Director of Public Prosecutions v Stewart

[2019] VCC 2086

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

AT GEELONG
CRIMINAL JURISDICTION

CR-19-01587

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN STEWART

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	11 December 2019
DATE OF SENTENCE:	11 December 2019
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2019] VCC 2086

REASONS FOR SENTENCE
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Subject:

Catchwords:             Sentence – Stalking – Aggravated Burglary – Common Assault – Damaging Property – family violence – significant criminal history involving same complainant – history of drug abuse – no drug use at time of commission of offence – combination sentence not in range – offence involving single episode – totality – some cumulation warranted – denunciation and deterrence paramount

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Office of Public Prosecutions
For the Accused	Mr G. Thexton	Thexton Lawyers

HER HONOUR: 

1Until the end of December 2018, you, Sean Stewart, had been in a relationship with Samantha Finlay[1] for, on the agreed summary of facts, approximately 11 years.  The relationship had come to an end and by May 2019 you were living with your new partner, Jasmine Daniels. That is a relationship which, although I was told you had been in since late-December 2018, must have had previously existed and may have at times run in parallel with or at the same time as your relationship with Ms Finlay.  In any event, it would appear that by May 2019 your relationship with Ms Finlay was long over.

[1]A pseudonym.

2Between 6 May and 13 May 2019, you sent a string of disgracefully abusive text messages to Mr Finlay from your mobile phone.  The language was vile, and you were abusive and threatening to her.  It is not entirely clear from those messages or from their tenor what had so enraged you and led you to embark upon sending the messages but the messages clearly pre-dated what appears to be a new event that occurred on 13 May 2019. 

3On 13 May 2019, you came to believe that your wages had been mistakenly paid by your employer into the bank account of Ms Finlay.  You rang her and told her that that was the case.  She checked her bank account and the wages were not there.  She took a screenshot of the bank statement to show that was the case and tried to send it to you. You were not able to receive it directly from her because you had blocked her as a sender on your phone.  So she arranged for her son to send you the screenshot. You continued to call her and abuse her. You did not accept her word that the wages had not been paid into her account.

4You ended up ringing her and threatening her saying, leaving aside the offensive language, that you were going to get her and that she was lying.  Shortly after that last abusive call, you had an appointment with a drug counselor who you had been required to see as a condition of a community correction order that you had been placed on eight months earlier as a result of a previous episode of family violence directed against Ms Finlay.

5You were heard in the reception area of the drug counselor's rooms to be threatening a female called Samantha on the phone. You left without waiting for your appointment.  Your counselor was so concerned that she rang the police to report the threat and while she was on the phone to the police you sent her a text message which might have indicated you were contemplating self-harm or could have simply indicated that you were no longer going to engage in counselling.  The counselor relayed that information to the 000 operator.

6You drove from the drug counselor's rooms straight to Ms Finlay's home where she was home with her young adult disabled son. She locked herself into her bedroom.  You kicked or forced the security door open and then kicked open the door of her bedroom where she had locked herself in.  You stood over her screaming and demanding the money that you still wrongly believed had been paid into her bank account.  She again told you that she did not have the money and told you that the police were on the way. 

7Her son entered the bedroom and asked you to leave.  He stood between you and Ms Finlay in order to try and protect Ms Finlay.  There was a verbal confrontation between you and the son. You pushed him away and left the bedroom. On the way out you slammed the bedroom door into the wall multiple times.  You then threw a clothes horse, smashed a vase and left the house. You got into your car and drove forwards then backwards, ramming Ms Finlay's car and causing damage to it.  Police arrived soon after and saw the damage that had been done. 

8It is as a result of that that you have pleaded guilty to a charge of stalking, concerning the seven days of vile text messages that you sent to Ms Finlay between 6 and 13 May, aggravated burglary, for breaking into her house, common assault, for standing over Ms Finlay and screaming and demanding your money when she was in the bedroom, and criminal damage, for the damage you caused in the house and to her car. 

9You were arrested a couple of hours later at the home that you shared with your partner and interviewed.  You made full admissions in the interview and were charged and remanded in custody, where you have remained ever since.  You indicated at a very early stage that you intended to plead guilty to the charges and the guilty pleas to these charges were resolved before the first committal mention.   The matter has therefore proceeded by way of a straight hand-up brief and is before this court within six or seven months of the offending occurring. 

