Director of Public Prosecutions v Stevenson

[2015] VCC 1775

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01696

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP STEVENSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 December 2015
CASE MAY BE CITED AS:	DPP v Stevenson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1775

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms C. Sedgwick
For the Accused	Mr B. Newton

HIS HONOUR: 

1Phillip Stevenson, you have pleaded guilty to one charge of aggravated burglary, one charge of criminal damage, two charges of common assault and one charge of persistent contravention of a family violence order.  You have also pleaded guilty to three summary matters, one of summary assault, one of committing an indictable offence whilst on bail and one of breaching an intervention order.  Aggravated burglary carries 25 years, criminal damage ten, common assault five, persistent contravention five, summary assault three months, indictable offence whilst on bail three months and breach an ICO two years.  You have already been in custody for a period of 288 days.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  That order is made and handed down.

3I am also aware that some of the charges were committed whilst on bail and accordingly, there be cumulative unless otherwise.  I do not see any reason why there would be total cumulation in this scenario, but I will be referring to it in terms of cumulation.  That is simply the reverse of trying to work it out with concurrency.

4You are now 22 years of age and are clearly still a young offender.  You pleaded guilty at an early, reasonable opportunity.  I accept your plea of guilty as a sign of remorse.  When you were arrested, you clearly were not remorseful and made a number of assertions.  You were, I accept, in a state affected by ice and I do not put a lot of weight on that.  You must of course also get the utilitarian benefit of that plea of guilty.  In situations such as this, the avoidance of putting through the ordeal of cross-examination of your victims is an important one.

5You do have a number of prior convictions.  When one goes through the actual document outlining them, there is certainly a lot of double up.  There is only one for assault.  There a number for, it would appear, damaging property and the assault one is from the Children's Court in any event.

6It is clear from that criminal history that you have had periods where you have not offended, though the nature of the offending, if I may say so, is indicative of a very angry young person.

7A summary of the offending is as follows and it arises out of two distinct incidents.  You and a Ms Hudson, and these relate to the summary matters, had been in a relationship for about six months.  On 11 December 2014, you were present at the Dandenong Magistrates' Court when a family violence intervention order was granted.  That violence intervention order was for you not to commit violence against her.  As I understand it, it did not say that you could not live at the property.

8In any event, the pair of you lived together until 8 February 2015, when she said she kicked you out because of your conduct when coming down from ice.  That address is in Jones Road in Dandenong, where the subsequent offending occurred as well.

9On the evening of 10 February 2015, you went to that address with a friend.  You knocked at the door and went in and started yelling at Ms Hudson.  You demanded cigarettes from her.  She said she did not want to be with you anymore and told you to take your stuff and leave.  An altercation then occurred, when you said, "All right, look at me when I'm talking to you, slut."  You slapped her across the left side of her face with your open right hand and you spat on her.  You would not let her get up off the couch.

10Then, in the Crown opening, it says that you were after her Centrelink money.  I have heard submissions from defence about that and you are not charged with theft, so I will take it no further.  In any event, you grabbed her purse, she grabbed on to it, but you got it off her.  You then kicked her to the left side of the head with your right foot, but only scraping it.  Your friend told you that that was enough and tried to drag you backwards, but you shrugged him off.

11You started yelling at her again, went into the kitchen to get a drink.  You chased her as she fled through the front door, grabbed her by the ponytail and tried to drag her back into the house.  You then pushed her head into the front wall of the house.  She broke free and tried to run.  She was pushed by you into the bins, she was screaming at you to let her go.  She eventually escaped and went to a pizza shop where she was hidden for approximately 20 minutes until the police arrived.  She was fearful and scared to go home.  That gives rise to the summary matters of assault and breaching an intervention order and you are probably fortunate that the maximum penalty for the assault, bearing in mind having heard all that, is only three months.  But it is a negotiated settlement and they are to be encouraged.

12In any event, you were charged with those matters on 12 February.  Accordingly, therefore, as I had indicated, you were on bail for what happened next.

13On 22 February, that is only ten days later, after you had already been charged with the assault on her, the other offending occurred.  The persistent contravention charge commences on 18 February 2015 and that of course started within six days, and I will come to that when I get to it in the Crown summary.

14On 13 February 2015, a full family violence intervention order was put in place by the Magistrates' Court.  In other words, you were no longer to live there and were not to come within five metres of her.  On 22 February 2015, as I have indicated, police were conducting a welfare check and, in response to accusations of yelling and shouting, attended at that address.

