Director of Public Prosecutions v Swanson
[2023] VCC 1742
•26 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-23-01136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE SWANSON |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2023 | |
DATE OF SENTENCE: | 26 September 2023 | |
CASE MAY BE CITED AS: | DPP v Swanson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1742 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty following sentence indication – causing injury recklessly – make threat to damage property – criminal damage – make threat to kill – use carriage service to menace – related summary offences – offending against former intimate partner – offending over the course of several hours – history of alcohol dependency and substance abuse– relevant criminal history – early plea of guilty – dysfunctional upbringing – presently unable to conclude prospects of rehabilitation positive –– sentencing principles for family violence offences - general deterrence, denunciation and community protection paramount sentencing considerations
Legislation Cited: Crimes Act 1958 (Vic); Criminal Code Act 1995 (Cth); Summary Offences Act 1966 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Skeates (a pseudonym) v the King [2023] VSCA 226; Worboyes v The Queen [2021] VSCA 169; DPP v Swanson [2012] VCC 828; Wheldon v The Queen [2011] VSCA 83;
Sentence: 22 months’ imprisonment with a non-parole period of 16 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering (plea) Mr R. Hammill (sentence) | Office of Public Prosecutions |
| For the Accused | Ms H. Whalley | SKLQ Lawyers |
HER HONOUR:
1Kane Swanson, following a sentence indication given by me, you have pleaded guilty to the following indictable offences:
a) one charge of causing injury recklessly contrary to s 18 of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is 5 years' imprisonment;
b) one charge of making a threat to damage property contrary to s 198 of the Act, the maximum penalty for which is 5 years' imprisonment;
c) one charge of damaging property contrary to s 197 of the Act, the maximum penalty for which is 10 years' imprisonment;
d) one charge of making a threat to kill, contrary to s 20 of the Act, the maximum penalty for which is 10 years' imprisonment;
e) one charge of making a threat to destroy property contrary to s 198 of the Act, the maximum penalty for which is 5 years' imprisonment; and
f) one charge of using a carriage service to menace contrary to s 474.17 of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 3 years' imprisonment.
2You have also pleaded guilty to the following related summary offences:
a) one charge of wilful damage (summary Charge 2), contrary to s 9(1)(c) of the Summary Offences Act 1966 (‘SOA’), the maximum penalty for which is 6 months’ imprisonment; and
b) three charges of unlawful assault (summary Charges 3, 6 and 11) contrary to s 23 of that Act, the maximum penalty for which is 3 months' imprisonment;
c) one charge of assault with a weapon (summary Charge 10) contrary to s 24(2) of that Act, the maximum penalty for which is 2 years' imprisonment; and
d) one charge of committing an indictable offence while on bail (summary Charge 17) contrary to s 30B of the Bail Act 1977, the maximum penalty for which is 3 months' imprisonment.
3The charges arise from the events of 5 July 2022. The victim of your offending is your former intimate partner. You had been in a relationship with the victim for approximately one year. The victim has two children from a previous relationship. At the time of this offending, the victim lived with her parents in Noble Park together with her son and daughter, aged nine and three.
4You were born in October 1989 and were 32 years old at this time. You have admitted a prior criminal history.
Summary of Offending
5The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 17 July 2023, which is the agreed basis upon which you are to be sentenced.
First incident
6On 5 July 2022, the victim collected you from your home in North Melbourne, and drove you to her parents' house in Noble Park.
7Later that afternoon, the two of you drove to the local bottle shop, where you argued with another male, before returning to the car. You then accompanied the victim to collect her son from childcare, before returning to her house.
8Back at the house, the victim saw that you were becoming agitated, so she decided to drive you back to the train station. In the car, you became more aggressive; yelling at the victim and hitting the dashboard and passenger side door of the car.
9The victim stopped the car close to the train station, and asked you to get out. In response to this, you slapped the victim to the face (summary Charge 3 – unlawful assault). The victim then punched you to the face. You slapped the victim again and grabbed her hair. As you pulled her hair, you ripped an earring out of her left ear. This conduct also forms part of summary Charge 3 – unlawful assault.
