Director of Public Prosecutions v Swift
[2015] VCC 1588
•4 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 15-01036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK ADAM SWIFT |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 November 2015 | |
CASE MAY BE CITED AS: | DPP v Swift | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1588 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Offender | Ms S. Leighfield |
HER HONOUR:
1 Mark Adam Swift, you have pleaded guilty to one charge of aggravated burglary (Charge 1), one charge of common assault (Charge 2) and one charge of recklessly causing serious injury (Charge 3). The maximum penalty for aggravated burglary is 25 years’ imprisonment. The maximum penalty for recklessly causing serious injury is 15 years’ imprisonment. The maximum penalty for common assault is five years’ imprisonment.
2 The circumstances of your offending are set out in the Prosecution Opening on the Plea which was tendered as Exhibit A.
3 In brief, on Thursday 28 August 2014 your ex‑partner, her brother and his girlfriend stayed the night at your ex‑partner’s house with her and her two children. Your ex‑partner’s new boyfriend was also staying the night. At about 9.30am in the morning on 29 August 2014 you caught a taxi to your ex‑girlfriend’s address. You asked the taxi driver to drop you off just up the road from her house.
4 You went into the house and went into the bedroom where your ex‑partner and her boyfriend were sleeping. Your ex‑girlfriend woke up with you standing over her bed screaming at her. She pulled the doona over her head, and you started to punch her. While you were punching her you were screaming “Get out the front, get out the front.” You then went around the other side of the bed and began assaulting your ex‑partner’s boyfriend. Your ex‑partner got out of bed and went to her children’s room. By that stage you had her new boyfriend out of bed and on the ground. You were standing over him and punching him with both fists. He was attempting to protect his head.
5 Your ex‑partner then could hear you walking around the house and yelling “Come outside you dog.” She heard you go out the front door, so she ran and locked the door behind you. Your ex‑partner, her boyfriend, the two children and your ex‑partner’s brother’s girlfriend all went into the lounge room and tried to barricade the door to prevent you from re‑entering. You were banging on the window next to the door and you could be heard walking around the outside of the house trying to get back in. Your ex‑partner’s brother’s girlfriend was trying to find a phone to call the police.
6 You found a crowbar outside the house. You smashed the front window and put your arm through the broken glass to unlock the door and regain entry to the property. You cut your arm in the process. At the time of re‑entering the property you had the crowbar in your hand. Charge 1 of aggravated burglary is put on the basis that when you re-entered the house you had a weapon with you and were intending to assault someone in the house.
7 You tried to get into the lounge room but the occupants were all leaning against the door to stop you. You then walked down the hallway and into the kitchen area. You broke a panel on the door and gained entry into the room where the others were. Your ex‑partner grabbed her two children and stood in the far corner. The other lady was with her and on the phone to the police at this stage.
8 Your ex‑partner’s boyfriend ended up on the couch and you began assaulting him with the crowbar. You swung the crowbar from above your head and brought it down onto your ex‑partner’s boyfriend. He was putting up his arms to defend himself and received several blows to the arms. You stabbed the crowbar at him in the stomach area. He was trying to calm you down but you continued the assault. He was bleeding by this stage. Your ex‑partner was pleading with you to stop and not to do what you were doing in front of her two children who by this stage were hysterical.
9 You then told your ex‑partner to go outside. She was frightened and refused to go with you. You grabbed her by the hair and tried to drag her into the hallway. She put her feet in the doorway to stop you pulling her through the door. You let go of her and returned to her boyfriend and struck him with the crowbar while he sat on the couch. Again your ex‑partner was pleading with you not to do what you were doing in front of the children. You grabbed her by the hair and threw her on top of the glass coffee-table. The legs of the coffee-table snapped and she fell to the ground. Charge 2 of common law assault encompasses the entirety of the assault on your ex-partner.
10 You then started assaulting your ex‑partner’s boyfriend with the crowbar again, with him pleading with you to stop. A car could be heard arriving, and you ran away and took yourself to hospital.
11 Your ex‑partner’s boyfriend suffered a number of injuries from this attack being a close comminuted fracture of the right foot third metatarsal head, compound fracture of the right ulna and dislocation of the radial head from the capitellum and second fracture of the distal shaft of the ulna around 6‑8 centimetres from the wrist joint. The two fractures to the arm required surgery. The bones had to be re‑located, and plates and screws were also internally fixed. Charge 3 of recklessly causing serious injury covers the injuries you inflicted on your ex-partner’s boyfriend during this assault.
