Director of Public Prosecutions v Welch
[2024] VCC 2009
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-03063
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
CHRISTOPHER WELCH
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2024 | |
DATE OF SENTENCE: | 11 December 2024 | |
CASE MAY BE CITED AS: | DPP v Welch | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2009 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Persistent breaches of family violent intervention order – common assault – victim impact statement – domestic partner violence – ice use
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act1958 (Vic);
Sentence: Total effective sentence 2 years 5 months imprisonment; non parole period of 1 year 9 months imprisonment; 494 days of pre-sentence detection to be administratively deduced from the sentence; 6AAA declaration – 3 years 1 month imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Goding | Office of Public Prosecutions |
| For the Accused | Mr J. Hurley | Stary Norton Halphen |
HER HONOUR:
Introduction
1Christopher Welch, you have pleaded guilty to an indictment containing:
· one charge of persistent contravention of a family violence intervention order, which carries a maximum penalty of five years' imprisonment; and
· two charges of common assault, each of which carry a maximum penalty of five years' imprisonment.
2A related summary offence, of failing to comply with direction to provide the PIN code to a mobile phone was uplifted into the hearing of your plea, and you pleaded guilty to that charge and have permitted me to sentence you in respect of that charge, which carries a maximum penalty of two years' imprisonment.
3The circumstances in which you came to commit those offences were outlined in the Summary of Prosecution Opening for Plea dated 12 August 2024 (Exhibit A).
4The prosecution also tendered and relied upon:
· Prosecution Submissions on Plea dated 4 December 2024 (Exhibit B);
· Victim Impact Statement (Exhibit C); and
· Four police summaries in relation to prior matters of Informants Mayoll, Lopez (x 2), and Willis (Exhibit D).
5In addition to the matters developed in oral argument, your counsel relied on:
· Plea submissions dated 16 October 2024 (Exhibit 1);
· Neuropsychological Report dated 9 October 2024 (Exhibit 2);
· Certificates of completion of courses whilst in custody (Exhibit 3);
· Bundle of character references (Exhibit 4); and
·
Letter from Anishka Chaudhary, AOD Group Program Facilitator, dated
14 June 2024 (Exhibit 5).
6I have taken all exhibited matters into account in determining my reasons for decision and the ultimate orders, as well as having reflected carefully upon the matters advanced by counsel in oral argument.
Circumstances of the offending
7At the time of your offending, in July 2023, you were aged 30 and had on or about 10 June 2023 completed a 40 day sentence of imprisonment for offences of violence and intervention order breaches, that you committed against the same complainant. The intervention order which you had breached, leading to that sentence, and which you again persistently breached in the matters before me, had been imposed against you by the Frankston Magistrates' Court in February 2023. Your former partner, Ella Walker[1], then aged 29 years, was named as the Affected Family Member. The two of you had been in a volatile relationship between 2016-2022.
[1] A pseudonym.
8The conditions of the Order were that you:
· Not commit family violence against the protected person;
· Not damage her property;
· Not locate, follow or surveil her;
· Not publish any material about her;
· Not contact or communicate with her by any means;
· Not approach or remain within five metres of her; and
· Not go or remain within her residential address at the time that the order was made, or any other place where she lived.
9Ms Walker moved to an address in Nepean Highway, Seaford, on 7 July 2023.
10During the ten day period between 26 July 2023 and 5 August 2023, you persistently breached the intervention order by:
· Calling her on her mobile phone during that period 110 times;
· Sending text messages to her 110 times during that period, using your own phone number;
· Attending her residence on 31 July, twice;
· Whilst you were at her residence on the two occasions on 31 July, assaulting her in a manner that I will describe shortly; and then
· After having assaulted her on the two separate occasions exchanged further text messages with her between 2 and 5 August (which are included within the total of 110 messages), which I will also summarise.
11This behaviour, all of which was in breach of the Intervention Order imposed by the Magistrate, is the offending the subject of your Charge 1 of Persistent Breach of Family Violence Intervention Order.
12Returning to July 2023, on that day, in the morning, Ms Walker was working from home in her bedroom on her laptop computer.
