Director of Public Prosecutions v Taylor (a pseudonym)

[2020] VCC 769

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAAC TAYLOR (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2020
DATE OF SENTENCE:	1 June 2020
CASE MAY BE CITED AS:	DPP v Taylor (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 769

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Offender	Ms A. McLure	Leanne Warren & Associates

HIS HONOUR:

1Isaac Taylor,[1] you have pleaded guilty to the following offences, which carry the following maximum penalties:

[1] A Pseudonym.

Charge Nos.	Charge	Max Penalty
1	Persistent Contravention of Family Violence Order	5 years or Level 6 fine (600 penalty units) or both
2	Carjacking	15 years
3	Causing Injury Intentionally	10 years
4	Make Threat to Kill	10 years
5	Damaging Property	10 years
Summary Charges 1 (Kennedy), 1 (Kolivas), Summary Charge 15 (Watson)	Drive Whilst Authorisation Suspended	2 years or 240 penalty units
Summary Charge 11 (Watson)	Assault with Weapon	2 years
Summary Charge 13 (Watson)	Commit Indictable Offence Whilst on Bail	3 months or 30 penalty units
Summary Charge 14 (Watson)	Contravene a Conduct Condition of Bail	3 months or 30 penalty units

2The offence of carjacking is a Category 2 offence.  What this means for sentencing purposes is that you face a mandatory period of imprisonment (as there were no exceptional circumstances raised on your behalf) on this charge.

3You also face a period of licence disqualification.

4You have admitted your prior convictions.  You have a number of matters which are relevant to the sentencing consideration in this matter and I shall say more about them later in these remarks.

5The Crown tendered a summary of prosecution opening on plea as Exhibit A.  The summary of your offending is as follows.

6At the time of your offending you were 27 years old.  The victim of your offending is your former partner, Laura Nicol.[2]  Ms Nicol is 35 years old.  You had been in a relationship with her for four years and you had two children together.

[2] A Pseudonym.

7On 9 January 2019 Ms Nicol took out an intervention order at the Frankston Magistrates' Court.  The order protected Ms Nicol and her children.  The order was served on you and you were aware of its existence.

8Between 17 and 27 January you left 11 voice messages on Ms Nicol's mobile phone (part of Charge 1).

9On 30 January 2019 you recommenced living at Ms Nicol's address with her consent.  I note that this is alleged as part of your offending on Charge 1.

10On 5 February 2019, at approximately 4.30 am, you woke Ms Nicol demanding the keys to her car.  You stated: 'You think a piece of paper is going to save you?  You have two minutes to find your keys or I'll end your life' (Charge 4).

11As Ms Nicol tried to find the keys you followed her, and as she found them you grabbed the keys from her (Charge 2), spat on her, punched her two or three times to the head, slammed her into the wall, hit her six or seven times to the face and slammed a pedestal fan into her head (all part of Charge 3).  These events were witnessed by Ms Nicol's 17 year old daughter, who called the police.

12When the police attended in response to the call they noticed swelling and bruising to Ms Nicol's face, head and arms.

13Later, on the afternoon of 5 February, staff from DHHS attended with a locksmith to change the locks to her home.  You attended at this time and tried to enter the house but could not, because the locks had already been changed.  You threatened the locksmith and said 'you’re going to make me keys for that fucking house'. You also stated 'I will kill you.  I will fucking hunt you down and shoot you between the eyes'. You were armed with a pair of scissors.  You kicked the locksmith to the chest and attempted to stab at his stomach area (Summary Charge 11).

14You got back into the car you had stolen from Ms Nicol and drove away.  The locksmith reported this matter to the police.

15On the same day you left a further three messages on Ms Nicol's mobile phone (part of Charge 1).

16On the evening of 5 February, at about 7 pm, you returned to Ms Nicol's home and broke in through the rear door and damaged the door frame (Charge 5).

17At about 10 pm you went to the Carrum Downs police station and handed yourself in.  You made a no comment record of interview.  You were remanded in custody and you have remained there ever since.

18You told your counsel that you had been drinking heavily from about midnight leading into 5 February, and throughout the day and evening of 5 February.  Although your actions were alcohol affected it was not submitted (nor could it be) that your consumption of alcohol in some way mitigates your offending.

19At the time of committing the indictable offences you were on bail for previous offending (Summary Charge 13).  A condition of your bail prohibited you from driving a car.  You contravened this condition when you stole and drove Ms Nicol's car (Summary Charge 14).

20You were suspended from driving at the time you were driving Ms Nicol's car and on other occasions to which you pleaded guilty (summary offences of driving whilst suspended).

21You indicated an early plea of guilty to the offending.  There was some delay in the matter coming before this court and you made an unsuccessful application for summary jurisdiction.  Nevertheless, I consider this plea to have utilitarian benefit and I shall take it into account as a mitigating factor.