12 You were arrested at the hospital. You received treatment for cuts to your arm and were taken to a police station for interview. You made admissions to breaking the glass window in order to force entry to the premises. You admitted you did not have permission to enter the house. You said there was an altercation between you and your ex‑partner’s boyfriend but denied assaulting your ex‑partner. You could not recall having possession of the crowbar or using it but conceded that it was possible that you did.
13 You indicated your plea of guilty at the listed committal hearing prior to the calling of any witnesses.
14 In sentencing you I have taken into account your personal circumstances which were outlined by your counsel and in the report from Mr Guy Coffey, clinical psychologist, dated 23 August 2015 (Exhibit 4). You are now 37 years old. You were born in Bendigo. You were raised by your hardworking parents together with your older brother and younger sister. You completed VCE. You also completed a Certificate III in Hospitality. You had started playing football in the seniors in a local team when you were 18. You continued to play football, and played for a rural team on a semi-professional basis. You stopped working in hospitality when you were 21 and started working in the abattoirs. When you were 22 you had a significant injury to your knee. This did not occur whilst you were playing football but you were unable to play sport after that.
15 You started using cannabis when you were 23 and smoked heavily on a daily basis until 2013. You started using methamphetamine when you were about 25 and used it on a daily basis until 2013.
16 You worked on and off in labouring jobs until you were about 31. You then obtained work in a concrete-moulding factory where you worked until 2013 when the company was sold. You then began working at a dairy-products factory. At this stage you were working shift-work. You were enjoying the work and ceased using drugs. In February 2014 your ex‑partner had a miscarriage. You and she had difficulties in your relationship and by the time of these offences you were still in contact but were not living together.
17 You have admitted a prior criminal history. Your prior criminal history generally involves drug-related and dishonesty offending. You had one court appearance in 2004 on a charge of unlawful assault. It appears that you were not convicted on that charge but were fined a relatively modest fine in respect of that charge and other charges. That penalty suggests that this was not a particularly serious matter.
18 After the offending for which I am sentencing you, you had a relapse into drug use. You have had a subsequent court appearance in respect of offences allegedly committed with your ex‑partner, with whom you were still in contact. Those matters have not yet been concluded.
19 In December 2014 you committed breaches of intervention order and other related offences in respect of your ex‑partner. Those matters were dealt with as pleas of guilty on 7 July 2015.
20 On 7 July 2015 you were sentenced in respect of the breaches of intervention order and other related offences which had occurred over a three day period in December 2014. You were convicted and placed on a 15 month community correction order with conditions including community work and assessment and treatment conditions. You spent 89 days in custody on remand in respect of those matters. That period has not yet been taken into account in sentencing you.
21 Since your release you have been living with your parents. Your parents have told your counsel that you have matured since your period in custody.
22 Mr Coffey says that you did not suffer from any mental disorder when he assessed you. You were not clinically depressed, and were anxious without having a disorder. He said there was no reason to believe you were suffering from any sort of mental illness at the time of this offending, and you said you were not alcohol or drug affected.
23 You told Mr Coffey that you were angry because you thought your ex‑partner was using drugs and you blamed her brother and her new boyfriend for her drug use. You had been separated from your ex‑partner for about a month at the time of this incident. You told Mr Coffey that you went to talk to your ex‑partner and became angry when you found her with her new boyfriend. You agreed that you need treatment, and told Mr Coffey you want to join a men’s behaviour change group and that you would wish to continue seeing a psychologist and avoid drug use. You expressed your remorse to Mr Coffey, particularly that you deeply regretted exposing young children to your violence.
24 Mr Coffey is of the view that further offending of this kind is not likely if you receive adequate treatment aimed at “drug relapse prevention; assisting with his predisposition to depressed mood; improving the regulation of his emotions; and increasing his ability to understand his personality when he enters a relationship”.
25 In sentencing submissions your counsel addressed the seriousness of your offending and submitted that the injuries inflicted were at the lower end of the range of serious injuries, given the current definition of serious injury. Your counsel submitted that your sentencing should be deferred to allow you to complete your current community correction order. Your counsel submitted that deferral of sentence would allow you to demonstrate your capacity for rehabilitation and continue with your assessment and possible involvement with a men’s behaviour change program.
26 Your counsel’s second submission was that I should impose a sentence involving a term of imprisonment to be followed by a community correction order.
27 In mitigation your counsel relied on a number of factors, including:
(a)Your plea of guilty;
(b)Your prospects of rehabilitation;
(c)Your limited prior criminal history;
(d)Your work history; and
(e)Family support.
28 Your counsel submitted that I should take into account the period that you had spent in custody on other matters in sentencing you, as this had not yet been taken into account.
