and recover her phone and ultimately fell off the side of the bed onto her back. The verbal arguing continued inside and outside the house, with the victim trying to retrieve her phone and keys. At one point during this incident you were on top of the victim and strangled her neck with your hands - and that is part of Charge 2, common law assault, and part of
Charge 7, persistent contravention of intervention order.
9Your step-son was present and telling you to stop. He grabbed you by the neck from behind and tried to pull you off his mother. You then grabbed him and pinned him on the ground, placing force on his face. This caused him pain in his face, neck and shoulders - and that is Summary Charge 29, unlawful assault, and Charge 3, contravene intervention order. He went to his room and locked the door. You kicked the door in and yelled at him, calling him 'a disrespectful little cunt' and told him to 'respect his elders'. The victim then got involved. She came into her son’s room and attempted to get you out. You spat in her face and grabbed him by the throat. The victim then punched you in the face and you left the room. Your step-daughter was present and witnessed this incident.
10The final incident occurred on 24 May 2019. You had been home during the day and admitted during your interview with police that you had used methylamphetamine around midday. You spent the remainder of the day cleaning and cooking dinner. The victim returned home around 4.30 pm. Whilst the victim was in the bedroom you tried to take her phone and accused her of cheating. An argument erupted and you both moved into the kitchen.
11The victim left the kitchen and went to the bedroom, where you cornered her near a cupboard. There was a physical struggle and the victim left the room, moving to the study area where you had your computer. The argument continued, with the victim saying she was going to take the two eldest children to their father's place. You took her car keys to prevent her from leaving, as well as taking her phone. At some point you smashed her mobile phone and the victim punched and damaged your computer screen - and that was Charge 4, intentionally damage property.
12
The victim then ran outside and you dragged her back inside by grabbing her around the neck. You threw her to the ground, causing her to knock her
head - and that was part of Charge 5, common law assault. The victim was in the study area and you were on top of her, and strangled her by placing both hands around her neck, placing pressure upon her neck - and that is part of Charge 5, common law assault. The victim then kicked you backwards with both feet, causing you to fall into the study wall and cause a large hole to the plaster wall. This was witnessed by three of the children, and that is part of Charge 7, persistent contravention of intervention order.
13Your step-daughter went to the rear of the house and called her friend's mother via Skype. This woman called Triple 0. Police arrived shortly after. Upon their arrival the victim was yelling at police, 'Get him out of my house'. You were highly agitated and were immediately removed from the address. The victim and the children were emotionally and visibly upset.
14The victim was assessed by ambulance officers and later admitted to Hospital with substantial bruising. The victim was kept in hospital overnight for further examination and assessment.
15At the time of your arrest police located a small quantity of white rock substance in your possession. This substance was analysed and found to be methylamphetamine - and that is Charge 6, possess drug of dependence.
16During your police interview you said that things had gone too far, 'I don't like pushing and shoving or any of that sort of stuff. I guess I'm hurt, she's hurt, the kids are hurt. It's gone too far'. You also said that you were trying to calm the victim down during the incident. You denied strangling the victim and said that any bruising on her neck was likely caused as a result of a choker used during consensual intercourse. With regard to drug use you admitted to regular use of methylamphetamine.
17You were remanded in custody on the day of your arrest, 24 May 2019, and remained in custody after four unsuccessful bail applications, until you were finally granted bail on 20 November 2019.
Nature and gravity of offending
18In determining the gravity of your offending, I have had regard to the maximum penalties for each of the offences, and they are: 10 years for criminal damage; five years' imprisonment for common law assault, persistent contravention of intervention order and contravention of intervention order intending fear or harm; one year for possess drug of dependence; and three months for unlawful assault. The maximum penalty of an offence is the yardstick set by Parliament and the starting point when considering objective seriousness. Your offending was capable of summary determination and it was your election to go for trial to the County Court.
19Offending in this manner was not isolated behaviour for you. The assault prior conviction you have from 2018 related to the same victim. Although you engaged in counselling at that time you were not sufficiently equipped to deal with a return to your marriage. By late 2018 when you reunited you both had problems with drug addiction and both of you had engaged in extra-marital sex, separately and together. Your relationship was best described as toxic, you had lost trust for one another, and, together with your drug use, this made you both quick to argue and these arguments soon escalated out of control. It is in this context that your offending occurred. Although this indicates the dysfunctional nature and volatility of your relationship, it in no way excuses your behaviour.
20Mr Steele, whatever the perceived contribution of the victim to the offending, your behaviour was outrageous and is condemned by the court. You should have walked away. Your wife and your children were entitled to feel safe in the family home. They were entitled to feel loved and protected by you. Instead, on the occasions the subject of these charges you abused and assaulted your wife in front of your children and assaulted your stepson as he tried to protect his mother.
