Director of Public Prosecutions v Stelzer (a pseudonym)

[2019] VCC 871

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SETH STELZER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2019
DATE OF SENTENCE:	11 June 2019
CASE MAY BE CITED AS:	DPP v Stelzer (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 871

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Gray	Office of Public Prosecutions
For the Accused	Ms S. Poulter	Greg Thomas Barrister and Solicitor

1HIS HONOUR:  Seth Stelzer[1], you have pleaded guilty to three charges of common assault, one charge of recklessly cause injury, three charges of threat to kill, one charge of intimidation or reprisals relating to involvement in a criminal investigation, one charge of attempt to pervert the course of justice and one charge of persisted breach of an intervention order.  Those crimes carry maximum penalties of five years, five years, 10 years, 10 years, 25 years and five years respectively.

[1] Seth Stelzer is a pseudonym name

2You are now 41 years of age.  You pleaded guilty at a reasonably early opportunity and you must get the benefit of that.  It is submitted on your behalf that you have displayed remorse.  I have doubts about that but I will give you the benefit of the doubt insofar as that is concerned.  You do have a significant criminal history and you have been to gaol before for the same sort of offending.  Your prior history is somewhat confusing to try and read but as I understand it you have gaol sentences and criminal convictions for violence and anger going all the way back to round about 1995.

3Importantly in this situation you have six or seven prior convictions for threat to kill.  Because of that you are to be sentenced as a serious violent offender and I understand that the sentences are to be cumulative unless otherwise ordered.  The Crown does not seek a disproportionate sentence and community protection becomes a principal sentencing consideration.  In this situation, for reasons of totality obviously, I must give significant concurrency. 

4I have also got the difficulty that the offending occurs over an extended period of time. Some of it is quite dated, some of it is quite recent.  What has to happen here is that you will be sentenced in essence for a criminal course of conduct over a long period of time.  I am conscious of the fact that I sentence you for each individual crime and I must keep or bear in mind the principles related to totality.  Some of these charges are rolled up, some are not. 

5I am not going to go into some intellectual exercise and in these circumstances I am going to give cumulation on each charge because each is a separate instance but obviously as I have said it is a difficult sentencing exercise in terms of the mathematics.  The circumstances of the offending are that you as I have said are now 41 years of age.  The victims in this matter are your ex-wife Laura Urquhart[2], as well as her and your children, that's Claire[3], aged 23; Luke[4], aged 22; Mary[5], 17; and David[6], 16. 

[2] Laura Urquhart is a pseudonym name

[3] Claire is a pseudonym name

[4] Luke is a pseudonym name

[5] Mary is a pseudonym name

[6] David is a pseudonym name

6You and your former partner met when you were around about 16 years of age.  As the summary says in very simple terms, and I take it no further than that, you have a long and extended history of committing family violence against both your partner and the children.  You were charged on three separate indictments and I will go firstly to the indictment ending with the numbers 71.1.  That has seven charges on it.  Between the 1st and 9 September 2001, Ms Urquhart was about one week off giving birth to Mary.

7She was in the car with you.  You were in a rage.  She drove to the Churchill police station hoping this would calm you down.  While sitting in the car you pulled her head down by her hair and started hitting her in the head.  You had pulled her hair hard enough to pull her hair out and she was left with a bald spot.  That is Charge 1 of common assault.  Between 1 September 2001 and 30 September 2003 and incident occurred at the house where Ms Urquhart slept in the car because she was afraid of you.

8You told her to come inside because it was cold.  She went inside the house and sat in the lounge room.  You were in a rage about something that occurred the previous day and she believed that you were drug-affected.  You tried to make her say, 'I suck cocks.'  She refused to do this and you continued to verbally abuse her.  She would not repeat the words because she thought it would make you even angrier.  At around about 7 am the children got up.  You turned on the television and the children sat in front of it to watch it while Ms Urquhart remained in her seat.

9You punched her in the head when the children were not watching.  You poured milk on her, spat on her, threw cigarette lighters at her and called her a dirty slut.  You continued to scream, yell and verbally abuse her, putting in fear.  This continued until approximately 11 am.  You told her that she was not allowed out of the seat for about six hours.  That gives rise to Charge 2 of common assault. 

