Director of Public Prosecutions v Sutcliffe
[2013] VCC 2192
•15 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02300
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDAN JOHN SUTCLIFFE |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2013 | |
DATE OF SENTENCE: | 15 February 2013 | |
CASE MAY BE CITED AS: | DPP v Sutcliffe | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2192 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Common law assault – Recklessly cause serious injury – False imprisonment – Burglary – Theft – Attempt to pervert the course of justice – Summary offences – Relevant criminal history – History drug abuse
Cases Cited:R v Buscema [2011] VSC 206; DPP v Kane Glen Johnson [2011] VSCA 288
Sentence:Total Effective Sentence 5 years and 3 months’ imprisonment with 3 years’ and 4 months’ imprisonment non-parole period – s.6AAA Sentencing Act 1991 declaration – 233 days pre-sentence detention declared
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Sharp with Ms S. Enthall | Solicitor for Office Public Prosecutions |
| For the Accused | Mr R. Rattray | Slades & Parsons |
HER HONOUR:
1 Edan John Sutcliffe, you have pleaded guilty to one charge of each of the following offences:
2 Common law assault, which carries a maximum penalty of five years' imprisonment; recklessly causing serious injury, which has a maximum penalty of 15 years' imprisonment; false imprisonment, which has a maximum penalty of ten years' imprisonment; burglary and theft, each of which has a maximum penalty of ten years' imprisonment; escape from custody, which has a maximum penalty of five years' imprisonment; and attempt to pervert the course of justice, which has a maximum penalty of 25 years' imprisonment.
3 Further, you have pleaded guilty to a number of summary offences; namely, four charges of contravening a family violence intervention order and three charges of entering a private place without lawful authority or excuse. The first mentioned summary charge attracts a maximum penalty of two years' imprisonment and the second offence referred to attracts a maximum penalty of six months' imprisonment.
4 By way of background, I was told that you and the victim in relation to a number of the charges, Rebecca Hall, met in about 2004 and since 2006 you had been in and out of a relationship. Since 2008, there have been five intervention orders against you which were made in favour of Ms Hall.
5 On 11 July 2011, Ms Hall took out an intervention order against you. The order expired on 1 April 2012. That order provided (amongst other things) that you must not:
(a)Commit family violence against Rebecca Hall;
(b)Contact or communicate with Rebecca Hall by any means;
(c)Approach or remain within 5 metres of Rebecca Hall; or
(d)Go to or remain within 200 metres of Rebecca Hall’s residence, being 6 Tilbury Court, Cranbourne.
6 On 7 June 2012, Ms Hall took out another intervention order against you. That intervention order expires on 6 June 2017 and included the same four prohibitions as the 2011 intervention order.
7 I was told by the learned prosecutor that you were arrested and released on bail in relation to other matters pertaining to the same victim on 12 July 2011. These were referred to as the “2011 matters” in the course of the plea hearing. On 7 June 2012, at the Dandenong Magistrates’ Court, you were sentenced in relation to those matters, receiving six months' imprisonment, three months of which was suspended for a period of 12 months.
8 In relation to the matters on the indictment before me, I was told that you pleaded to these charges following a committal hearing.
9 The indictment and summary charges can be divided into four particular episodes of offending on your part:
(i)Firstly, the charges which relate to your offending against Rebecca Hall between 6 and 8 February 2012, including breaches of the 2011 intervention order, trespass, common law assault, recklessly causing serious injury and false imprisonment. These are Charges 1, 2 and 3 on the indictment and Summary Charges 1, 2, 7, 17 and 18. The learned prosecutor referred to these charges as the “February charges”.
(ii)Secondly, charges relating to your arrest, being Charge 6 on indictment and Summary Charges 13 and 16, referred to as “the arrest charges”.
(iii)Thirdly, charges relating to the letter you wrote to Ms Hall in a bid to have her withdraw her statement, giving rise to the attempt to pervert the course of justice and a further summary charge of breaching an intervention order, being the 2012 intervention order. These charges were referred to as “the attempt to pervert charges”.
(iv)Fourthly, charges relating to an unrelated burglary and theft, being Charges 4 and 5 on the indictment.
10 I was assisted with a chronology of charges and other matters said to be related which was attached to the opening – see Appendix A attached to these remarks.