21Committing family violence upon family members is a prevalent crime which deserves the stern denunciation of the court to reinforce the message that such violence will not be tolerated and will be punished severely. The Court of Appeal has on numerous occasions emphasised that family violence is very serious and must be condemned.[4] I have no doubt this message was brought home to you as you sat in a gaol cell for the first time in your life and struggled to get bail for these charges.
[4]Pasinis v The Queen [2014] VSCA 97, [53]; Filiz v The Queen [2014] VSCA 212, [23].
Personal circumstances
22You are now 37 years of age. You were born and raised around the Ballarat area. Your mother and your father remain together and are very supportive of you. Your father submitted a testimonial and your mother gave heartfelt evidence at your plea.[5] Your parents own and operate a hard waste recycling and tip truck business and have done so for 40 years.
[5] Exhibit 2 on the Plea.
23You are the eldest of four children and enjoy a good relationship with your siblings. In terms of your education, you attended Primary School, followed by Secondary College in regional Victoria. Upon leaving school at the age of 16 years you went to work with your parents in the family business.
24The family business had previously been owned by your late grandfather and your grandmother. At the age of 12 you were witness to the death of your grandfather in a tragic work accident. This has had a profound and traumatic impact upon you and is something you continue to struggle with to this day.
25In 2007, following in your family's footsteps, you purchased your first tip truck and began your own business carting for local quarries, and sand and soil yards, around the Ballarat area. Since that time, you have moved to carting grain and you currently subcontract to local businesses
26Approximately 10 years ago you met and married Blanche Steele. In July of 2010 your first daughter was born and there were severe complications. She required hospital care and there was concern she would have long term health issues. In 2013 your second daughter was born. As I have mentioned, your mother gave evidence at your plea and your father wrote a testimonial. Both speak of the fact that you are very close to your girls and not being able to see them has been devastating for you. I was told that you are continuing to fight for contact with your daughters through the Family Court. I consider this to be a form of extra curial punishment for your offending.
27Illicit drug use has been a part of your life from at least 2014. In September of that year you were dealt with at Magistrates' Court for possession and use of methylamphetamine. You continued to use and no doubt this has had a considerable impact upon the demise of your relationship with your wife and eventually led you to prison. You admitted having used the drug on the days you offended and in your record of interview you spoke of having used drugs in considerable amounts from when you reunited with your wife in late 2018.
Matters in mitigation
28Your counsel in a persuasive plea has submitted that I should impose no more than three months' imprisonment. Mr Sheales argued that I should not reckon the entire 181 days that you have served in custody for a variety of reasons that I will turn to shortly. It is apparent that, having been arrested and immediately remanded in custody, you have felt the very dire and direct consequences of your behaviour.
29In addition to your time in custody, Mr Sheales relied on the fact that you have also spent three months in inpatient treatment. Necessarily, this time had restrictive and punitive aspects in conjunction with its rehabilitative focus. It was submitted that I should take this time into account pursuant to the principles in Akoka v The Queen.[6] Although this time does not represent or equate with pre‑sentence detention, I agree it is time that should be taken into account as part of the instinctive synthesis of sentencing and also as a means to encourage others in your position to participate in such programs.
[6]Akoka v The Queen [2017] VSCA 217.
Plea of guilty
30As described above, your case resolved at a sentence indication hearing in recent weeks. Although your plea of guilty came just before trial, I consider in the circumstances it has significant utilitarian benefit. The court has been spared the time and expense of what would have been an emotional and traumatic trial. Several witnesses, in particular your children and stepchildren, were not required to give evidence at all and your wife was not required to give evidence at trial.
31I accept your counsel's submission that a plea of guilty during the COVID-19 pandemic is worthy of greater weight in mitigation and should attract a more pronounced amelioration of sentence than at other times.[7]
[7]Worboyes v The Queen [2021] VSCA 169.
32Mr Steele, your counsel submitted that I should consider your plea to be a valuable one in the sense that the case against you was not particularly strong. He pointed to discrepancies between the VARE evidence of your children and the evidence of the victim, and also to the fact that the victim was drug affected at the time of the offending which likely would have impacted upon her credibility and reliability. I accept his categorisation of the case against you. In these circumstances, although I cannot increase the utilitarian value of your plea, I can and do take into account the subjective factors that your plea of guilty demonstrates. These factors include your desire to facilitate justice, your acceptance of responsibility for your offending and as an indicator of the depth and degree of your remorse.[8]
[8]DPP v Zogheib [2015] VSCA 334.