).You broke the victim's glasses when you slapped her (summary Charge 2 – wilful damage).10The victim then dropped you at the train station, and you returned to your home in North Melbourne.
Second incident
11At approximately 7:30 pm that evening, you returned to the victim's home; knocking loudly on the front door and yelling for her to come out. The victim came out of the house and you demanded she return your mobile phone which you had left in her car earlier.
12Then, without provocation, you grabbed the victim by the throat and pushed her back into the side mirror of the car. You squeezed her throat tightly, causing her pain and difficulty breathing (Charge 1 – recklessly causing injury). You are charged with committing this offence while you were on bail (summary Charge 17 – commit indictable offence whilst on bail).
13You then threatened to damage her father's car and motorcycle. The victim's father heard the threats from inside the house and came outside. At this point, you took a hammer from your backpack and continued to make threats to damage the car and motorcycle (Charge 2 – threat to damage property).
14While you still held the hammer, you committed an assault against the victim's father by your threatening conduct (summary Charge 6 – unlawful assault). To be clear, it is not alleged you physically assaulted the victim's father with the hammer. Rather, the assault is constituted by your threatening conduct while in possession of the hammer.
15As you advanced towards the victim's father with the hammer, he picked up a rock to protect himself. The victim then moved to stand between you and her father to prevent any conflict. When she did this, you grabbed her by the throat while you held the hammer yelling, 'get in the fucken car, you're fucken driving me home'. You are not charged with respect to that conduct, but it is context to the offending that follows.
16The victim then drove you back to your address in North Melbourne. During the drive, you continued to yell abuse at her and repeatedly hit the dashboard of the car with the hammer. This caused damage to the centre console and display screen of the car (Charge 3 - criminal damage).
17At one point, the victim tried to stop you from hitting the centre console, however you continued to, and in the process struck her on the arm with the hammer (summary Charge 10 – assault with weapon ). You then punched the victim twice to her face, and poked her in the left eye (summary Charge 11 – unlawful assault).
18As the victim drove through the Domain Tunnel, you struck her to the head with the hammer, causing her pain (also comprising summary Charge 10 – assault with weapon).
19You continued to yell at the victim until she dropped you off at home. Later that evening you sent numerous text messages to her, including references to her father, stating:
a) 'I'm texting your dad directly, I'm gonna make sure he gets some brain damage” (Charge 6 – use carriage service to menace);
b) 'I'll kill you all' (Charge 4 – making a threat to kill); and
c) 'I'll burn the whole property' (Charge 5 – threat to destroy property).
Investigation and Arrest
20Police attended at the victim's home later that evening and took photographs of the injuries sustained by her and the damage to her car. The victim suffered pain, bruising and swelling to her face, neck and arms as a result of the assaults you inflicted on her. I have viewed those photographs.
21Although this offence occurred on 5 July 2022, the police were unable to locate you until 2 March 2023, when you were arrested in Cranbourne. You participated in a record of interview with police on this day and made partial admissions to your offending. You admitted sending threatening messages to the victim and her father, and that you damaged the victim's car and had threatened to damage the her father's car and motorcycle.
Objective Gravity of Offending
22The gravity of your offending is borne of the fact that you repeatedly assaulted, then threatened the victim, your intimate partner, including a serious instance of choking her by the neck, without provocation.
23The victim was powerless to avoid your acts of aggression, or to protect herself, on occasions she was alone with you in the car. Although I cannot be satisfied to the requisite standard that you deliberately hit the victim to her head with the hammer, you acted in a reckless manner brandishing a hammer in such a confined space. Fortunately, the victim was not more seriously injured as a consequence of being struck.
24It is an aggravating feature of your offending that you returned to her home following the first incident, and continued to act in an aggressive, violent manner. You had time to stop and reflect on your conduct and desist after you first left the house. This was not a one-off instance of violence. Rather you returned to the victim's home, where you continued to act in a confrontational, and aggressive manner. The victim was entitled to be safe from your acts of violence in her home.
