Director of Public Prosecutions v TREW
[2021] VCC 46
•2 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01847
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE TREW |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2021 | |
DATE OF SENTENCE: | 2 February 2021 | |
CASE MAY BE CITED AS: | DPP v TREW | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 46 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty – one charge common assault – one charge
aggravated burglary – prior history of intimate partner violence - circumstances of COVID-19 pandemic.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Collier v R [2018] VSCA 47; R v Lowe [2009] VSCA 268; DPP v
Meyers (2014) 44 VR; Hogarth v The Queen [2012] VSCA 302; Suckling v The Queen [2013] VSCA 278.
Sentence: Total effective sentence of four years imprisonment with a non-parole period of two years and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr D. Sala | Giorgianni & Liang Lawyers |
HER HONOUR:
Introduction
Pleas of Guilty and Maximum Penalties
1 Luke Trew, you have pleaded guilty to one charge of common assault and one charge of aggravated burglary. Common assault is a common law offence and attracts a maximum penalty of five years’ imprisonment. The aggravated burglary charge is put on the basis that you entered the victim’s home as a trespasser with the intent to assault him and knowing, or being reckless as to whether, he was inside. This offence carries a maximum penalty of 25 years' imprisonment.
Circumstances of the Offending
2 In terms of the circumstance of the offending the Prosecution Opening is dated 13 January 2021 and sets out the circumstances of your offending. It was tendered on the Plea and became Exhibit A. It is attached to, and forms part, of these reasons. I will summarise just some of the facts giving rise to your offending here.
3 Your offending took place on the evening of 23 February 2019 and the early hours of the following day.
4 At the time you were in a relationship with the first victim, who lived with her daughter at an address in Apollo Bay. You sometimes stayed at that house. The second victim lived in a bungalow, about 3 kilometres away.
5
On the evening of 23 February 2019 you and the first victim spent time at the Apollo Bay Hotel together. At some point you became disagreeable.
The first victim left and went home to bed.
6 In the early hours of 24 February the first victim was woken when you arrived at her house. You were in a rage. You spoke angrily to her. You got on to her bed, got on top of her, and with both your hands, took her around the throat. You then strangled her for a few seconds. At first the first victim found it hard to breathe. Then she could not breathe at all. This act gives rise to Charge 1 on the indictment, common law assault.
7 The first victim pushed you off her. You continued to pace around the house, speaking angrily and incoherently. This woke her daughter, who heard you yelling at her mother. She got out of bed because she was worried. She found you pacing around the lounge room. You knocked a painting off the wall and knocked over pot plants.
8 The first victim’s daughter told you to leave. You refused to do so without the victim’s car keys. You were searching for the keys and while doing so told the victim’s daughter that you were going to go cut the second victim’s throat and then kill yourself.
9 Your behaviour continued in this vein for some time. The two women hesitated to call police because they feared your reaction to them doing so. You became increasingly agitated in your search for the car keys. At one stage you put toilet paper rolls into the washing machine and threatened to set them alight.
10
Next, you picked up a kitchen knife from the bench. Both women asked you to leave the house. You said to the victim’s daughter, 'Do you want to see me hurt myself?' You then used the knife to cut your forehead. With blood trickling down your face you went up to her, holding the knife to your own throat, and said, 'Do you want to see me kill myself?' I pause here to note that
the victim’s daughter was 18 years old at the time.
11 Ultimately the victim’s daughter managed to call 000. Police were dispatched from Colac. The victim told you that she had called police. You then picked up a second knife and drove both knives into the kitchen bench, leaving them stuck there. You left briefly, then returned and grabbed the keys to the victim’s car. You then took the larger of the two knives with you.
12 You told the victim that you were off to, 'Sort out the shit', with the second victim once and for all. You then left.
13 You drove away in the victim’s car. Police arrived after you had gone.
14 At around 5 am you called the Colac Police station and spoke to Senior Constable Manley. You were aggressive and said to him that, 'someone was going to die tonight'. You would not tell Police where you were at first. You made several more calls to the Colac Police station around this time. You made similar threats in these calls, in particular against the second victim. You claimed he was a paedophile and that Police had, 'Done nothing about it'. You repeated that ‘someone was going to die’ and suggested that the Police were going to shoot you.
15 At around 5.20 am you placed a call to the Colac Police station again. You spoke to the same police officer and stated that you were going to the second victim’s house in order to strangle him. It is estimated that you made something in the order of five calls of this nature to the Police in the half hour or so between approximately 5 am and 5.30 am.
16 At about 5.30 am you arrived at the second victim’s home. He awoke to the sound of you trying to kick his front door in. He heard you shouting outside that you were coming in. You attempted to get in through a window, then returned to the front door and kicked it in by breaking the deadlock.