11 In relation to “the February charges”, I was told that at about 11.00 pm on 6 February 2012, you entered Ms Hall’s house at 6 Tilbury Court, Cranbourne. It is not known how you were able to do this. Ms Hall was in bed asleep at the time. She awoke to find you standing at the end of her bed. You wanted her to accompany you to Hallam to drop off a trailer. When she refused, you called her a “whore and a slut”, then left. This gives rise to Summary Charge 1, contravening a family violence intervention order.
12 At about 2.00 am on 7 February 2012 – therefore, about three hours later – you again entered Ms Hall’s house. She was in bed and awoke to find you standing in her room. You again demanded that she accompany you to Hallam. Out of fear, she agreed to go with you. Ms Hall then returned to her premises at about 4.00 am that same day along with yourself and you then left.
13 At about 8.30 am that same day, the victim had a locksmith attend her home to change the locks. However, at about 8.45 am, you entered the premises yet again and made a cup of coffee, then left.
14 That evening, at about 10.00 pm, Ms Hall went to bed and awoke at some point to find you yet again having returned to her house, being the third time that day. She awoke to find you standing over her bed, yelling. You left through a sliding door and went over the back fence. Ms Hall then locked the doors and put pieces of wood across the windows and doors to make the premises more secure. She then returned to bed and went back to sleep.
15
Subsequently, Ms Hall woke again to find you in her bedroom, so this is the fourth time that you breached the intervention order on 7 February 2012, but I note that the first time that you breached the order was late at night on the
6 February 2012. On this fourth occasion on 7 February, you were yelling at her about running out of petrol and said “This is it.” You left the room and returned with a red plastic jerry can containing petrol. You threw the jerry can at Ms Hall and petrol went over her, the bed and bedding. I do not sentence you on the basis that you deliberately threw petrol at Ms Hall, but I sentence you on the basis that you threw the petrol receptacle at her, reckless as to whether petrol came out or not. Having done this, you yelled and screamed at the victim once more then left the premises.
16 Ms Hall slept on a mattress in the dining room because of the petrol over her bedding.
17 As I understand the position, the throwing of the jerry can is the basis for the common law assault, being Charge 1 on the indictment, and your repeated attendances at the house on 7 February 2012, give rise to Summary Charge 2, contravening a family violence intervention order, and also Summary Charge 17, being trespass.
18 On 8 February 2012, being the day after you assaulted the complainant and repeatedly contravened the family violence intervention order, you again attended Ms Hall’s premises. This happened some time in the afternoon of 8 February 2012. Ms Hall again awoke to find you in the house, yelling and screaming at her. You grabbed her by the hair and punched her in the face. She was bleeding and blood went on the mattress. Ms Hall grabbed her handbag and tried to leave through the front door. You grabbed her by the hair and dragged her back inside and kept punching her. Ms Hall begged you to let her go and promised not to call the police. You told her to “shut the fuck up”. This conduct gives rise to Charge 2, recklessly causing serious injury as well as Summary Charge 7, contravening a family violence intervention order and Charge 18, trespass.
19 You remained in the house for the rest of the afternoon, which gives rise to Charge 3 on the indictment, false imprisonment.
20 At about 9.00 pm that day, Ms Hall convinced you to go to a hotel to buy a drink from the bottle shop. Ms Hall took a pillow case with her when she left the house, which she held against her face to stop blood coming from her mouth. You bought three cans of “Woodstock” (a mixed alcoholic drink as I understand it) with money given to you by Ms Hall. You gave her change and two of the cans, then left her, walking away.
21 Two passersby came to Ms Hall’s assistance, calling an ambulance which took her to Casey Hospital.
22 As at result of the attack, Ms Hall complained of severe pain around her mouth, face and head and chunks of her hair were pulled out. I have viewed photographs of Ms Hall’s injuries which were tendered on the plea. When examined by a doctor, Ms Hall had the following injuries:
(a)A very tender left jaw;
(b)One tooth missing in her maxilla;
(c)A cut lip which was not actively bleeding, as well as bruises on the chin; and
(d)A bruised right knee.
23 Subsequent X‑ray and further examination revealed a fracture at the upper ramus of the mandible on the left with slight displacement which involved the tooth socket. She was referred to Dandenong Hospital for further management.
24 Subsequent examination of the X-ray and orthonopantogram (“OPG”) confirmed that Ms Hall sustained a fractured jaw which was described as a “non full thickness oblique fracture”.