25The act of choking the victim by the neck until she was struggling to breathe is a grave example of the offence of recklessly causing injury. Concerningly, you were not deterred from acting in this manner by the fact you were on bail. Moreover, the presence of the victim's father did not deter you from further acts of aggression. Instead, you directed your threats at both him and the victim.
26The threats you sent via text to the victim are to be viewed in the context of your earlier acts of violence. Given your earlier erratic, violent conduct directed at the victim and her father, the content of these messages must have caused the victim further concern for her safety and that of her family.
27Although no victim impact statement has been filed, the events of this day must have been traumatic for the victim.
28As the Court of Appeal recently observed in the case of Skeates (a pseudonym) v the King[1]:
'Family violence is contemptible. It warrants both condemnation and appropriate punishment…Further, the seriousness of family violence and the harm it inflicts is not to be simply equated with physical injury.'
[1][2023] VSCA 226 at [59-61]
29In sentencing you for this offending, the sentencing considerations of general deterrence, community protection and denunciation are of fundamental importance.
30Fortunately, the victim was not more seriously injured by your conduct. There is also no basis to conclude your offending was pre-planned. Rather, I accept that, in the context of a long-standing alcohol problem, you responded erratically and violently on this day. There is no suggestion you acted on the threats made in your text messages, although as I indicated, in the context of what proceeded these messages, the fact they were sent would have exacerbated the victim's fear for her safety. This was serious offending for you which your moral culpability is significant.
Personal Circumstances
31I turn now to your personal circumstances.
32You were born in Victoria and are now 33 years of age. Your parents separated shortly after you were born, and you are the only child of their marriage. Your father passed away following a drug overdose when you were 7 years old.
33You were raised by your mother until you were 11 years old. This was a turbulent period during which you were exposed to your mother's drug addiction and criminal offending, which primarily related to the sale of drugs from the family home. You report being the victim of physical violence at the hands of your mother and her intimate partners.
34You also experienced varying degrees of neglect including periods when your mother was absent and there was little food in the house. Despite your unstable upbringing, you had a close relationship with your mother, until she too passed away from a drug overdose in 2021.
35At the age of 11, you and your mother moved to live with your grandparents, where you enjoyed improved stability in your life. You completed secondary school up to Year 11, then left school to pursue various forms of casual employment, including a bakery apprenticeship. At the time of this offending, you were working in a carwash. However, you report unstable housing at this time, and it was for this reason you had gone to the victim's home.
36You have had a problem with alcohol, as well as a history of abusing cannabis and prescription medicine, for many years. You were introduced to cannabis at the age of 13 and have struggled with substance addiction, primarily alcohol, most of your life. You report being alcohol affected at the time of these events, consistent with your attendance at the bottle shop earlier that day. While this may explain your conduct to some extent, it does not excuse it.
37You have a criminal history that commenced in 2008. These include dishonesty and driving offences, and concerningly, a number of weapons offences. Relevantly, you were sentenced in the County Court in August 2012 to 36 months' imprisonment for offences including intentionally causing serious injury, criminal damage, common law assault and weapons offences. In February 2017, you were sentenced to 45 days' imprisonment for offences of unlawful assault, criminal damage and two charges of contravening a family violence intervention order. In June 2017, you were sentenced to 15 months' imprisonment for the offences of assault with a weapon, possess a prohibited weapon, and dealing with property suspected of being the proceeds of crime.
38Given your prior criminal history, including for offences of violence, the sentence I impose must deter you specifically from further offending, particularly in the context of interpersonal relationships.
39On a positive note, you have now been in a relationship of some stability with another women, Ms Patel, with whom you are able to reside in Forrest Hill upon your eventual release.
Matters Relevant in Mitigation
40On your behalf, a number of matters were raised in mitigation of your sentence.
41First and foremost, you have pleaded guilty to these charges. You indicated an intention to plead guilty to all of the charges, save for summary Charge 10, in the Magistrates' Court in July 2023, without requiring the victim to give evidence. The matter resolved to the present charges on 17 August 2023 when you entered your guilty plea on arraignment following a sentence indication given by me.