17 The second victim then called police.
18 I pause here to note that in 2016 you had been found guilty of charges for offending against the second victim, of making a threat to kill, unlawful assault and assault with a weapon.
19 You entered the second victim’s bungalow and took his mobile phone from him. You then sat on the edge of his bed and threatened to cut his throat, among other things.
20 You told the second victim that you did not care if you were shot by police.
21 Just before 6 am you again called Colac Police station and spoke to Constable Manly. You said you were at the second victim’s house and that there was nothing that Police could do to stop you from killing him.
22 When the Police asked to speak with the second victim you said that he was unable to speak as he had a, ‘mouthful of socks’.
23 About half an hour after you arrived, the Colac Police arrived at the second victim’s home. You were observed sitting on the bed next to the second victim inside the bungalow. When the sergeant asked you to come outside you did so. You were arrested without incident and the Police took you to Geelong Hospital by ambulance.
24 Later, the black handled kitchen knife from the first victim’s kitchen was found on the front passenger seat of her car.
Arrest and Interview
25 After you were discharged from hospital you were taken into Police custody and you declined to be interviewed.
Prior Criminal History
26 You have a limited prior criminal history. However, two charges are relevant to this sentencing process. In 2015 you were convicted of charges of threatening to inflict serious injury, unlawful assault and intentionally damaging property. These offences were committed against your former intimate partner. I have already referred to the previous offending against the second victim and I will return to these prior convictions later in these reasons.
Procedural History
27 I will now set out the procedural history of your case. You were charged and remanded on 25 February 2019 and spent 11 days in custody before being granted bail on 8 March 2019. A committal hearing was listed at Geelong Magistrates’ Court on 11 September 2019. However, on the day you did not cross-examine the witness and the case proceeded to the County Court by way of straight hand-up brief. A number of directions hearings were conducted over the following months and by 6 October 2020 negotiations were on foot to resolve the case.
Nature and Gravity of the Offending: Culpability and Degree of Responsibility
28 I will now address the nature and gravity of your offending, your culpability and your degree of responsibility. I am obliged to articulate where your offending fits into a range of similar offending. The common law assault I regard as being a mid-range example of offences of this type. You held on to the female victim’s throat for a number of seconds, such that she could not breathe. This occurred in the context of you arriving at her house and behaving in an aggressive way. I am obliged to only sentence you for the offending itself. The other behaviour described in the Prosecution Opening has been included in order to provide context for the charges and to explain the journey from one charge to the next.
29 It is relevant that Charge 1 took place in the context of an intimate relationship in the home of your victim. The courts and the community regard violence against an intimate partner in their home as being particularly repellent. I understand that you were in a highly aroused emotional state when you committed these acts, but there is no excuse for behaving towards an intimate partner in the way that you did, and the fact you were experiencing powerful emotions does not make your conduct acceptable.
30 The aggravated burglary occurred shortly afterwards. The journey there was a short one, perhaps 3 kilometres. The second victim was woken by your violent entry to his home. You broke his door in the process. You were in a highly agitated state. You had previously assaulted him. It was no doubt absolutely terrifying for him. Thankfully he was uninjured.
31 Although technically this offence of aggravated burglary fits in the, ‘family violence’, category described in the Family Violence Protection Act, it was common ground at the hearing that it does not attract the quality of attention that courts are expected to give intimate partner violence.
Motivation/Vigilantism
32 According to the Prosecution Summary you went to the second victim’s house while making some general claim that he was a paedophile and that there had been police inaction on the subject. The source of that belief, whether real or imagined, is not before the court and would be of limited assistance or no assistance if it were. What is relevant to some degree is that it appears you were motivated in your offending, at least in part, by the misguided belief that you might extract some kind of justice at the second victim’s home that night.
33 The principles in relation to vigilantism are engaged to some degree in this case[1]. I take it into account insofar as it was one of perhaps a number of matters operating on you when you went to the second victim’s place that evening. Your counsel conceded that it was one of a number of factors to be balanced in the sentencing process. The prosecutor submitted that the issue was, ‘live’, going to general deterrence, though perhaps not as powerful in your circumstances as it sometimes is. I accord this aspect of your case some limited importance in the overall scheme of things.
[1] R v Lowe [2009] VSCA 268
34 I note that in the end, you did not injure the second victim, despite ample opportunity to do so, and saying that you would.
35 Having noted those matters, and with reference to the factors discussed in DPP v Meyers[2], I also make the observation that your arrival at the second victim’s home appears to have been the result of little planning (I note that you mentioned you would go there approximately an hour before you did). There was no premeditation and it seemed to arise out of an emotional state that you allowed yourself to enter during the hours before. There was some forethought. Although you took a knife from the first victim’s home, you did not carry it in with you when you entered the second victim’s house. You repeatedly invited the Police to give you attention (the five phone calls on the way) and, indeed, when Police arrived, your submission to their authority, despite your earlier prediction of a confrontation, was instant and complete.