13At approximately 10.00 am, you approached her, grabbed her by the arm and attempted to pull her from the property, saying you wanted her to go to a nearby beach with you. Panicked, she dropped to the floor, to prevent you from dragging her from the property. You kicked her repeatedly to the left leg, shoulder and ribs which winded her, which is the offending referable to your Charge 2, of common assault, as well as constituting a particular of your Charge 1, as I have mentioned.
14You then left the property. She called your phone at 1.17 pm, and sent messages to you throughout the afternoon, and made two failed attempts to call you at 4.31 pm.
15Then, at approximately 5.00 pm, whilst she again worked from home in her bedroom, you returned to the property and approached her. She yelled at you and demanded you leave. You then struck her numerous times, and placed your hands around her throat, strangling her. She fought back, scratching you to the left side of your face, causing a laceration. You dropped her to the floor, and grabbed a cooking pot, and threw it at her, and you then grabbed a pot plant and threw it towards her. You threatened that if she called the police and you were imprisoned, that it would be '10 times worse' when you were next released. This is the offending referable to your Charge 3, of common assault, as well as constituting a particular of your Charge 1, as I have mentioned.
16At 5.17 pm, you attempted to call the complainant, then you called her at 9.05 pm, with the call lasting 7 seconds.
17As I have mentioned, you then sent further text messages to her during the period between 2 and 5 August 2023. I have been provided with those messages as a 16-page annexure to the Summary of Prosecution Opening for plea. In brief summary, you told her that you had tried to leave her alone, you were struggling mentally and felt low and were in the wrong, and that you loved her and did not want to fight. She replied that you were over and that she would drop your clothes at the front, to which you said, 'U not even gunna speak to me,' and when she said no, you told her 'Plz give me the decency and talk to me.' She summarised what she saw as many of your poor qualities, and said that she was done, and you replied with a series of texts focusing on your needs, which led to a request that you leave her alone, and she told you, 'you are evil'. You persevered in messaging her, and called her numerous times during this sequence of exchanged messages but she did not answer, and you messaged her requesting that she call you. You told her, 'If I go to gaol again I won't forgive you'. As I have mentioned, this is part of the offending referable to your Charge 1.
Arrest and interviews
18On Saturday 5 August 2023, at approximately 3.53 am, police executed a search warrant at your residence in Scarlet Street, Mordialloc. You were found hiding inside the floor cavity in the bedroom wardrobe, and were arrested.
19Police searched your bedroom and located an Apple iPhone consistent with the number that you used to message the complainant in breach of the Intervention Order, in the floor cavity where you were hiding in the cupboard
20You were the person named in a direction under s 465AAA of the Crimes Act 1958 (Vic) with relevant knowledge of the mobile phone seized. You were informed by Police of that direction, and its terms, and that it was an offence to fail to comply with the direction. You failed to comply with the direction and did not provide your personal identification number to access the mobile phone that had been seized. This is the offending referable to your summary offence.
21You were conveyed to the Frankston police station and were interviewed by police.
22You falsely denied assaulting Ms Walker and told police that you believed that the Family Violence Intervention Order had been revoked. You also told police that you assisted the complainant to move into her new address and admitted visiting her frequently at the address.
Effect on the victim
23I have been told that the complainant experienced injury in the course of your offending, though it is not alleged that you intended or foresaw that consequence, and that she suffered shock, anxiety, and fear that you would return to her home.
24I have received a Victim Impact Statement that she prepared, in which she told me how volatile your relationship had been, and that you had repeatedly apologised for your behaviour and promised to change, but would return to abusive attitudes. You have diminished her well-being and health, her anxiety and stress affects her sleep patterns, and sense of self-worth. She has started to rebuild her life from the trauma that you have caused her. I accept and take into account that your conduct has caused lasting trauma and distress to her.
Plea of guilty and timing; remorse
25You were arrested and charged on 5 August 2023, and the matter proceeded through the committals stream of the Magistrates' Court, with witnesses including the Complainant cross-examined at committal. You were committed to stand trial in this Court in December 2023 on charges including those more serious than the charges to which you have pleaded guilty. Resolution discussions continued. The matter resolved after I provided an indication as to the sentence I would be likely to impose if you entered pleas of guilty to the charges which have proceeded, and you accepted this indication and entered pleas of guilty in July 2024. These pleas were entered at the mid-stage of proceedings, but prior to the Court setting the matter down for a jury trial. I mitigate sentence on the basis of these pleas, their utilitarian value, and the timing of the pleas.