10I might add here that I think there is a number of these charges, when obviously these matters have to be resolved, but you have received fairly generous concessions in terms of the charges. That could have easily been a very significant false imprisonment.  But anyway you are not to be sentenced for that.  Throughout the course of the relationship, and more particularly between January 2004 and late December 2010 you would rush at her, push her, yell at her and put her in fear.  That gives rise to Charge 3 of common assault which is a rolled up charge.

11A specific example of that rolled up charge is that between 27 May and 31 December 2004, the family was residing at a house in eastern Victoria.  Ms Urquhart had undergone a hysterectomy after giving birth to the youngest child, David.  While still recovering from this procedure, you dragged her by her hair out of the chair she was seated in and threw her on the floor.  She was still in pain and scared about what would happen.  Shortly after that she went into emergency accommodation. 

12On 31 January 2011 at approximately at 1 am at the house, you assaulted her by punching her to the side of the face and on the head.  That left her unable to open her jaw and she suffered from severe swelling and pain, which is Charge 4 of recklessly cause injury.  On the way to the hospital you said to her, 'You can't go in.  You can't go in 'cause I'll get years.'  She felt sympathetic towards you and did not go into the hospital at that point but went later on.

13On 25 February 2016 an order was made against you in the Latrobe Valley Magistrates' Court on behalf of Ms Urquhart herself, Luke, David and Mary.  That prohibited you from committing family violence against them.  It was to expire in February of 2017.  Between the 1st and 30 April of 2016, not long after obviously that order was made, police attended the property to serve charges on you for offending that had occurred on 5 January of that year against Ms Urquhart.

14Mary and David were home at the time with you.  When police approached the house you answered the door and began screaming at police.  You grabbed the papers from them and slammed the door.  You then threw the papers to Mary and said, 'Look what your slut mother has done.'  David entered the room and sat next to Mary.  You became angry as you read through the papers and said that it was because Ms Urquhart had been having sex with police all the time.  You began throwing items around the room, screaming at Mary about her mother.

15You then told her, that is Mary, that you were going to gaol and you were going to die because you were on blood thinning medication.  You started to cry and told your daughter that she could not let this happen to you.  She tried to contact her mother but did not have credit on her mobile phone.  Instead she sent a message to her sister Claire asking her to contact her mother.  You went into the kitchen and went over to the kitchen sink.  You said to Mary that you were going to kill her mother and then kill yourself.

16You told her that she could not have just one parent in her life because you were going to gaol.  She could either have both parents or none.  That is the first instance of Charge 5 which is a rolled up charge of make threat to kill and in my view is a serious one indeed.  She called her grandmother to come and pick her and David up.  You told her that no one would be leaving the house that night and that their mother – the two kids – that their mother would walk into a dead family because this is what she deserved.

17You said to Mary that you were going to barricade them in the house and that you were going to gas them.  You said they were not allowed to leave.  They were both terrified.  It is a little bit difficult to comprehend that a father could do that to his children but you obviously did.  In any event a car pulled up and eventually the family moved to different accommodation.  Between January of 2016 and November of 2017 you told Ms Urquhart to make a statement of no complaint in regard to matters and you told her essentially to say she had lied in her first statement.

18The intimidation and reprisals related to involvement in a criminal investigation are basically getting people to change stories or whatever it may be and I do not see any real need to go through that in any detail.  That's Charge 6.  Charge 7, you - after one of these phone calls – approached Ms Urquhart's home.  Your son, Luke, was present at the time.  You got out of the car and screamed at Luke, 'You're all fucking dogs.  I'm gonna kill you cunts for talking to Bill[7].'  You then screamed, 'Wait till I get a hold of you cunts.'

[7] Bill is a pseudonym name

19Luke yelled at you to leave and that nobody liked you.  They continued to scream at you and you at them.  Shortly after leaving you sent Luke a text message stating, 'Wait till I see you, you piss weak germ.  You think running Bill I'm (indistinct words) can fight or bash – none of you can fight.  I'll bash the three of you the same time', I assume the same time - 'you piss weak loser.'  That is to your son.  In any event that's Charge 7 of make threat to kill and that's all rolled up into the one charge. 