10The maximum penalty for the charge of stalking is 10 years' imprisonment, for aggravated burglary, 25 years' imprisonment, for common assault, five years' imprisonment and for damaging property, 10 years' imprisonment. Those maximum sentences themselves are indicators of the seriousness of each of those offences.  These circumstances I have detailed indicate that, so far as the stalking and the aggravated burglary are concerned, they are offences that carry some significant aggravating features.  Whilst the damage to property was minor, the circumstances in which it occurred, that is, after such threatening and abusive behaviour and clearly as a means of showing the physical force that you were capable of exerting, make them more serious than the mere sum of the monetary damage.

11And, again, the common law assault, whilst constituted by screaming and threatening rather than any physical touching was obviously a terrifying experience and not only in the context in which it occurred, but against your background and that of the relationship makes it a more serious offence than otherwise screaming at somebody, whilst they are lying on a bed after you have broken in, might indicate. 

12Ms Finlay read a very powerful and moving victim impact statement.  It was remarkable for its respectful tone throughout and for her ability to acknowledge the good in you and the good in that 10 or 11 year relationship.  What she said and her capacity to express herself in the way she did, her balance in seeing the good in you as well as the bad stands in stark contrast to your appalling behaviour over this week, the truly violent, demeaning language you used to her and about her and the violently angry and threatening messages you sent her and the violence of your threatening behaviour when you broke into the house.  This is something you should reflect on.

13You have, for a person of 48 years of age, a bad criminal history and one that unfortunately has not petered out as you have grown into your mature adult years. You first came before a court in South Australia in 1992 and, on my reading of the 16 pages of criminal history that was presented, you have, in effect, continued on a regular basis to come before courts.  The offences for which you have been dealt with cover a range of offending. There is a range of dishonesty offences throughout that period and an extraordinary number of driving whilst disqualified or whilst suspended.

14There are also a number of drug trafficking offences of sufficient seriousness to warrant terms of imprisonment being imposed and one offence of cultivation of cannabis, again, of sufficient seriousness to warrant the imposition of a term of imprisonment. They do not directly bear on the assessment of the gravity of the offending for which I come to sentence you but are clearly relevant to an assessment of your overall approach to authority and obeying the law, evidence of doing what you want when you want without regard to other people's rights.

15Most disturbingly and more relevantly to the charges that you come before me to be sentenced for, you have a significant number of convictions for offences of violence or making threats or harassment, and at least some of those are for family violence offences. At least the last two of them are for family violence offences relating to Ms Finlay, the victim of these offences.  It is not clear that the two most recent ones in 2015 and 2018 both did relate to Ms Finlay. 

16In the course of your appearances before courts for your criminal offences, you have twice been sentenced to a term of imprisonment which was suspended, once to a term of imprisonment which was directed to be served by way of an intensive correction order and once, in respect of the 2018 family violence offences concerning Ms Finlay, to a community correction order. You have breached each of those sentences and, disturbingly, you were eight months into an 18-month community correction order for those last family violence charges concerning Ms Finlay when you committed these offences against her.

17The 2018 charges were for unlawful assault, intentionally damage property and using a carriage service to harass.  In 2015, in respect of the other acknowledged family violence charges relating to Ms Finlay, you were sentenced to a term of imprisonment of 60 days on a charge of recklessly cause injury and to an aggregate sentence of 30 days on two charges of using a carriage service to menace.  The exact details of the 2018 and 2015 charges are not before me.  I was provided with a remand summary in relation to the 2015 offences and with a LEAP extract in respect of 2018 offences.

18I, as I said in the course of the plea submissions, exercise extreme caution in drawing any inferences adverse to you from the details in those documents because I do not have before me the summaries that were placed before the courts that actually sentenced you.  So, save to recite the charges and the sentences and to note that they are of a similar type to the charges on this occasion, I cannot take any other actual facts or circumstances into account because I do not have sufficient information to do so.

19It is clear however, having regard to that extensive criminal history and what I can take into account in relation to your number of past family violence offences, that subject to considerations personal to you, denunciation, deterrence, both general and specific, and just punishment loom large in the sentencing mix.  I note that there are other charges that, on the face of them could relate to family violence charges of harassment or threatening behaviour occurring in 1999, 2006 and 2007. No details in respect of any of those were placed before me. Save to say they are charges that relate to harassment, threat and assault, I am not able to find that they relate to family violence.