15The circumstances of what had occurred as described by the two victims in relation to those matters are as follows.  At about 9 am, on that morning, Ms Hudson, the previous victim, was sleeping in her bedroom upstairs.  She woke up and you were standing over her and said to her, "You've been whoring all night."  She told you that she was too hungover for this and to leave and that you said that she was , "Going to fucking listen to me."

16She tried to get up, but you apparently tried to stomp her.  She moved and you missed.  You looked angry, she said.  She ran downstairs.  She could hear you chasing her.  By the time she got downstairs, were you were already there.  She told you to, "Get the fuck out of the house."  You apparently told her that you were going to talk and there is then dispute about money.  You ripped off your shirt and were clearly very angry.  You sister, Wendy, who was at the house, then ran upstairs to call the police and you continued to abuse Ms Hudson and call her names.  There were other people present at the premises who have not made statements, I have heard little about one of them, so overall looking at the milieu in which all this took place.  I take that into account.

17In any event, in the kitchen, you pushed Ms Hudson, threw a cup of coffee at her but missed, pushed her to the ground and you started to damage household property.  Your sister, Wendy, had woken to the sound of someone pulling out a phone charger near her head.  It was you standing over her.  She knew that you were not allowed at the address.  You told her to, "Shut the fuck up or you were going to stomp her."  She told you to leave and did not want any trouble.

18She went downstairs to make sure Ms Hudson was all right.  You threw items around, damaging them.  You grabbed Wendy by the hair and dragged her across the room and threw her.  You threw her really hard, she got up and with help got you off her.  She suffered pain to her head and she witnessed you throwing Ms Hudson after they had run down the stairs.  Your sister Wendy indicated that she was scared of you.  Eventually, you were removed from the premises, leaving the both women extremely frightened.

19The aggravated burglary is on the basis of you entering with the intent of frightening as opposed to actually assaulting, but the fact of the matter is that you did.

20The persistent contravention offence is that between 18 February 2015 to 22 February 2015, you continually contacted Ms Hudson by phone call or text message 55 times and you went within five metres of her on one occasion knowing that you should not.  You were arrested late that afternoon at your father's premises and said that you had not slept for three days.  You were critical of the victim and certainly made derogatory comments about her.  As I have indicated, they certainly were not indicative of remorse, but I am taking into account the fact that you were quite clearly in a fairly dishevelled and drug affected state.

21In essence, and there is more to it than that on the Crown summary, which will remain on the court file.  That is, what I can only describe as, pretty ugly offending.  The situation is that it is a serious example of an aggravated burglary, to go into frighten two women.  As I say, I am not privy to what the positon of the other people in the house was.  But having done that, you then proceeded to assault them in a humiliating and pretty degrading way.  Your level of abuse certainly towards Ms Hudson was extreme.

22The situation is that whether you are coming down off ice or not, this sort of violence in a domestic scenario is just not on.  It has to be regarded as serious offending.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

23The victim impact statement was read out in court and I take that into account.  As I say, I do not know the nature of any of the people involved in all this, but I take that victim impact statement at face value.  That is the sort of thing that offending such as this causes and even taking into account the actual severity of the charge itself, it leaves people in a state of apprehension, which they should not have to live with.

24Gaol is inevitable and it was not put to me that any other disposition other than a potential CCO with gaol was appropriate.  After you discussing it with your counsel, a submission was put that this would be appropriate for there to be a non-parole period and I intend to do that.  Because of your age, because of your relative lack of serious priors and because of what has been described to me as a determination to rehabilitate, I propose to give you a somewhat earlier opportunity for parole than what otherwise may have been case.

25However, it must be, at all time, borne in mind that this sort of conduct simply cannot be tolerated.  When you get a situation where after one assault and a charge is laid that the offence is carried out again in such circumstances is reprehensible.

26Tendered on your behalf was a report from Mr Cummins, a well-known forensic psychologist.  There were also submissions tendered from your counsel.  There is a couple of things that clearly I take into account.  The plea of guilty being an important one.  Also it is clear from the material that you have been subsequently bashed in gaol, this being your first time in custody and have now been for some time and will be for the entirety of the sentence, I understand, in protection.  That obviously makes it harder for you in regard to some courses, but you have shown a determination to do such courses and I take that into account.

27You have done a number of courses already and your counsel outlined them to me, including industrial cleaning, the program in regard to the effects of ice, coping with change, a Worksafe and safe food handling courses and you have been working full time as a billet.  All of those things go very much to your credit in this given scenario and give me greater hope that your intentions to rehabilitate at least are genuine.