25 In a record of interview with police on 28 March 2012 you admitted some aspects of the February charges.
The arrest charges
26 On 28 March 2012, an off-duty police officer noted that a Mercedes van was at the victim’s address and suspected that the van belonged to you.
27 Police officers attended at the complainant’s premises and spoke with a Zenon Kwalil. Kwalil appeared to be rather agitated and denied having seen you. However, police suspected that you were inside the house and conducted a search of it. They found you hiding under a bike and mattress in the corner of a bedroom. You were arrested, handcuffed and taken from the house towards the police car.
28 A Constable Banfield conducted a pat down search of you and as he reached to open the door to the police car, you ran off. You ran straight into the path of the off-duty police officer, who had reported seeing your car at the premises.
29 Subsequently you were interviewed, charged and remanded. In the course of the interview you made admissions to the escape.
Attempt to pervert charges
30 Between June and July 2012, you wrote a number of letters to Ms Hall, in contravention of the 2012 intervention order.
31 In one of the letters, you asked Ms Hall to withdraw the charges and said that she could do this by going to see a solicitor and not to let “them” tell her that she cannot drop the charges. In this letter, you wrote:
(a)“Please can you drop the last lot of charges?”
(b)“I don’t know what else to say – can you write and let me know something. I could get out or be sentenced to a rehab if you drop charge.”
(c)“Please retract your statement – ring Philip at Melb – he will tell you how you can go about it please. If you cared like you always said, please you will help me again. I'll let you move on unless you want different.”
(d)“If you will help, don’t let them tell you, you can’t – tell them that you want them dropped – they have to – please help me. I'm sorry.”
32 I should say that I have not directly reproduced the spelling or shorthand that you used in the letter in my sentencing reasons and I have added punctuation in order to reflect the sense of extracts from the letter relied on by the Crown.
Burglary and theft
33 On 15 March 2012, you went to 51 Majestic Boulevard, Cranbourne. You entered the garage where two cars were parked. You took an iPhone3 from one of the cars. You then unsuccessfully tried to jemmy open the laundry door on the south side of the house. You were captured on closed-circuit surveillance footage in the garage. Police obtained still shots from the footage and identified you. These matters are not related to the other matters.
34 Your conduct, especially insofar as it relates to Ms Hall, is deserving of significant punishment and must be denounced. Further, you committed all of the offences whilst on bail, having been charged with similar offences against Ms Hall in mid-2011.
35 The matters for which you were on bail at the time that you committed the offences for which I now sentence you are as follows.
36 On 15 June 2011, you breached an intervention order and assaulted the very same victim. On 28 June 2011, you committed a further breach of an intervention order. On 12 July 2011, you breached an intervention order pertaining to Ms Hall and broke a window at her premises, giving rise to a charge of criminal damage. On 9 August 2011, you again breached an intervention order relating to Ms Hall and committed the offence of recklessly causing injury where Ms Hall was the victim.
37 The fact that you committed further offences whilst on bail is an aggravating feature. This is especially so as you chose to commit further offences of a similar nature against Ms Hall.
38 Your attacks upon Ms Hall for which I now sentence you, were entirely unprovoked, perpetrated in the sanctity of her own home where she was entitled to feel safe. You chose to perpetrate violence upon and instil fear in a vulnerable and defenceless victim. Your behaviour toward Ms Hall was cowardly and shameful. You exhibited flagrant contempt toward her, as you did in respect of the law – in particular, the intervention orders which had been made against you.
39 Further, although not the worst example of attempting to pervert the course of justice, your decision to write to the complainant in a bid to have her drop the charges against you, again shows your disregard for her and for the law itself.
40 Whilst you were affected by drugs or drug addiction at the time that you committed the offences, this does not impact on your moral culpability in relation to each of the offences, which I regard as high.
41 You have a most lengthy criminal history dating back to 1986, comprising a significant number of dishonesty charges, driving charges and some charges concerning violence. Insofar as violent prior offending is concerned, you received fines in March 1987 for assault causing injury and criminal damage. In May 1998, you received a sentence of 45 days which was suspended for two years in respect of a charge of intentionally or recklessly cause injury. In June 1998, you were sentenced to one month’s imprisonment which was said to be concurrent and which was wholly suspended for 12 months. On 7 December 1999 at the Moe Magistrates Court, both sentences were breached and the suspended term was restored due to further offences which included the following.