20You have served a number of terms of imprisonment, including the term of imprisonment in 2015 for the family violence against Ms Finlay.  It would therefore appear that your court appearances to date, and the sentencing dispositions to date, specifically in relation to family violence, were not sufficient to deter you from offending against Ms Finlay in the way you did in May 2019. 

21Matters that were relied on to mitigate the sentence otherwise appropriate were these.  First your pleas of guilty, the very early stage at which they were entered and the support for them by the full admissions made in your recorded interview only hours after the offending.  You are clearly entitled to a significant reduction in the sentence otherwise appropriate for the utilitarian value of those guilty pleas and for the acknowledgement and acceptance of responsibility that they convey.

22The next matters relied upon was the sobering effect of the 212 days of pre-sentence detention that you have served and the impact that has had on bringing you to an appreciation that you cannot continue to treat Ms Finlay in the way you have.  It is to be hoped that that 212 days has had a sobering effect on you. But balanced against that must be the fact that you have previously served a term of imprisonment for family violence offences concerning her and that you were under a community correction order for other family violence offences concerning her at the time that you committed this offence.

23The next matter that was relied on, and this too relates to the time you had to reflect whilst on remand, has been the acceptance by you that you and Ms Finlay have moved on, that the relationship between the two of you is over and all outstanding matters relating to retrieval of property or disentangling of bank accounts has been dealt with. It was put on your behalf there is no need for any continued contact. So far as having moved on, it would appear that by May 2019 you had moved on in the sense that you had been separated from Ms Finlay for at least six months and you had been living with Ms Daniels for that time.  So, by May 2019, you already had a new relationship and clearly it had not been sufficient to have you accept that you could not speak to or treat Ms Finlay in the way you did.

24The next matter that was relied upon was the continued support of your partner, Ms Daniels. She has contacted you, I am told, daily whilst you have been in custody, visited you weekly and is not only here today but is standing by you and promises to resume your relationship and return to living together upon your release from custody.

25You were in employment at the time of the offending and I have received a testimonial from your then employer, not only attesting to your good work whilst you were employed by him, but referring to the fact that there is still employment available to you on release. Although that testimonial was written earlier this year, Mr Thexton told me this morning that the offer of employment will remain open to you upon your release.

26The continued support of a partner, a stable home and family and the prospects of employment with an existing employer are clearly positive factors that should count well towards your rehabilitation. However, as I said to Mr Thexton in the course of the plea, all of those factors existed at the time of this offending and unfortunately these did not stop you from offending against Ms Finlay in the way you did. It can only be hoped that you will appreciate those positive factors better in future and actually think consciously about them if you are tempted again to engage in any type of offending, let alone offending against Ms Finlay.

27I was told that you have had a long history of substance abuse, reporting daily cannabis use and also reporting significant amphetamine or methamphetamine use, although the duration of that is hard to work out.  I was told that you had been engaged in counselling pursuant to your community correction order and had reported to your counselor and to the psychologist who assessed you for the purpose of the plea that you had been substance-free, certainly methamphetamine-free, for about six months before the offending.  I was also told that your time in custody has been a time that has permitted you to sober up or to remain sober. Substance abuse was expressly disavowed as a contributing feature to this offending.

28Substance abuse is not a mitigating factor. You do not rely on it to explain the barrage of angry or otherwise out-of-control texts or the other behaviour that you engaged in. But it bodes well for you if you have been able to remain substance-free for 12 months. If you were not substance impaired at the time of the offending, then you have demonstrated an inability to control your temper and your behaviour whether you are impaired by substances or not. In a sense, the fact that you behaved in the out of control way you did against a history of family violence and offences of threats, violence and harassment suggests that something more fundamental than substance abuse is at the root of your threatening, troubling and disturbing behaviour.  In any event, if you have been substance-free for close to 12 months then that does count positively in terms of your prospects for rehabilitation.

29Reliance was placed by Mr Thexton on a psychological report from Dr King. In the course of discussions during the plea, I expressed by concerns and reservations about the report.  In particular, it provided no analysis of your extensive prior convictions and what it did say about them ignored any that were to do with recent family violence and any that were to do with violence against Ms Finlay.  In those circumstances, I do not consider that I can place any weight on that report and I set it aside.