[2] (2014) 44 VR at 486.
36 Ultimately, I find that both charges represent mid-range examples of the offences of their kind.
Personal Circumstances
37 I will now turn to your personal circumstances. You are now 42 years old. You committed these offences when you were 41. You are the middle child of three to your parents’ marriage. Their relationship concluded when you were approximately 15. You grew up in regional Victoria around the Wodonga area. You attended school until about halfway through Year 11.
38 Although not academically gifted, you were extremely good at football and were drafted into the AFL. You played for the West Coast Eagles and later for Essendon. After returning to Victoria you did not play much in the AFL but rather for local Victorian teams.
39 You have described your childhood as good. You worked variously in a desalination plant and later completed an apprenticeship in carpentry. You are now experienced in that trade.
40 You have been in a number of significant relationships with women since you were about 15. You met the first victim in this offence when you were approximately 40 years old.
41 You have had issues with drug use in the past. In particular, with methamphetamine and MDMA, in the context of the rave music scene. In general, that drug use was in a social context but your amphetamine use became more troubling in your 30s and the most significant of your prior convictions arise in the context of the use of that drug. It was submitted that you, to the best of your memory, had not used methamphetamine prior to this offending. However, it is considered that your memory of these events is clouded.
42 Although you have had generally good physical health, in 2019 you were diagnosed with carcinoma on your lip and melanoma on your back. You have been treated with surgery and radiotherapy and you are currently in the monitoring phase for post-treatment.
43 The relationship with the first victim is still on foot and you are now engaged to be married.
Impact on Victims
44
I must now have regard to the impacts on the victims of your offending.
The first victim has declined to exercise her right to make a victim impact statement but in the police statement she said she was terrified. That is completely understandable. She had a sore throat as a result of what you did to her. I note, and take into account to some degree, the fact that the first victim remains now supportive of you and it seems that the relationship has become a more positive one for both of you.
45 The second victim wrote a victim impact statement in which he records his feeling of insecurity and his fear that you will return to kill him. He is much shaken by what you did and I acknowledge the contents of that statement and take those matters into account.
Matters in Mitigation
Plea of Guilty
46 You entered a plea of guilty to these charges and by doing so saved the community, but most particularly, the witnesses, from the costs, both human and financial, of conducting a trial. Yours was not a classically early plea but it is still significant and attracts a significant reduction in your sentence. Your plea is finalised during the COVID-19 pandemic at a time when the delays before trial are excessive. The utilitarian benefit of removing a trial from the backlog of cases is important and acknowledged.
Remorse
47 I accept that your plea contains within it an aspect of remorse. You have also expressed your remorse to other people and I give those statements some weight, consistent with their untested status.
Psychological Material
48 A psychological report authored by Warren Simmons became Exhibit 2 on the Plea. That report was relied upon as excluding any deeper psychological problems that might be relevant to your sentence and to give general context for you and your offending. No specific legal submission arose from that material.
49 I take its contents into account in that it gives your background and personal history some colour and context.
50 Shortly before these events there were a number of very stressful events in your personal life. Your nephew, with whom you were very close, had committed suicide at 15 years old by hanging. The two of you had been close and you had seen each other often, and in that context you had been recently exposed to a scene in a film involving a suicide by hanging. You had recently received a cancer diagnosis. You and the first victim had experienced the loss of a pregnancy. You went to your local GP and changed your prescription medication from Valium to clonazepam. You consumed an unfamiliar psychiatric drug and mixed that with alcohol on the day of these offences.
51 The combination of these things, your emotional state and an unfamiliar prescription medicine mixed with alcohol, put you into a highly emotional frame of mind. I take this into account as context that gives some explanation for your behaviour, rather than as specific mitigation. No particular Verdins principles were invoked.
Prospects of Rehabilitation
52 I have considered your prospects of rehabilitation. This is by far the most serious event in what is otherwise a relatively modest criminal history. You have a number of prior convictions. These have in the main resulted in a financial penalty. You have apparently been able to repair your relationship with the first victim (she came to your plea hearing) and you have managed to stay away from the second victim entirely. You have responded well to corrections orders in the past. You have been on bail for nearly two years with no subsequent matters and I understand that you have been engaging with drug and alcohol counselling every two to three weeks while on bail. This is significant and counts in your favour.
53 You have had counselling with Kane Nuttall during your time on bail (see Exhibit 3). Your partner also describes you going to counselling consistently, and writes of her optimism about your future together. You have been assisting her run her business while you are on bail as well as taking casual work, where you can get it, as a concreter. Mr Briggs of the Apollo Bay football and netball club (see Exhibit 5) writes about your generosity in training younger players at the club, and you have become a valued member there.
54 I note that the Prosecution submitted that your prospects of rehabilitation appear to be good, and I cautiously agree.