42Your plea signifies the fact you have accepted responsibility for your offending and saves the court and the community the cost and resources associated with a trial. Further, the utility of your guilty plea is heightened at a time when delays in the criminal justice system continue in the wake of the pandemic.[2]
[2]Worboyes v The Queen [2021] VSCA 169
43Significantly in cases such as these, your plea saved the victim the ordeal of recounting these events in court.
44You are entitled to, and will receive, a discernible sentencing discount in light of your guilty plea.
45On your behalf it was argued there was a delay associated with these charges. These offences arose from an incident on 5 July 2022, but you were not charged with these matters until 2 March 2023. In plea submissions it was argued the cause of this delay was unknown. However, during the plea hearing it was conceded by your counsel that this delay was caused by the inability of investigators to locate you. I know little about your circumstances at that time, although I accept you have experienced periods of unstable housing in the past. I can attach little, if any weight to the delay leading up to your arrest.
46Secondly, I have taken your difficult early childhood experiences into account as broadly relevant to your sentence. The law recognises that the effects of early childhood dysfunction and disadvantage, particularly exposure to violence, can be enduring.[3] Your culpability cannot be equated to others whose lives have not been marred by these early experiences.[4]
[3] Bugmy v The Queen [2013] HCA 37
[4] Ibid
47However, no psychological or other material was relied upon at your plea hearing and there is no basis to conclude that you have any cognitive deficits or mental health issues that would operate in moderation of your sentence, or that further reduce your moral culpability for this offending in line with the authority in Verdins.
48You were sentenced by Judge Meryl Sexton in August 2012 for offences including intentionally causing serious injury, assault and possessing a prohibited weapon, where the victim was your mother and her partner.[5] I note you were 22 years old at the time and were sentenced as a youthful offender.
[5] DPP v Swanson [2012] VCC 828
49That offending involved an assault on your mother and inflicting serious injury on her partner by striking him to the legs with a tomahawk. In sentencing you, Judge Sexton refers to an earlier assessment of Dr Ruth Vine, psychiatrist which found no evidence of any psychiatric or other mental illness.[6] Ultimately, the sentencing judge said she remained concerned about your ability to manage your anger;[7] comments that continue to resonate in the circumstances of this case.
[6] Ibid at [21]
[7] Ibid at [23]
50On your behalf, it was submitted that your prospects of rehabilitation must still be given some prominence in your sentence, and that the primary reason for your offending is your long-standing abuse of alcohol and substances. Defence counsel highlighted the fact you successfully completed parole under the sentence imposed in 2012.
51At the sentence indication hearing, Ms Whalley submitted that your alcohol and substance abuse is best addressed through a community correction order. However, in rejecting that submission, I indicated the gravity and nature of your offending, coupled with your prior criminal history, warranted the imposition of an immediate sentence of imprisonment. At the age of 33 you are no longer a youthful offender. Although your rehabilitation remains important, it carries significantly less weight than the other sentencing considerations to which I have referred, particularly that of general deterrence and denunciation.
52On 8 August 2023, you abandoned an appeal against an aggregate sentence of 12 months' imprisonment imposed by the Dandenong Magistrates' Court on 18 May 2023. That sentence was imposed for multiple graffiti offences committed between August 2019 and January 2020, and for the offences of assaulting and resisting an emergency worker on duty, and other weapons offences arising from an incident at a train station on 2 February 2020. The aggregate sentence was also imposed for a criminal damage offence where you kicked in the door at the house of a former intimate partner on 14 September 2020.
53You were also convicted of a threat to kill, involving this victim, on 31 January 2023, again subsumed within this aggregate sentence of 12 months’ imprisonment.
54When sentenced by the Magistrates' Court on 18 May 2023, 77 days of pre‑sentence detention were reckoned as already served.
55You were also remanded on these matters following your arrest on 18 March 2023. You are now serving the 12 month sentence imposed by the Magistrates' Court on 18 May 2023. This period is therefore not available to be reckoned as pre-sentence detention pursuant to s18 of the Sentencing Act 1991 (Vic). However, as the Court of Appeal clarified in the case of Wheldon,[8] I must still have regard to the period over which you have been 'warranted twice over', that is where you have been detained in custody on this offence and for the offending for which you were sentenced by the Magistrates' Court on 18 May 2023. This period is to be taken into account in a broad sense.