Objective Gravity and Moral Culpability

22The charge of persistent breach of family violence intervention order is a charge which the courts treat seriously in every instance.  Whilst for the most part it is constituted by your persistent telephone calls, and many of them before you were allowed by Ms Nicol to return to her home, it is always the underlying breach of trust and the vulnerability of the victim – that is, your partner and mother of your two children – which calls for strong condemnation of family violence and a breach of the orders meant to protect women such as Ms Nicol.

23The real gravity of the offending here is the fact that in contravention of the court order you returned to live at the home.  I do not blame Ms Nicol for this - academic studies and the experience of this court are replete with examples of abused partners who take violent offenders back into their homes – but the real gravity here, as I was saying, is what occurred a few days after you returned.  Your violence started in the very early hours of 5 February and was fuelled by an uncontrolled atavistic rage.  The threat to kill, intentionally cause injury and carjacking were examples of your violent domination of your partner and the fear you caused to her child, who watched as you assaulted her mother. So it is apparent to all that your return home in contravention of the family violence order was very serious indeed. 

24To that I add the fact that you committed these offences whilst on bail.

25Your attack on the civilian locksmith was particularly despicable.  It is apparent from his victim impact statement that your conduct, filled with rage and coming at him with a pair of scissors as he was quietly going about his work, has had a significant adverse effect on his already anxious disposition.  To attack a vulnerable person, quietly going about their work, kicking him and raising the fear of being stabbed with a pair of scissors, is appalling and cowardly behaviour.

26When seen in this context your offending occurred over a very long duration.  It started at 4.30 am, you returned to the house and assaulted the locksmith at about 3 pm and you kicked in the back door at about 7 pm.  You told your counsel, in respect to the locksmith, that you felt an uncontrollable rage.

27Your actions overall deserve the denunciation of the community.  Everyone abhors violence against domestic partners and this ugly violent conduct towards women.  Your attack on the unsuspecting worker also deserves denunciation.  Your criminal conduct must be met by just punishment, which in this case means a period of imprisonment.  The final significant sentencing principles in this case are those of general and specific deterrence.

28The offending must attract a high measure of specific deterrence given your prior convictions, and within those convictions the fact that you have two previous convictions for family violence matters – most recently again involving Ms Nicol and another earlier matter involving a different partner.  Moreover, you have previous convictions for assault and assault with a weapon.  I was told the assault conviction in 2010 occurred when you assaulted your father with a length of pipe.

29Together, all of these factors make your moral culpability for your offending very high. 

30The message must be sent that violence in any form will not be tolerated by the courts – in this case, domestic violence and violence against an unsuspecting person going about his daily work.

31In addition to the other principles I have named, general deterrence must play a significant part in the sentence I impose upon you.

Personal Circumstances

32You are 28 years of age.  You are the second eldest of four children.  Your father worked as a prison warden at Pentridge Prison.  It appears that you were raised in a household environment of unmitigated violence.  You reported your father breaking your nose on Christmas Day, when you were aged four. he punched you in the testicles, causing one to be surgically removed, when you were nine. You were medicated at seven (apparently) in an effort to moderate your own behaviour.  I was told this was unsuccessful.  Your father was also violent towards your mother and they separated when you were seven.

33Your schooling was chaotic.  Although you attended primary school and started Year 7 you were expelled in that year and that effectively finished your education. 

34Although you held some labouring jobs over your teen years, you have effectively not worked since you were 18. You receive a disability support pension when in the community.  You qualified for this pension from both your mental health issues and from a diabetic condition which was not managed in early life and which has adversely impacted on your health since that time.  Your condition is now managed by insulin injections.

35You started using cannabis at age 12 and became a regular user by age 13.  You started using methamphetamine at age 17.  Your use of this drug continued up to the point of your imprisonment for these offences.  It seems, however, that methamphetamine did not contribute to this offending.  Rather, for some years now, you have been abusing alcohol on a very significant scale.  You had been drinking right through the period of your offending on 5 February 2019.

36You lived with your mother until you were 16 years old.  Your mother left you to fend on your own after this time.  You describe her as 'manipulative'.  Your own behaviour at this time must also have been testing.

37You went to live with your father for a brief period of time but your relationship with him remained poor.  After that you experienced periods of homelessness.

38In more recent times your relationship with your mother and younger siblings has been good.  Your mother was visiting you in prison until the COVID-19 pandemic caused a lockdown and cessation of all prison visits.

39When you were initially received into prison you continued to abuse drugs that you were able to obtain from within the prison system.  Since this initial period, however, you have abstained from drugtaking.

40Since you have been in custody you have completed an alcohol and drug course through Caraniche, a course in managing depression and anxiety, a respectful relationships course, and you have engaged in one-to-one counselling.