42 Three charges of breaching an intervention order;
43 One charge of making threat to kill;
44 One charge of recklessly causing serious injury;
45 One charge of assault by kicking;
46 Intentionally damage property;
47 Two charges of failing to answer bail;
48 A further charge of breaching an intervention order; and
49 Two charges of recklessly causing injury.
50 On 9 February 2001, you were sentenced to one month’s imprisonment in relation to stalking and breaching an intervention order. Following these, you continued to commit offences between various gaol terms which you were required to serve. However, there does not appear to be a further conviction for violence against a person as such – although on 25 March 2009, you were convicted of reckless conduct endangering serious injury, which appears to have been related to poor driving when one views some of the matters dealt with on that occasion.
51 I make it clear that I do not treat as a prior conviction, the matters for which you were dealt with at the Dandenong Magistrates’ Court on 7 June 2012. However, these are relevant when assessing your prospects of rehabilitation and the weight which I need to place on specific deterrence and protection of the community. Your criminal history is a most concerning one, especially in light of the fact that some of the dispositions imposed involved drug treatment orders, all of which have apparently been unsuccessful. Your offending on the occasions in question before me took place in the context of you being addicted to methylamphetamine which you had “progressed to" in the months leading to your offending. Before this, you were addicted to other substances to which I will refer in due course.
52 I was told that Ms Hall was offered the chance to make a Victim Impact Statement but declined to do so. However, it is readily apparent that she suffered significant pain when you inflicted serious injury upon her, and it is not difficult to imagine that your sudden appearances at the premises accompanied by verbal and on occasion physical abuse, would have been most frightening for her.
53 I was told that you were always willing to plead guilty to the charges for which I now sentence you, save perhaps for the false imprisonment. I was told that the major focus at committal when the complainant was cross-examined, related to charges which were subsequently withdrawn. Further, the charges in respect of the letters which you sent were not served until the morning of the committal hearing which then needed to be addressed in cross-examination. However, you were prepared to plead guilty to the charges before me and in the circumstances I am prepared to allow for a not insignificant discount in the sentence that you would otherwise receive, notwithstanding that the complainant was subjected to cross-examination.
54 I should add that there was also some contention in respect of what would comprise the serious injury, but at all times, you were prepared to take responsibility for inflicting serious injury upon the complainant.
55 In pleading guilty you have saved the witnesses, particularly the complainant, the time and trauma of giving evidence at trial and you have saved the community the time and expense of running contested proceedings. I was also told that you were prepared take responsibility for your actions despite the fact that it would have been open to you to conduct a trial, as Ms Hall’s ability to give evidence was somewhat hampered by her own drug abuse. In particular, she had difficulty at the committal hearing with recalling times and places and there may have been fertile ground for discrediting the complainant in respect of some aspects of her evidence. I take these matters into account in sentencing you and in the circumstances I am prepared to find that your pleas of guilty indicate some remorse and a willingness to take responsibility for your actions.
56 I take into account your background. You are now 45 years old and have four children from two relationships. All of your children are girls, with the oldest being 23 and the youngest being seven years old. Three children are from a relationship which you had with a Ms Goodwin, and your youngest child is the product of a relationship with a Ms Seable. I was told that you have recently become a grandfather to a baby girl born to your oldest daughter.
57 Mr Sutcliffe, as a father and grandfather of girls, I would hope that you appreciate that your conduct towards Ms Hall and in the past, towards Ms Goodwin, is no way to treat a female, or anyone else for that matter.
58 You have been on remand since your arrest in relation to the matters before me with the bulk of this time being spent in the general population at Melbourne Remand Centre. You perform daily duties as a groundskeeper there. You were born near Bacchus Marsh and you went to school until you were 15 years old. The last school which you attended was Mount Evelyn Technical College. Your father was physically and emotionally abusive to your mother and to you. You have one sister who is now 40 and you recently learned that your father was abusive towards your sister as well.