28Your history is outline in the submissions by your counsel and also in the report of Mr Cummins.  I am certainly aware of the authority in relation to sentencing people with very, very damaging backgrounds.  You were born into a family of violence.  Your natural father was an extremely violent man and you still bear emotional scars, at least, of that.  You watched violence towards your mother, you suffered violence towards yourself.  Your mother, as I understand, has been married something like four times.  The first of the stepfathers was violent to you as well.

29I do not have to go into all the detail because I direct that the report remain on file, but it seems clear that each of your natural parents have had very significant mental health issues and you have been brought up bearing the brunt of all of that.

30Your schooling was sporadic.  You were shifted around at various points in time.  You went into Berry Street Care Facility when you were about 14 and it was around about that time that you started smoking cannabis and by 17 or 18, you were using ice.  As a child, you received very little attention in terms of psychological assessment other than you were determined to be ADHD and spent a significant period of time on dexamphetamine.  You are certainly not the first person to come before these courts with an ice addiction who, as a child, was on dexamphetamine.

31In the time leading up to this offending, you had been using ice on a very regular basis for about 18 months.  It is clear, as I have said, from your criminal history in what has been described to me that you have had periods where you have not used and accordingly, you have not offended.

32The family structure, I do not think needs to be gone into.  There is difficulties between you and other siblings.  One sister, you apparently get on well with and she has in fact visited you in gaol a couple of times.  Again, I do not propose to go through the sordid detail of various relationships other than to say that you do have a two and a half year old child who you purport to wish to have contact with.  That child currently being in foster care.  You have told your counsel that having supervised access with that child is about the only point which you have ever been able to really commit to.

33You have had community based dispositions in the past and it would appear, mainly, through an inability to commit as they have been breached.  However, the dispositions imposed upon those breaches is not severe and it is just part and parcel of a chaotic, emotionally and physically affected drug dependent existence.  Mr Cummins regarded you of being of low average intelligence.  Here, I have noted, as I said to your counsel that what you have said to him and the instructions which were given which seem to show that you have an insight into what your problems are and an insight now, at least, into what the effect of using ice has upon you.

34You do not have an antisocial personality disorder or antisocial personality style, which again gives me more confidence in terms of your prospects for rehabilitation.  Despite was initially a submission to the contrary, I do not think that the principles of Verdins really apply here.  I think you are probably one of those people who a period of enforced non-use of drugs and a structured environment with the opportunity to work will probably have benefitted from it.

35I take all those matters into account.  The risk of you reoffending is really up to yourself, the chances of you staying alive are probably pretty much up to yourself too, bearing in mind the drug use in the past.

36I am going to, as I said, give you a custodial sentence with a significant opportunity for parole and these sentencing remarks, together with all the documentation that has been put before me will be sent to the parole board.  However, having said all that, it is serious offending and it is the sort of offending that these days, the community is becoming far more aware of and far more desirous of appropriate punishment for it.  I will indicate that I have, insofar as fitting of a minimum term is concerned, your plea of guilty has played a significant part in that as you have got the matter over with and, as I said, have not put the victims, at least, through the ordeal of a trial.

37In any event, taking all those matters into account, you are sentenced as follows.  For what I consider to be a nasty example of aggravated burglary, 22 months.  Criminal damage, three months.  Common assault, six months.  Common assault, six months.  Persistent contravention, six months.  Insofar as the summary matters are concerned, and this is where it gets difficult, but the assault, which only carries three months, I will give you one month.  One month on the committing an indictable offence whilst on bail and one month on the breach intensive corrections order.

38On the indictment, one month of the sentence imposed on the criminal damage, two months of the sentence imposed on each of the common assaults, and two months of the persistent contravention are to be served cumulatively upon each other and upon the sentence imposed upon the aggravated burglary.  That gives a sentence on the indictment of 29 months.  The summary matters, I direct that the one month for the summary assault be served cumulatively upon the indictment matters and the other two be served concurrently.  That is the way I am expressing it as clearly as I can bearing in mind that then there is no cumulative provisions for those, it is for the others, which makes it all a little difficult.

39In any event, by my mathematical calculations, that is a head sentence of two years and six months. In all of these circumstances, I direct that you serve a minimum term of 15 months before becoming eligible for parole. I direct that 288 days be reckoned as having been served under this sentence and just so that you realise the benefit of your having pleaded guilty, I will tell you that pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of four years with a minimum term of something in the order of two years.

40There are no other orders I have to make?

41MS SEDGWICK:  No, Your Honour.

42HIS HONOUR:  Thank you for that.

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