29 I consider in this case that a sentence of imprisonment is inevitable, and I refuse to defer sentencing you. I did have you assessed for a community correction order and you were assessed as suitable. The assessment provides no information as to your progress on the current community correction order. I accept that you have made some progress in terms of completing some work hours. The assessor says that you had been diagnosed with depression two weeks before and were prescribed Valium. You said that this was having a positive effect.
30 A positive reference from your past employer was tendered as Exhibit 2.
31 In respect of the circumstances of your offending, your counsel submitted that it was not pre‑planned and that your use of the weapon was opportunistic and spontaneous.
32 A receipt was tendered from your ex‑partner’s father to whom you paid $300 for the damage you had caused (Exhibit 3). Your counsel said this was an additional demonstration of your remorse.
33 The prosecutor in sentencing submissions referred to the seriousness of this incident and the dangerousness of the weapon that you had picked up. The prosecutor referred to a number of aspects, including an attack on a young mother in her bed and then re‑entering and continuing the attack on her and her new boyfriend in the presence of her children.
34 The prosecutor submitted that general deterrence would loom large as a sentencing consideration as would specific deterrence, denunciation and just punishment.
35 The prosecutor accepted that you had potential for rehabilitation but submitted that the seriousness of your offending warranted a sentence of imprisonment which would not allow for the combination of a sentence of imprisonment and a community correction order.
36
Mark Swift this is clearly very serious offending. You went into your
ex-partner’s home with the intention of confronting her. You found her in bed with her new boyfriend and this appeared to increase your anger. You commenced violent assaults on both of them. You left and then re-entered the house armed with an extremely dangerous weapon. You broke into the room where people were trying to hide. You attacked your ex-partner and her boyfriend again in a vicious attack in front of her young children and another woman. Three booklets of photographs were tendered as Exhibit B. The photographs show the crowbar that was used and the ghastly injuries to each of the victims. The whole episode must have been absolutely terrifying. This is a serious example of what was described by the Court of Appeal in
R v Anderson[2014] VSCA 255 as ‘intimate relationship aggravated burglary’. The injuries suffered by your ex-partner’s new boyfriend may have been toward the lower end of serious injury as that is now defined but they remain significant and serious. A significant penalty must be imposed in order to punish you and to deter others from similar acts of violence.
37 I consider that your prospects for rehabilitation are reasonable at best. You offended in this case despite having had a period of time away from illegal drugs and with a period of relative stability in your employment. This offending was committed in the morning and you had not been using drugs or alcohol so there was no disinhibiting effect from any substances. There is nothing in the psychological report to explain your actions except that you went uninvited to talk to your ex-partner and lost your temper when you found her with her new boyfriend. You had an opportunity to cool down but went back into the house bent on attacking your ex-partner’s new boyfriend and armed with a weapon. After this offending you went back on to drugs and committed further offences. You do not have a history of violent offending but it seems that over the long term you have considerable difficulty controlling your own behaviour in various ways. That may improve with further participation in programs but at present I consider that specific deterrence must be given significant weight in sentencing you.
38 You are entitled to a substantial discount for your plea of guilty. That plea and your co-operation with the police has saved the trauma and expense of a trial. I accept that it is also an indication of your remorse as is your payment for repairs. You seem particularly remorseful about offending in front of the children.
39 You do have prospects for rehabilitation and are willing to undergo treatment and programs which would assist in your rehabilitation. You have family support, somewhere to live and prospects of employment.
40 The seriousness of your offending is such that only a sentence of imprisonment can appropriately meet the sentencing purposes of denunciation, just punishment, general deterrence and specific deterrence. That sentence must be longer than that which would allow for a combination of imprisonment and a community correction order. There are factors which operate in mitigation of sentence but not to the extent of changing that conclusion.
41 In sentencing you I have provided for some cumulation in sentence to reflect the different types of offending and different victims. I have taken into account the principles of parsimony, totality and proportionality. I have also taken into account in fixing the sentence the 89 days you have previously spent in custody on other matters.
42 On Charge 1, of aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years and ten months.
43 On Charge 2, of common law assault, you are convicted and sentenced to a term of imprisonment of one year and three months.
44 On Charge 3, of recklessly causing serious injury you are convicted and sentenced to a term of imprisonment of three years.
45 The sentence on Charge 1 is the base sentence. Three months of the sentence on Charge 2 and eight months of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 1.
46 The total effective sentence is a term of imprisonment of four years and nine months.
47 I fix three years and three months as the period you are required to serve before being eligible for release on parole.
48 I declare that you have served 19 days of this sentence by way of pre-sentence detention to be deducted administratively.
49 But for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years with a non-parole period of five years.
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