59 Your parents separated when you were ten years old and you and your sister remained with your mother who commenced a relationship with a Mr Ray Bedggood soon thereafter. Your family moved into Mr Bedggood’s home where you stayed until you left home at the age of 16. You told your counsel that Mr Bedggood was the best thing that ever happened to your family and you maintain a close relationship with him as well as your mother and sister. You consider these people to be strong social supports. Unfortunately, none of these people attended court at the plea hearing but your counsel advised me that your parents were prepared to accommodate you upon your release from gaol. Further, there were two friends of yours in court who made a similar offer and who are supports for you and are people whom you can look to upon your release from gaol.
60 You had no contact with your father for most of your adult life and you do not enjoy a close relationship with him.
61 You are functionally literate and have a fairly decent work history, working from the age of 15. You have worked as a storeman and driver, including as a truck driver until the age of 28. After this, you operated a car body workshop from your own garage for three years and since you were 31 or 32, you have driven trucks on a contract basis. I was told that at the time of the offending before me, you worked as a driver transporting prefabricated concrete sheets to building sites around metropolitan Melbourne and country Victoria.
62 You instructed your counsel that your employer at that time was a heavy methamphetamine user and through your association with this person, you had ready access to methamphetamine. You instructed your counsel that you were often provided methamphetamine instead of payment. Your use of the substance became so problematic that you had difficulty remembering much of what occurred in the months leading to your arrest and remand for these offences.
63 I was told that you have never had a problem with alcohol but first used cannabis when 16 years old. This quickly developed into a daily habit which lasted until your early 30s. You commenced using amphetamine when you were about 18 years old and your abuse of this substance has been a significant problem in your life. I was told that you began using heroin through your relationship with Ms Seable. Your use of this substance continued until recently and was something which featured in your relationship with Ms Hall.
64 I was told that you had remained abstinent from drugs whilst being in custody and you provided a clean urine screen in relation to a sample which was taken on 28 January 2013. I must say I had some concerns about this particular document as it was not completed or signed, but on balance I am prepared to accept it as evidencing abstinence as at the time the sample was taken. You have also completed a 24 hour drug and alcohol program and a harm reduction program. The fact that you have completed these programs is to your credit. However, in light of your criminal history and other opportunities to overcome your substance abuse, I am afraid that I have some grave concerns about you returning to drug abuse in the future upon your release. I sincerely hope you do not.
65 It appears to me that there is an obvious connection between your drug abuse on the occasion of this offending and the conduct in which you engaged. It also appears that there is a connection between your drug abuse and offending on previous occasions. The Crown did not submit that your decision to abuse drugs on the occasions in question for which I now sentence you was an aggravating feature and I do not sentence you on this basis. However Mr Sutcliffe, I place you on notice that if you choose to abuse drugs in the future and commit further criminal offences, then your decision to abuse drugs on any future occasion may well be seen by a sentencing judge as an aggravating feature of your offending.
66 You have been involved in several relationships over the years. I was told that your relationship with Ms Goodwin ended as a result of your drug use. Intervention orders were put in place towards the end of that relationship which was a relationship that you greatly valued. However, Ms Goodwin was the victim of charges in your criminal history to which I have referred and which were committed in 1998, 1999 and 2001 as I understand it. The offending against Ms Goodwin has a familiar ring to the offending which you perpetrated against Ms Hall. I bear in mind that the last of the offences against Ms Goodwin was in 2001 and that offences in the nature of domestic violence have not been committed by you again until mid-2011 being the time which you committed offences against Ms Hall to which I have previously referred. Therefore, I bear in mind the significant gap in time between offending against Ms Goodwin in a violent fashion and offending against Ms Hall, but I also bear in mind that your behaviour toward Ms Hall has some disturbing features in common with your behaviour toward Ms Goodwin.
67 Such matters are still relevant to the weight I ought to place on protection of the community, specific deterrence and when assessing your prospects of rehabilitation. Of course, in a more general sense, the other prior matters are also relevant and have specific relevance to the charges of burglary and theft for which I must also sentence you.
68 I was told that in about 2004 you reconciled with Ms Goodwin. Although no longer in a relationship, you maintain a close friendship. Your children from that relationship and Ms Goodwin have all visited you whilst you have been in custody.
69 You met Ms Seable through associates who were involved in drugs and Ms Seable was a heavy heroin user. I was told that before you met Ms Seable, you had not used heroin but began using this through associating with her. Unfortunately Ms Seable died of a drug overdose in 2006. You were in custody when this occurred. I was told that there was an intervention order between you and Ms Seable for a period of time. However, it would appear that you did not breach this intervention order.