26I turn to the issue of your remorse. Whether you experience any genuine contrition for the true circumstances of your behaviour is very difficult for me to evaluate. In relation to the issue of remorse, you told Ms McLaren, Neuropsychologist:
“[You] 'massively' regretted [your] actions as [you are] not a violent person, and that it 'was over nothing really … hated myself for it'. [You] also commented that [you were] 'massively' remorseful, and expressed 'hurt' that [you] could not show this to his ex-partner (e.g., write her a letter)”.
27Ms McLaren's report then turns to your recognition that your actions may affect aspects of your future, such as your employment, and acknowledged the impact that your behaviour had on your family. There is a focus in your discussion on the effect of the convictions upon you, rather than your true remorse or regret for your offending.
28One of your referees speaks to the same issue – Matthew Gaut has told me that you indicated that you were very remorseful and sorry for what you did, and 'Due to the offence he feels ashamed for his job loss and his reputation to his family and friends & employer'. Others speak more generally about the mistakes that you have made.
29As best I can interpret the information, I am prepared to attach some modest mitigation of sentence in reflection of your remorse for your behaviour, but I consider that the more prominent expression by you is regret for the consequences of your behaviour upon you. I also consider that you are not being truthful to yourself as describing yourself as not a violent person and looking at your prior history and these offences, I consider that you are a violent and indeed a selfish and controlling person in your dealings with Ms Walker.
Personal circumstances
30In preparing the summary of your circumstances, I have had the benefit of detailed written submissions, Ms McLaren's report, a number of character references, and your criminal history.
31You are now 31 years of age and were 30 at the time of your offending. You were the eldest of two children born to your parents, and you also have two younger half-sisters. Your parents exposed you to heroin usage by them, and family violence, you moved frequently, and they then separated after your father bashed your mother and she shot him, when you were four. You were shuffled between your parents' houses and then your Nan and Pa took custody of you, you believed, when you were six or seven (your Nan recalls that it was much earlier than this), and I am told that they are good people who showed you love and care. Your father died of a heroin overdose when you were 14.
32You completed Year 11 with some difficulties in learning and behaviour, but you were good at sport. You sustained a series of concussions with loss of consciousness playing football and basketball, in primary school, and then later in early adulthood.
33You had worked part time throughout high school, and after you left, you then started working in stonemasonry, and later moved into flooring. I understand you have got a good work history.
34At 26 you were diagnosed with epilepsy and experienced seizures, and you now take Epilim twice daily. You have also experienced migraines.
35In 2015, you obtained a mental health plan for depression with low motivation, low concentration, low mood, anxiety at times, and disturbed sleep. The plan referred you to psychological counselling, and you failed to attend three scheduled appointments.
36You started drinking at 12, and drank occasionally in your teenage years, and you drink more when you are working.
37You started consuming marijuana at 14, and in adulthood your usage escalated to 1-3 grams per day. You have tried ecstasy and speed, and tried ice at age 18, and used a couple of points at a time from Thursdays to Sundays for a couple of years before ceasing for a time, and you told Ms McLaren you last used ice on 30 July 2023 which coincides with your offending. You have used Xanax recreationally. You have completed courses satisfactorily relating to drug addiction whilst on remand.
38You have a criminal history comprising six separate Court appearances, dating back to March 2010. You appeared in the Magistrates' Court on three occasions for minor matters. Then, on 8 September 2021, you were sentenced to a combination of 170 days' custody to be followed by a community corrections order for offences including four charges of persistent contravention of family violence intervention order, six charges of contravention of family violence intervention order, three charges of assault, and commit indictable offence whilst on bail. Another appearance in May 2022 resulted in a good behaviour bond, and then in May 2023 you were sentenced to the 40 days' imprisonment to which I have previously referred, which as I have said also involved intervention order offending and offences of violence. The most recent sentence related to your offending against the same complainant. Concerningly, it appears the sentence before that related to the complainant and your sister.
39Your referees consider you to be a good sportsman, and a good worker.
40Ms McLaren assessed you, and in her expert opinion, you have a full-scale IQ of 90, which is within the average range, with more modest performance on tests of intellectual functioning, and understanding the rules of social conventional behaviour, and better results in tests of your immediate auditory attention span, and your speed of information processing. On current assessment of your mood, you endorsed symptoms suggestive of normal stress and depression, and moderate anxiety. She considers it unlikely that you sustained any significant brain injury in any of the incidents involving your history of concussions.