20You were interviewed and denied the offending.  On indictment ending 97.1, I do not need to go through the family history again, simply this.  The earlier summary referred back to 5 January 2016.  On that day you were home with Ms Urquhart.  You were supposed to be moving something.  An argument ensued.  Ms Urquhart could see that you were getting visibly angry.  You told her you were going to change your Facebook message so she could not see the messages.

21You grabbed the phone, said she did not deserve to have a phone and that you had paid for it.  You walked over to where she was sitting on the couch and began yelling at her.  You leaned over and said, 'Keep going.  Keep going.  Go on, keep going.'  You then said, 'Keep going and I'll bash your head in.'  She believed you were about to hit her, closed her eyes and braced herself.  When she opened her eyes she saw that her daughter Mary was standing in front of you – or front of her and you on her right hand side.  David was also in the room.

22She told Mary to call the police.  Mary picked up the phone.  You said to Mary, your daughter, 'I swear to God you little lagging dog', which caused her to put down the phone.  You were told that you needed – you were needed to leave the house.  You walked towards Ms Urquhart and said, 'If you fucking call the cops I will kill you slut.  What are you trying to do, get me locked up?'  Another charge of threat to kill. 

23You then walked behind her and made further threats to her and again I do not need to go into those, they are not part of the actual charge but the conduct essentially continued.  That gives rise as I have said to a charge of threat to kill.  It was put to me in the course of the plea on your behalf valiantly by Ms Poulter that there were various matters in mitigation of all this, including your childhood and various other matters.  When you were interviewed by police in regard to that threat to kill you said that Ms Urquhart would antagonise you until you got upset and yelled back her, that is the only thing she aims for.

24I think that shows a total lack of comprehension as to the seriousness of what you do and have done in the past.  The third indictment, 47.1, relates to the pervert the course of justice and a persistent breach.  That is in regard to a daughter who was not the subject of the actual intervention order itself and the summary can remain on the court file.  There is no need for me to go into detail.  What you were doing was ringing your daughter, Claire, and trying to get her to get her mother to change her statement and not make – not give evidence.

25Subsequent to that there were a whole raft of phone calls made by you in breach of the order.  It was as I indicated during the course of the plea, not the worst pervert the course that I have seen by some distance but again it does call for a sentence of imprisonment although only small amount of that will be cumulative.  Your former partner has put in a victim impact statement which in very succinct terms describes what you have done to her for a very long time and the effect it has had on both her and her children.

26She said she now suffers from a major depressive order and anxiety.  It affects her day to day life.  Some days are so bad she cannot leave the house.  Again, the children suffering from depression.  You have got her having emotional flashbacks. I don't sentence on this basis but there is a higher probability it would be a complex post-traumatic stress disorder, I would have thought.  That is – she has been diagnosed with depression and anxiety.  The children have been diagnosed with similar difficulties.

27She tries to be there as their mother to support them but as she is suffering from the conditions herself she feels that she is unable to assist them adequately.  I suspect that is just a microcosm of the damage you have done over a very long period of time.  Gaol in this situation is inevitable and it has got to be a gaol sentence which shows how serious this offending to be treated with the application of general and specific deterrence as well as denunciation and an appropriate punishment.

28In your particular situation you have now been in gaol for some 567 days.  As indicated earlier, one of the difficulties I have in this sentencing process is that a significant amount of the offending is a significant period of time ago.  What I have endeavoured to do is to impose an appropriate sentence which recognises the seriousness of what you have done.  Materials were provided upon your behalf, and again were contained in submissions.

29You were the victim of sexual abuse when you were younger.  Your parents separated at an early age and you have had ongoing difficulties ever since.  You have been diagnosed in 2013 I am told with a bipolar affective disorder and treated with Seroquel.  It was pointed out, and I have already indicated this, the offending spans a period of 18 years which causes difficulty in itself and I have already indicated I think the pervert the course is at the lower end.