70 You met Ms Hall in 2006, commencing a relationship with her after being released from gaol following the death of Ms Seable. Your relationship with Ms Hall involved heavy drug use by both of you.
71 Your counsel submitted that there was a duplicity between the summary charges for trespass and corresponding contravention of intervention orders. I do not intend to embark on a lengthy exposition of the law in this regard but suffice to say, in my view, the elements of the charges are different notwithstanding that your conduct in attending the premises gives rise to each of them. The gravamen of breaching the intervention order is that you have breached a court order, whilst the gravamen of committing trespass is that you have entered the complainant’s premises without her authority to do so. However, insofar as these charges are concerned, I do not propose to make orders for cumulation as between them. On the other hand, some cumulation is warranted vis-à-vis the contravention of the intervention orders and other criminal conduct with which you are charged.
72 In light of your significant criminal history and your problems with drug abuse as well as the nature of the offending on the occasion for which I now sentence you, I am afraid I can only rate your prospects of rehabilitation as poor. It is more than apparent that you are able to work hard and effectively if you wish to do so, and the challenge for you upon your release from prison will be to overcome your difficulties with drugs and refrain from committing further offences. If you are not able to do this, Mr Sutcliffe, I am afraid that you face the very real prospect of spending ever increasing periods of time in gaol, if indeed you are able stay alive. You are now 45 years old and any decision to continue abusing substances may well result in you suffering the same sad fate as people like Ms Seable and many other drug users.
73 In considering the seriousness of your offending insofar as attempt to pervert the course of justice is concerned, I have considered the matters set out by Nettle JA in the matter of R v Buscema [2011] VSC 206. While the offence you have committed is serious, especially in light of your recent history with the victim at the time of its commission, I regard your offending as falling at the lower end of the scale. On the other hand, this offence attracts strong weight when it comes to general deterrence which I must also accommodate. I have not been told a great deal at all about the details of the false imprisonment, save that the complainant was apparently detained for a number of hours after she had been assaulted by you. I sentence you on this basis.
74 I do not intend to place every offence on a scale of seriousness, but I have taken into account the circumstances of each of the pieces of conduct in assessing the objective seriousness of your offending.
75 In all the circumstances, I must place significant weight on specific deterrence and general deterrence and I must place not insignificant weight on the need to protect the community. Your continued and flagrant breaches of intervention orders gives me grave cause for concern. You must appreciate that these orders are to be taken seriously and that failure to do so will result in firm sanction. In that regard I bear in mind the remarks of Neave JA in the matter of DPP v Kane Glen Johnson [2011] VSCA 288 [1 to 9].
76 Upon being invited to do so, the Crown submitted that a sentencing range of between four and a half and six and a half years with a non-parole period of three to four years was appropriate in your case. Your counsel submitted that the range was too high and that the lower end of the range should be regarded as near the top of a sentencing range applicable to you.
77 I have considered the submissions made in respect of current sentencing practice, the references made to sentencing snapshots for recklessly causing serious injury and I have perused recent cases in relation to that particular offence and others. I have also considered the submissions and the sentencing snapshot in relation to breaching or contravening intervention orders. I am also mindful of the principle of totality and submissions made to me concerning cumulation.
78 I bear in mind that you have been in custody for a period of 314 days, having been remanded on these matters on 28 March 2012. Within that time, you served a three month sentence which commenced on 7 June 2012 and ended on 7 September 2012. In relation to the matters before me, you had served 222 days of pre-sentence detention as at the time of the plea hearing. You have now served 233 days. But when considering totality, I have taken into account the number of days you have been in custody overall.
Please stand up, Mr Sutcliffe.79
80 Firstly I make a disposal order sought by the Crown and consented to by you.
81 In relation to the charges on the indictment and the summary charges, you are convicted in relation to each of these and you are sentenced as follows.