Relevant Sentencing Principles
55 I am required to impose a sentence that both punishes you for what you did and on behalf of the community denounces this offending. It is entirely unacceptable to behave like this in your partner’s home where she is entitled to be safe. Violence against an intimate partner is particularly disgraceful because it destroys, at least for a time, that person’s experience of home: the architecture of a person's security that is both physical and psychological is, at least for a time. taken from them. It is bad for people.
56 It is properly conceded by your counsel that specific deterrence must play a role in your case in relation to both charges, and it is acknowledged that, ‘confrontational’, is an appropriate word in describing your offence of aggravated burglary.
57 The fact that you have previously offended against an intimate partner and previously offended against the second victim means that specific deterrence has a role to play in the sentence on both charges. This sentence has to bring home to you that offending in this way leads to stern punishment and denunciation and the loss of your liberty.
58 I am also obliged to impose a sentence that deters other people who might be susceptible to offending in similar ways. There has to be meaningful general deterrence in this case and I note the particularly important role for general deterrence in cases of violence against an intimate partner. The community continues to condemn this behaviour. I have taken into account the need to protect the community.
59 At the hearing there was some discussion in relation to the details of the offending against your former partner. The parties were invited to provide further information about the event. Some days after the hearing, having had no success in locating the precise police summary that was the subject of the plea, Counsel for both you and the prosecution, provided some agreed information about the case. The offences were committed on 16 July 2013. The Prosecutor submitted that this event is relevant in two respects: it is a prior conviction for intimate partner violence, and second, that you had, in detailing your previous relationships in the process of your interview with Mr Simmons, who wrote the psychological report, failed to refer to that relationship, notwithstanding that you lived with the former partner and her two children at the time of the 2013 offending. The matter was dealt with orally on the day that sentence was supposed to occur, and the email tendered and became Exhibit D. Your counsel had already conceded that specific deterrence has a role to play. I am not going to draw any particular conclusion in relation to not telling Mr Simmons about the previous relationship if that is what you did. I do not rely on Mr Simmons' conclusion to arrive at a conclusion about your prospects for rehabilitation, as it was based on apparently incomplete information about your prior history of relationships. That is a matter for me to conclude and I am assisted by the consistent submissions from the Prosecution and Defence on the point.
Totality, Concurrency and Cumulation
60 I will now have regard to totality, concurrency and cumulation. The indictment contains two relatively distinct events at two different addresses although they are closely connected in time. The aggravated burglary is complete upon entry and you are not being sentenced for anything that happens after that entry, though I am obliged to take the surrounding circumstances into account to some degree. It was submitted that the connection in time between the two events did warrant some degree of concurrency. Your barrister also submitted that a lengthier than normal parole period was appropriate in your case and I have sentenced on that basis.
COVID-19 Restrictions
61 You are entering custody during restrictions made necessary by the pandemic. Although the situation is improving, there will be privations for the foreseeable future in the custodial environment. Your ability to have visits in person is likely to be limited for some time and your access to the normal programs for sentenced prisoners is likely to be attended by uncertainty at best.
Regard to Current Sentencing Practice
62 I have had regard to current sentencing practices. Taking into account the observations of the Court of Appeal in Hogarth, I have had regard to the principles set out in Myers in terms of the factors in the assessment of the gravity of aggravated burglary. I have tried, without success, to find cases directly comparable to yours. I have referred in the course of the hearing to the case of Suckling,[3] however, it has quite distinct features from this case.
[3] Suckling v The Queen [2013] VSCA 278.
63 While the word, ‘confrontational’, has been applied to your case, I am also persuaded that the application of such a term is of marginal significance. I resolve not to be distracted from viewing this offending in its context as I undertake the sentencing process.[4]
[4]Collier v R [2018] VSCA 47 at [40].
Pre-sentence Detention
64 Pursuant to s.18 of the Sentencing Act I declare that you have served 11 days by way of presentence detention.
Disposition
65 I am now coming to the part of the sentence where I will tell you the actual numbers, Mr Trew. It was common ground on the plea that your offending can only be dealt with by way of a term of imprisonment, specifically one that attracts a non-parole period.
66 If you could stand up now.
67
On the charge of common assault you are convicted and sentenced to
20 months’ imprisonment. On the charge of aggravated burglary you are convicted and sentenced to three years' imprisonment. I direct that 12 months of the sentence on Charge 1 will be served cumulatively on the sentence on Charge 2, making a total effective sentence of four years' imprisonment.
68 I direct that you must serve two years and three months' imprisonment before becoming eligible for parole.
69 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, but had been found guilty, I would have sentenced you to a total effective sentence of five years and two months with a non-parole period of three years and two months.
Ancillary Orders
70 And I make the order for compensation and note that the application was not opposed by Mr Trew. Thank you. That is everything for sentence, so I will now adjourn the court.
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