30I note too, as I indicated to Mr Thexton, that it was flagrantly in breach of the practice note in relation to psychological reports and was really not something on which any confidence could be placed. The failure to address the family violence or to do any risk assessment in respect to that is a serious deficiency. 

31It was ultimately submitted by Mr Thexton that, by reason of the breaking of the cycle of the relationship, the sobering effect of being in custody for 212 days, the disentangling of all property matters between you and Ms Finlay and your acceptance that the relationship with Ms Finlay was finally over, you could appropriately be dealt with by way of a combination sentence, in effect, to be sentenced to time served followed by an extensive community correction order. 

32As I said to Mr Thexton in the course of the plea, I was concerned about the absence of any evidence that you would do any better on this occasion to abide by the conditions of a community correction order than you had at the time of this offending and your history of breaching every court order that had given you a chance to remain in the community without being immediately incarcerated compounded that concern. 

33Mr Thexton pointed to the fact that, on this occasion, you had spent that time in custody and that the relationship was over.  Those clearly are differences between this and the past.  However, the fact that you have already done a term of imprisonment for family violence offences concerning Ms Finlay and that did not stop you offending against her and the fact that you were under a CCO with the very conditions that Mr Thexton was suggesting this time at the time of the commission of those offences (continue drug and alcohol treatment, supervision, judicial monitoring and behavioural programs), indicates that no great confidence can be placed in your preparedness to abide by the conditions of a community correction order.

34But more significantly, in my mind, the offending itself, on its own, but more importantly seen against the background of your criminal history generally and your family violence offending concerning Ms Finlay, leads me to the conclusion that a combination sentence which allows for no more than a maximum term of imprisonment of under 12 months together with a community correction order is just not sufficient to mark the seriousness of the offending.  The circumstance of the offending itself and seen against your history, are just too serious.

35In my view, there is a need to properly reflect denunciation and general deterrence in the sentence. Family violence is pernicious and pervasive. It has a terrible effect, not only on the victims but on the community generally. The courts must mark the need for people in relationships to respect the other person in the relationship, to respect their autonomy and to treat them with dignity and respect.

36Men in your position must understand they cannot treat a woman with whom they have been in a relationship in the way you did: using such vile language, making threats, breaking into their home, standing over them, threatening them in front of their children and using the force of destruction of property to show the violence that they capable of without facing serious consequences. They must understand that those who engage in that sort of behaviour will be punished and punished in a way that appropriately reflects the gravity of the offending and the need to denounce it.

37And for you too, clearly, the sentence must reflect specific deterrence. You have not been, unfortunately, deterred by your previous experiences of being charged and sentenced, whether it is to a term of imprisonment or a sentence that allowed you to serve it in the community. In my view, nothing other than a term of imprisonment significantly greater than 12 months is appropriate.

38In assessing the relative seriousness of the offences, I take into account, not just the circumstances as I have detailed them but also the maximum penalties for the various offences and your prior history.  Whilst appreciating that the offending is part of an overall episode and therefore totality is an important consideration, nonetheless there must be in my view a degree of cumulation between the different offences because they reflect different behaviours in that overall scheme of offending. 

39I have made allowance for your release upon parole should the parole authorities determine that that is appropriate. I urge you to engage in such programs as are available to you in custody in relation to substance abuse but most importantly in relation to respectful relationships and managing your anger so that you can maximise your prospects of being released into the community on parole, with the support and encouragement that that can provide in the often difficult period of release from custody back into the community. In my view, release on parole is a very important part of encouraging your rehabilitation and protecting Ms Finlay, any other women you have a relationship with and the community generally. So too is providing you with access to programs before release on parole.

40Could you now please stand.  On the four charges to which you have pleaded guilty, you are convicted.  On the charge of stalking, you are sentenced to be imprisoned for a period of 12 months.  On the charge of aggravated burglary, you are sentenced to be imprisoned for a period of two years.  That is the base sentence. On the charge of common assault, you are sentenced to be imprisoned for a period of six months. And on the charge of damage to property, you are sentenced to be imprisoned for a period of three months.

41I direct that six months of the sentence on Charge 1, three months of the sentence on Charge 3 and the whole of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence for aggravated burglary.  That makes a total effective sentence of three years' imprisonment and I direct that you serve two years before being eligible for parole.  I declare that you have spent 212 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

42Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of five years and fixed a period of four years as the time that you would have been required to serve before being eligible for parole.  Can you please remove Mr Stewart.

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