[8]Wheldon v The Queen [2011] VSCA 83
56The sentencing principle of totality also assumes significance in order to ensure that your total sentence reflects the totality of your offending, no more. I have had regard to these considerations in determining the period of concurrency that is appropriate as between the two matters.
57At present I cannot assess you as having positive prospects of rehabilitation, particularly having regard to your prior history. The sentencing considerations of deterrence, both general and specific, just punishment and denunciation must be given prominence in the sentence I impose. Given the prevalence of family violence in the community, often committed by men, the sentence I impose must act to deter others who, in uncontrolled anger, physically abuse and threaten their intimate partners.
58You are also to be sentenced as a 'serious violent offender' on the charge of making a threat to kill pursuant to s 6C of the Sentencing Act, and as such there is a presumption of cumulation in respect of that charge pursuant to s6E of that Act. I must have regard to protection of the community as the predominant sentencing consideration for that offence pursuant to s 6D of the Act. The prosecution did not seek a disproportionate sentence and I do not intend to impose one. Further, the sentencing principle of totality continues to apply to the sentence I impose on that charge.
Sentence
59Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I sentence you as follows:
Indictment P10469295
60On Charge 1 – recklessly causing injury, you are convicted and sentenced to 13 months' imprisonment. This is the base sentence.
61On Charge 2 – threat to damage property, you are convicted and sentenced to 3 months' imprisonment.
62On Charge 3 – intentionally damaging property, you are convicted and sentenced to 6 months' imprisonment.
63On Charge 4 – threat to kill, you are convicted and sentenced to 8 months' imprisonment. I declare that you are sentenced as a serious violent offender on this offence, and direct that this fact be entered into the records of the court.
64On Charge 5 – threat to destroy property, you are convicted and sentenced to 6 months' imprisonment.
65On Charge 6 – the Commonwealth offence of using a carriage service to menace, you are convicted and sentenced to 6 months' imprisonment.
Summary offences
66On summary Charge 2 – wilful damage – you are convicted and sentenced to 1 months' imprisonment.
67On summary Charge 3 – unlawful assault – you are convicted and sentenced to 2 months' imprisonment.
68On summary Charge 6 – unlawful assault – you are convicted and sentenced to 1 months' imprisonment.
69On summary Charge 10 – assault with a weapon – you are convicted and sentenced to 8 months' imprisonment.
70On summary Charge 11 – unlawful assault – you are convicted and sentenced to 2 months' imprisonment.
71On summary Charge 17 – commit indictable offence while on bail – you are convicted and sentenced to one months' imprisonment.
Orders for cumulation
72I make the following orders for cumulation upon the sentence I impose on Charge 1 – intentionally causing injury, and upon one another. All other sentences are to be served concurrently:
a) Charge 3 – intentionally damage property – 1 months' imprisonment;
b) Charge 4 – threat to kill – 3 months' imprisonment;
c) Summary Charge 3 – 1 months' imprisonment;
d) Summary Charge 10 – 3 months' imprisonment;
e) Summary Charge 11 – 1 months' imprisonment.
73For the Commonwealth offence of using a carriage service to menace (Charge 6), I direct that the sentence of six months' imprisonment commence 10 months after the commencement of the State sentences imposed in this matter. The effect of this is that the sentence of 6 months imposed on the Commonwealth offence will be served concurrently with the State sentence.
74This gives a total effective sentence of 22 months' imprisonment. I direct that the sentence I impose on these matters is to be served from today's date in accordance with s 17 of the Sentencing Act 1991, and is to be served concurrently with the sentence imposed by the Magistrates' Court on 18 May 2023 from this date.
75I fix a non-parole period of 16 months' imprisonment before you are eligible for parole.
76Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not entered a guilty plea, the sentence I would otherwise have imposed is 29 months' imprisonment with a non-parole period of 21 months' imprisonment.
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