41In his report dated 3 March 2015, Dr Aaron Cunningham noted that you have attempted suicide on five occasions, each resulting in inpatient psychiatric treatment.  Overall, Dr Cunningham concluded that you meet the diagnostic criteria for borderline personality disorder.

42More recently, in his report of 4 September 2019, Dr Cunningham stated that whilst you have increased your community stability since the date of his last report, you are still having difficulty coping with the stress of the relationship which you are in, and you continue to suffer paranoia and mistrust of your partner.  Dr Cunningham concluded that you have not engaged with specific intervention tailored to your mental health condition and, going into the future, you will require structured therapy and probably management through the NDIS, and mental health case management.  Dr Cunningham concludes if you are able to maintain accommodation and employment, and engage meaningfully and constructively in relationships with others whilst abstaining from drug and alcohol abuse, then you would reduce your risk of reoffending and improve your prospects for rehabilitation.

43I might observe, with all respect to Dr Cunningham – who provides a considerable number of insightful reports to this court – that these last observations are simply truisms which would reduce the risk of reoffending and improve the prospects for rehabilitation of many offenders who come before the court.

44I am prepared to find that you exhibited remorse at the time that you decided to hand yourself into police on the night of 5 February.  You have tried to use your time in custody in a positive manner.  Although your actions on 5 February, and more recently in your time in custody, may give an indication of a spark of insight, I consider your prospects for rehabilitation are low, or at best, very guarded.  I make this assessment against the fact that this is your third conviction for serious domestic violence, that you have prior serious assault convictions and that you have breached numerous court orders, including community corrections orders, in the past. Dr Cunningham's report provides an opinion as to the enormous and intensive amount of intervention that is required to sort out the myriad of mental health, social and personality difficulties that confront you.  All of these are enveloped in your entrenched abuse of alcohol and drugs.  It will take a dedicated commitment by you to work with healthcare providers and others to overcome these difficulties and to put them behind you.

45I have a letter from Laura Nicol which speaks of your very difficult upbringing and her (in effect) forgiveness of you.  The two of you are not currently in a relationship, as you have stated you will not go back to the relationship until you are able to manage your stress and paranoia, and treat Ms Nicol with respect.

46In my view, whilst I do not dismiss Ms Nicol's letter, the experience of the courts is that evidence of forgiveness should be treated with extreme caution.  I will, however, take into account the fact that you have been in prison since February 2019 and that the letter was written in recent times.  In other words, Ms Nicol has had the opportunity to watch you over a period of time whilst you are in custody and write her letter from a cooler, calmer perspective.

47I must, however, make the point that her forgiveness of you and her plea for clemency on your behalf cannot dictate the course of sentencing process in this case.  As I said earlier, the objective principles of sentencing remain the principal factors in formulating the sentence I must impose.  Matters personal to you have less of a role to play in this sentencing process.

48Moreover, as I have mentioned at the outset, the charge of carjacking is a Category 2 offence under the Sentencing Act.  That means that you face a period of imprisonment on that charge which would prevent the imposition of a combination sentence of imprisonment with a community corrections order. In any event, I consider the offending on this occasion, against the background of your prior convictions, requires a sentence to be served with a parole period to be set.  I agree with your counsel, and with Dr Cunningham, that you will require assistance for your reintegration back into the community. I intend to set a non-parole period which will give you an opportunity for parole.  You will have to work hard in order to achieve parole.  If you are granted parole then it will provide the support, monitoring and services that you require to make a transition back to the community.

Sentence

49I sentence as follows:

Charge Nos.	Charge	Max Penalty	Sentence	Cumulation
1	Persistent Contravention of Family Violence Order	5 years / Level 6 fine (600 penalty units) or both	20 months	Base – 20 months
2	Carjacking	15 years	12 months	3 months
3	Causing Injury Intentionally	10 years	15 months	5 months
4	Make Threat to Kill	10 years	9 months	3 months
5	Damaging Property	10 years	6 months	2 months
Charges 1 (Kennedy),	Drive Whilst  Suspended	2 years / 240 penalty units	3 months	1 month
Drive Whilst  Suspended	3 months	1 month
Drive Whilst  Suspended	3 months	1 month
Summary Charge 11 (Watson)	Assault with Weapon	2 years	12 months	6 months
Summary Charge 13 (Watson)	Commit Indictable Offence Whilst on Bail	3 months / 30 penalty units	2 months	1 month
Summary Charge 14 (Watson)	Contravene a Conduct Condition of Bail	3 months or 30 penalty units	2 months	1 month
TES:	44 months
NPP:	30 months

50That reaches a total of 44 months' imprisonment, to which I announce a non-parole period of 30 months.

51I declare the period of 482 days pre-sentence detention excluding today reckoned as already served.

52You are disqualified from driving for a period of three years.

53The 6AAA declaration is but for the plea of guilty I would have imposed a sentence of five years with three and a half to serve.

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