41In her expert view, given your report that you were under the influence of ice at the time of the common assault offences, this would likely have temporarily compromised your cognitive functioning, in combination with the parts of testing in which you showed some compromise.
42Ms McLaren expressed the opinion that it was possible that the cognitive difficulties that I have endeavoured to summarise may have impacted somewhat on your reasoning and decision making at the time of your offending; and she acknowledged that your consumption of ice at the time of the common assault offenses would have likely temporarily compromised your cognitive functioning.
43You have skill and experience as a worker, and the support of your grandparents, who appear to be people who can assist you in providing you with support and moral guidance after your release. These factors are supportive of your rehabilitation. However, your last two gaol sentences did not deter you at all from repeating the same behaviour. You consumed ice, which coincided with your offending in assaulting the complainant. You also have poor insight into your behaviour, and there is a lack of understanding that your offending is truly your own fault, and your own responsibility. I base this observation on remarks which appear throughout the material that I have been provided, from your responses in your police interview, to comments in the reference material, to your discussion with Ms McLaren, which attribute some responsibility to your ex-partner continuing to participate in your toxic relationship. Her willingness to remain in contact with you after your release from the 40-day sentence does not allow you to shed blame by pointing to her behaviour.
44I am guarded about your prospects for rehabilitation.
Objective gravity of your offending; moral culpability
45You showed yourself, again, to be a man indifferent to an order of the court intended, as it was, to control your instincts to contact, approach, and be violent towards your ex-partner. Your offending, as I said, occurred over a 10-day period shortly after you were released from gaol for similar offending. You were indifferent to the order made by the magistrate restricting your contact and behaviour towards the complainant. Even when she resisted your messaging, you persevered. You assaulted her in her home when you were drug affected. When arrested, you disobeyed another order made by a person in authority.
Current sentencing practices; purposes of sentencing; sentencing submissions
46In respect of your indictable offences, I accept and take into account that the three offences occurred in close succession in time, and indeed Charges 2 and 3 are particulars of Charge 1. I intend to have proper regard to the totality principle in structuring my sentence on those offences, and I will impose an aggregate sentence, which was not opposed by either counsel. I have helpfully been provided with a number of cases involving some similar circumstances and some differences, which I have read carefully. Your behaviour was motivated by your own profound self-interest and your sense of entitlement to do as you pleased, and your sense of possessiveness and control towards the complainant. You apparently minimise the moral wrongness of your conduct by pointing towards the complainants' behaviour. I do not though. I focus on what you thought and intended at the time. Your offending was persistent, though this does not aggravate your offending as it is an element of Charge 1. I find that you were affected by ice at or shortly prior to your commission of Charges 2 and 3.
47Your offences, of persistent breach of intervention order, and common assault occurring in the context of domestic partner violence, are each of unfortunate prevalence, and I am aware of the important statements of principle which bind me in this difficult exercise. I must emphasise general deterrence, punishment and denunciation in the sentences that I must pass. I must protect the community from you, including protecting women whom you consider have wronged you.
48Having regard to your criminal history, which includes relevant, recent offending involving multiple breaches, some persistent, of intervention orders imposed by other courts, and offences of violence and control, I consider that a very significant measure of specific deterrence is required.
49I now pass the following sentences. Could you please stand, sir.
50On Charges 1, 2, and 3 – you are convicted sentenced to an aggregate of two years and four months' imprisonment.
51On the related summary offence – you are convicted and sentenced to three months' imprisonment, one month of which I order be served cumulatively on the other sentence.
52This gives a total effective sentence of two years and five months' imprisonment. I order that you serve a minimum of one year and nine months before parole eligibility.
53I was told of the pre-sentence detention, but I will just double check. Is it 494 days?
54MS GODING: Yes, excluding today, Your Honour.
55HER HONOUR: 6AAA declaration will be that if you had pleaded not guilty to offences, but were found guilty following jury trial, I would have imposed a sentence of three years and one month.
56Are there any ancillary orders sought?
57MS GODING: No, Your Honour.
58HER HONOUR: Thank you.
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