Director of Public Prosecutions v Stewart

[2014] VCC 954

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02318

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCIS STEWART

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2014
DATE OF SENTENCE:	12 June 2014
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2014] VCC 954

REASONS FOR SENTENCE
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Subject: Criminal law; sentence
Catchwords: Pleaded guilty  - 1 charge aggravated burglary, 1 charge recklessly cause injury – accused entered house where girlfriend visiting – she hit him following verbal abuse – he and co-accused struck her causing minor injuries – all intoxicated – accused from extremely  dysfunctional background – long term drug and alcohol abuse – serious mental health problems  - homeless since teenage years – stable accommodation in last 2 years – stable relationship – on-going counselling – no recent offending – no violent prior criminal history.
Sentence:  CCO 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	OPP
For the Accused	Mr B. Johnston	VLA

HER HONOUR: 

1Francis Stewart, you have pleaded guilty to one charge of aggravated burglary and one charge of causing injury recklessly.  The maximum penalties for these charges are prison terms of 25 years and five years respectively.  Yesterday I sentenced the co-accused Yates and, because circumstances required your absence yesterday afternoon, as you know, I was not able to proceed to have you assessed and to sentence you.  Accordingly some of my sentencing remarks, which will shortly follow, are a repetition of what I said yesterday in sentencing Mr Yates.

2These events occurred on 19 September 2012 at a house in Heidelberg occupied by Brenton Hopkins near your home.  You had spent several hours drinking with the co‑accused, Joshua Yates and Joel Collins and with your partner, the victim in this matter.  She had left the house and gone to visit Hopkins and had remained there for several hours.  Soon after midnight, you and Collins went to find her and bring her home.  You banged on the door and kicked it and shouted abuse at the victim.  You were told to go away and, after further abusing her, you left. 

3A neighbour called the police and, before they arrived, you returned with the other co-accused, Joshua Yates, in the car.  Yates and Collins went to the back of the house, where Collins reached through a window and unlocked the back door.  They entered the house and Yates told Hopkins he was going to kill him.  Hopkins ran through the house and out the front door, whereupon you entered the house via the open front door. 

4In the house, the victim told you all to get out and hit you and Yates, pushing you towards the front door.  You and Yates both hit the victim, causing her nose to bleed and knocking her against a wall and to the ground.  Collins told you and Yates to take it easy, as the police would be coming.  Indeed, another neighbour had also called the police and they arrived, flagged down by Hopkins, who was in the street.  The police saw you at the front door with the victim yelling at you to get out of the house.  They told you to get on the ground and you complied and were arrested.

5You and Yates were taken to the police station and Collins was arrested a few hours later.  The victim was taken to a doctor, who noted several areas of swelling and bruising to her face and head.  There were also minor lacerations to her lip and ear.  She reported tenderness to her nose and obviously the other injuries would have caused her pain as well, but fortunately none of her injuries required treatment.  She has written a letter to the court in which she explained that she was drunk, as you all were, and that she pushed and hit you, trying to get you to go and leave her alone.  I shall return to the contents of her letter later in these sentencing remarks.

6When interviewed, you told the police that you had been drinking all day with Yates and the victim and, when she went to Hopkins' house and did not return after some time, you went there to find out what was going on.  You said you yelled out to her to come outside and you banged on the front door and window, but there was no response, so you went home.  You then decided to return with Yates, thinking that Hopkins and the victim must have fallen asleep and that you would wake them up.  On your return, you did not see Collins and Yates enter the house at the rear and, as I said before, you entered via the open front door.

7You told the victim you had been waiting for her and begged her to come home.  When you heard the other co-accused argue with Hopkins, you also heard her beginning to be "fiery", as you put it, towards you and you decided to leave.  You told police that you do not remember her trying to push Collins out and you said you did not assault her.  You described her to the police as a "total drunk, thief and liar".  You were remanded in custody and held for 14 days until your release on bail.

8Initially you and Yates pleaded guilty to charges of aggravated burglary and intentionally causing injury but later changed your pleas and the matter was to go to trial on 24 February this year.  On 21 February it resolved into a plea to charges of aggravated burglary and recklessly causing injury.

9As I said to Mr Yates yesterday, because the ultimate plea of guilty was to a lesser charge, you are entitled to have the plea entered on 21 February regarded as having been entered at the earliest reasonable time.  It avoided the expense and inconvenience of a trial and assisted in the progress of the case.  Because of the circumstances of the initial plea, followed by a change of plea and the case being set down for trial, there was a considerable delay.  But that is not to be attributed to any one party and it is taken into account as meaning the case was hanging over your head for a considerable time.

10Those are matters I take into account, as well as the fact that your plea is an indication of remorse.  You have also expressed your remorse to Ms Warren, the psychologist who assessed you in February 2013. 