30In any event you have now reached an age where you cannot really be relying on your childhood to justify your behaviour.  You were born to a Spanish Chilean father and a French Chilean mother in the early 1970s.  You grew up with an older brother and sister.  She took her own life in July after a long battle with mental health issues and I understand from the Bar table and Ms Poulter, and I accept this from her, that that has caused you real difficulties insofar as this offending is concerned or some of it at least as well.

31Your parents separated when you were in Grade 5 when you were aged about nine or 10 years old.  You have said this has affected relationships and responses to stress since that time.  You saw a psychologist around 2005, 2006 where you first gained some insight of these personal responses and the effect of bottling up your feelings.  I note that that, however, is now some 14, going on 15 years ago and nothing much appears to have changed.  You have used drugs since a relatively early age.  I do not know how much drugs has got to do with this, not a lot I suspect.

32I think is probably a significant contributor is a personality disorder and just as I said before an incomprehensible ability to understand the damage that you are doing to people that you should be in fact protecting.  You now say that you understand the triggers that set these things off.  You have been doing your best in gaol.  You are a mentor to another prisoner and you have tried to do courses and that is all very much to your credit.

33You do have a relatively good work record, though you have periods of time off work due to mental health and physical health issues.  You claim that you have a strong belief in family and you claim that you hope to be able to resume contact with your children at some stage.  I would think that is probably pretty unlikely but that is a matter for the future and not a matter for me to really take into account at this point in time other than to not give you a sentence which could be described as crushing.

34It is conceded by your counsel that general and specific deterrence are significant in this sentencing process.  It is put that you have had no contact with your family since February 2018 when you were incarcerated.  That is a punishment in itself but I would have thought a totally understandable reaction from them.  The intervention orders against you have now been – as I understand it – extended for a period of five years from around about now and I suppose that gives some element of protection in this set of circumstances.

35That can be extended in the future.  How much effect that is going to have in this sort of area I have got no idea and I must confess not a lot of faith.  The prospects of your rehabilitation are really up to you.  If you continue to behave in this way and inflict violence in this way, at some stage you will get a crushing sentence as it will become necessary to simply keep you away from those, as I said, you should be protecting, not threatening and abusing.

36The risk of you reoffending insofar as your family is concerned, I think on the material before, as far as I am concerned has to be regarded as high.  The remaining period of time that you are in custody is a matter for the parole board, how much longer you do.  That, I suppose, is really up to you.

37The risk of you reoffending I will leave to the parole board.  I am not buying into it, and it may well be that you get parole, it may well be that you never do.  They are not matters in which I can take account. I have to sentence on the basis that you will do the entire sentence and I sentence accordingly.

38Accordingly, the sentence is as follows:  on indictment No.271.1, on Charge 1, three months; on Charge 2, nine months; on Charge 3, six months; on Charge 4, nine months; on Charge 5 which is the threatening of the children, and as I said incomprehensible to me that someone could do that, 30 months; on Charge 6, six months; on Charge 7, 12 months.  I direct that on that indictment, one month of the sentence imposed upon Charge 1, three months of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 4, two months of the sentence imposed on Charge 6, and four months of the sentence imposed on Charge 7 be served cumulatively upon each other, and upon the sentence imposed on Charge 5.  That in my calculation gives an effective sentence on that indictment of three years and nine months.

39On Indictment ending 97.1, is a single charge at 12 months.  On indictment ending 47.1, the divert the course charge, on Charge 1, four months; and on Charge 2, two months.  I direct that one month of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  That gives a total effective sentence on that indictment of five months.  I direct that three months of the sentence imposed on indictment ending 97.1 and two months of the sentence imposed on indictment ending 47.1 be served cumulatively upon the total effective sentence imposed on indictment ending 71.1.  That gives a total effective sentence on this sentencing occasion of four years and two months.  I direct that you serve the minimum term of two years and six months before becoming eligible for parole.  I've already made my comments about that.  I direct that 572 days be reckoned as having been served under this sentence. 

40Pursuant to s.6(aaa) of the Sentencing Act, I say that but for your pleas of guilty in these circumstances, I would have given you 5 with a 3. There are no other orders I have to make, Mr Gray, Ms Poulter?

41MR GRAY:  Not that we see, Your Honour.

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