Firstly, in relation to the charges on the indictment, you are sentenced to the following terms of imprisonment.82
83 Charge 1 – 6 months' imprisonment. +1m
84 Charge 2 – 4 years' imprisonment – this will be the base sentence.
85 Charge 3 – 6 months' imprisonment.
86 Charge 4 – 8 months' imprisonment. +1m
87 Charge 5 – 2 months' imprisonment.
88 Charge 6 – 3 months' imprisonment.
89 Charge 7 – 10 months' imprisonment. +1m
In relation to the summary charges, you are sentenced as follows:90
91 Charge 1 – 8 months' imprisonment.
92 Charge 2 – 12 months' imprisonment. +6m
93 Charge 7 – 12 months' imprisonment. +4m
94 Charge 13 – 1 month imprisonment.
95 Charge 16 – 12 months' imprisonment. +2m
96 Charge 17 – 1 month imprisonment.
97 Charge 18 – 1 month imprisonment.
98 I direct that one month from the sentences on Charges 1, 4 and 7 on the indictment and that six months from Summary Charge 2, four months from Summary Charge 7 and two months from Summary Charge 16, all be served cumulatively with each other and with the base sentence.
99 This results in a total effective sentence of five years and three months’ imprisonment and I direct that you are to serve three years and four months’ imprisonment before becoming eligible for parole.
100 If not for your pleas of guilty I would have sentenced you to a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years six months’ imprisonment.
101 I declare that you have already served 233 days in custody in respect of this sentence and note that over and above this you have served 92 days in respect of the other sentence to which I have previously referred from the Dandenong Magistrates' court order.
102 Take a seat thank you. Anything arising?
103 MR RATTRAY: As Your Honour pleases.
104 MS SHARP: There was one short matter Your Honour. In the very early stages of Your Honour's sentence you indicated the charges in relation to
6 to 8 February. I wonder whether I misheard Your Honour in also including Charge 13, Summary Charge 13 in that group of charges? In the very early stages when Your Honour was referring to the charges relating to
6 to 8 February? Your Honour that Summary Charge - - -
105 HER HONOUR: Yes, do you say 13?
106 MS SHARP: Charge 13 relates to the arrest date of 28 March. That's the breach of the intervention order or contravention of the intervention order by being present at the premises where he was arrested. I just wanted to clarify that.
107 HER HONOUR: I have erroneously put that in but I understood that that could be the case.
108 MS SHARP: That is the way Your Honour dealt with it in the body of the sentence. I just wanted to clarify that.
109 HER HONOUR: I am grateful for that. That was a slip and I withdraw that from the sentence, or amend my sentence in that regard. Thanks Madam Prosecutor. Is there anything further?
110 MS SHARP: Not from me Your Honour.
111 MR RATTRAY: No Your Honour.
112 HER HONOUR: Thank you, you can remove the prisoner.
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APPENDIX A
CHRONOLOGY OF RELEVANT EVENTS
| Date | Event | Charge(s) |
| 11 July 2011 | Intervention order made, date of expiry: 1 April 2012. (the 2011 Intervention Order) | |
| 7 June 2012 | SUTCLIFFE arrested, charged and bailed in relation to the 2011 matters. | |
| 6 February 2012 | SUTCLIFFE entered 6 Tilbury Court. | Summary Charge 1: Contravene Family Violence Intervention Order |
| 7 February 2012 | SUTCLIFFE enters 6 Tilbury Court at 2:00am; 8:30am and 10:00pm. SUTCLIFFE throws jerry can with petrol at HALL. | Charge 1: Common Law Assault Summary Charge 2: Contravene Family Violence Intervention Order Summary Charge 17: Trespass |
| 8 February 2012 | SUTCLIFEE enters 6 Tilbury Court, imprisons HALL, and recklessly causes serious injury. | Charge 2: Recklessly causing serious injury Charge 3: False imprisonment Summary Charge 7: Contravene Family Violence Intervention Order Summary Charge 18: Trespass |
| 15 March 2012 | Burglary and theft at Majestic Boulevard | Charge 4: Burglary Charge 5: Theft |
| 28 March 2012 | SUTCLIFFE enters 6 Tilbury Court. SUTCLIFFE arrested and runs from custody before being located and detained. | Charge 6: Escape Summary Charge 13: Trespass |
| 1 April 2012 | 2011 Intervention order expires. | |
| 1 June 2012 | Intervention order made, date of expiry: 6 June 2017 (the 2012 Intervention Order). | |
| 7 June 2012 | SUTCLIFFE sentenced to 6 months imprisonment in relation to the 2011 matters. | |
| June / July 2012 | SUTCLIFFE writes to HALL asking her to withdraw the charges. | Charge 7: Attempt to pervert the course of justice Summary Charge 16: Contravene Family Violence Intervention Order |
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