11Your personal circumstances are that you come from an extremely dysfunctional family background, exposed to violence at home in the context of your parents and, later your stepfather, being heavy users of alcohol and drugs.  At an early age you won a scholarship to Cathedral College in East Melbourne for the last two years of primary school and then commenced your secondary education at a local high school.  Your father played little part in your early life and died in a car accident when you were about ten.  When you were 13, your stepfather died - in your arms, as you reported it - and your mother blamed you for his death.

12From the age of 14, you were homeless and, despite that, managed to complete year 10 at school whilst living in hostel and other accommodation.  You were regarded as a well-behaved student but found school a struggle because of your circumstances.  Recent testing has shown you are of high‑average intellect and clearly capable of undertaking post-secondary or tertiary education, but that opportunity has not been available for you.  You remained in a homeless state for many years, using alcohol and various drugs and medications over a long period.

13In November 2011 you were approached by the managers of a housing program as part of a survey of homeless people.  You were assessed as being very vulnerable, and therefore eligible for intensive support, which was provided for you.  Through these means, your present Ministry of Housing premises was obtained for you in 2012, just before the offending occurred.  At around the same time, you referred yourself to a counselling service at Banyule Community Health Centre and reports from both the counsellors you saw there have been provided, with the most recent report from clinical psychologist Jo Hutton revealing a complex set of difficulties.

14You are still engaging with that service and being prescribed methadone at a fairly high dosage.  The writer noted your marked decreased substance use, which, in view of your use of substances as a long-term coping strategy, is regarded by her as very impressive.  A medical practitioner at the Banyule Centre has recently diagnosed that, in addition to poly-substance abuse, you suffer from paranoid schizophrenia, although that diagnosis appears to be expressed as a provisional diagnosis.  But in any event, you are prescribed the medication Risperidone for that condition.  Also diagnosed was post-traumatic stress disorder. 

15You have also suffered from a serious physical health problem in the form of a gastric reflux condition, requiring surgery some years ago and leaving residual gastric problems.  You also suffer from hepatitis C. 

16Whilst the offences you committed are serious and warrant a sentence which firmly reflects the need for general deterrence, the circumstances of this case must be carefully considered.  Mr Johnston of counsel, who appeared on your behalf, submitted that you have never before committed a similar offence whilst intoxicated and so your intoxication on this occasion was not an aggravating factor.  All of the participants were drunk, something which the victim conceded in her letter to the court, and it seems the two of you have had a volatile relationship in the past, demonstrated by the existence of an intervention order.  Those circumstances do not exculpate you but perhaps provide some explanation for otherwise indefensible and antisocial behaviour. 

17You entered the house through the front door, which was open, and you had often been to the house before.  On the other hand, you knew from having being there a short time earlier that you were not welcome and yet you persisted.

18Your personal circumstances and reasonably good - although guarded - prospects for rehabilitation warrant some considerable leniency in the sentence to be imposed.  You have demonstrated some insight into your offending and its causes by seeking treatment voluntarily, and you have responded well to the improved living circumstances made possible through the housing service.  You appreciate the benefits it has brought and you have not offended again during the 20 months since the offences, despite the stress caused by the threat of imprisonment.  You are still living with the victim who has described your relationship as a loving and supporting one and she is now expecting a baby.  That was the reason for your absence yesterday afternoon, to attend a  medical appointment.

19Please stand, Mr Stewart. 

20You have been assessed as suitable for a community corrections order, which will commence today, and last for two years and you will be under supervision for that time.  You must submit for assessment and any necessary treatment for drug and alcohol abuse and for any appropriate psychological treatment in view of your background and the various diagnoses.  You will not be required to undertake any unpaid community work, because the priority will be for you to attend all the appointments and programs that are arranged for you.

21I am told by the writer of the assessment report that the issue of employment for you in the future will be addressed through supervision and case management.  

22You must report to the Corrections Office at 81 Burgundy Street, Heidelberg before 4 pm on Monday, so you have got all of tomorrow and Monday before four o'clock to get there.

23The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained from you.  You do not oppose that and I make that order.  I must also advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

24If you had pleaded not guilty to these charges, I would have sentenced you to a community corrections order for three years and I would have required you to perform 100 hours of unpaid community work as well

25Mr Albert if there is anything I have omitted?

26MR ALBERT:  No, Your Honour.

27HER HONOUR:  All right.  Mr Johnston?

28MR JOHNSTON:  No, Your Honour.

29HER HONOUR:  The order is ready for signature.  Mr Johnston, you might want to have a quick look at it before he signs it.

30MR JOHNSTON:  If I may approach.  As Your Honour pleases.

31HER HONOUR:  That completes everything.  Thank you.

32MR JOHNSTON:  As Your Honour pleases.

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