33I accept that you are now remorseful for your part in the offending. Your remorse is evidenced by your plea of guilty and referred to by a senior counsellor at a rehabilitation facility, in her letter to the court dated 7 June 2021.[9] In my view, however, the most compelling demonstration of your remorse is through the progress you have made towards rehabilitation. You have developed insight into your offending and have dealt with, and continue to deal with, the very reason behind the offending - your drug use and your attitude. In these circumstances I propose to allow a significant discount for your plea of guilty and I take into account your remorse as a matter in your favour.
[9] Exhibit 4 on the Plea.
Onerous conditions in custody due to COVID
34Another matter I take into account, if you were to be returned to gaol, are the onerous conditions in custody as a result of the COVID-19 pandemic. Your time on remand occurred three years ago now, that is before the quarantine, lockdowns, limited programs and an inability to distance from infection that are all factors and regular features of the custodial experience these days. The current information from Corrections confirms that the effects of the pandemic for prisons are serious, ongoing and fluid. This is particularly so in light of community outbreaks of COVID-19.
Delay
35Delay is a very important mitigatory factor I take into account in your case. It is now over three years since you offended. You have used this time well and you have progressed your rehabilitation. Initially you were in custody. You were released on bail and lived in at the family beach house away from your supports. You relapsed into drug use and you were charged with other offending. It seems this relapse, not seeing your children and other financial issues were the rock bottom you needed to get serious about your rehabilitation.
36You were admitted into an inpatient rehabilitation program for three months, followed by a period on the aftercare program. You have undertaken parenting courses, anger management and breaking the cycle of conflict courses. Currently, you are still attending NA meetings at least three times per week. You have provided drug screens, both urine and hair, which show that you are clear of all illicit substances.
37I also accept that since your arrest in May 2019 the worry and strain of this case has caused you considerable anxiety and stress. Since this time, you have been in limbo, not knowing if you would be returned to gaol. To your credit, since early 2021 you have not let this derail your progress towards rehabilitation.
Rehabilitation
38It is my view that you have excellent prospects for rehabilitation. You have insight into your offending. Importantly, you are currently abstinent from illicit substance use. You have completed the programs I just mentioned and are currently engaged in Narcotics Anonymous. You have returned to the family business and have worked up to full-time employment. You are engaged with your family and your mother gave evidence that you have returned to the hardworking, responsible and caring son you once were. You are taking appropriate action through the Family Court to gain contact with your daughters. Your family are very supportive and you have the added motivation of your children as an incentive to remain clear of drugs.
39These factors all combine to fortify my view that you are a very strong candidate for reform and not someone who should be returned to gaol and not someone who needs the support, supervision and treatment that could be provided on a Community Correction Order.
Sentencing principles
40I consider that the relevant sentencing principles that must be applied in your case are general deterrence, denunciation and just punishment. In my view, specific deterrence plays little or no role in the sentencing matrix, given the fact that you have served a lengthy period of imprisonment on remand almost immediately after the offending before the court. Further, I am of the view that community protection in your case can best be achieved by fostering your rehabilitation. I also take into account the principles of proportionality and parsimony.
41Mr Steele, I propose to sentence you to one aggregate term of imprisonment as I am satisfied that the offences are founded on the same facts or form or are part of a series of offences of the same or similar character. So, in relation to the offences before the court you will be convicted and sentenced to be imprisoned for a period of 181 days. You have pre-sentence detention in the amount of 181 days and I propose to order that period has been served by way of pre-sentence detention.
42Pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty but been found guilty of these charges after trial I would have sentenced you to a combination penalty of 12 months' imprisonment with a 12‑month Community Correction Order.
43Is there disposal sought of the drugs?
44MS PHILLIPS: I don't believe there's any disposal order filed, Your Honour. I'm happy to double‑check though and I can send it through to the court afterwards.
45MR SHEALES: We'll consent so it can be made in chambers that order.
46HER HONOUR: Yes, no problem.
47MS PHILLIPS: I will check and confirm. Thank you, Your Honour.
48HER HONOUR: Yes. All right. I'm happy to make it in chambers if need be. Thanks for the indication. Is there anything else?
49MS PHILLIPS: Nothing further, Your Honour.
50MR SHEALES: I don't think so, Your Honour.
51HER HONOUR: All right. Mr Steele, can I just say that I'm really impressed with the progress that you've made and the evidence that your mum gave. Clearly, you're doing really well and I wish you every success in the future, and I hope that you can get to see your girls fairly soon and that all works out for you. So, stay on the right course and, as I say, I wish you all the best. All right. We'll adjourn.
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