Director of Public Prosecutions v Welch, Steven
[2012] VCC 1785
•14 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
Case No. CR-12-00871
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN WELCH |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 13 November 2012 | |
DATE OF SENTENCE: | 14 November 2012 | |
CASE MAY BE CITED AS: | DPP v Welch, Steven | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1785 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence – plea
Catchwords: Common law assault – intentionally cause injury – domestic violence – 28 year period – principles of general deterrence and denunciation applied
Legislation Cited:Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Smith v R [2010] VSCA 192
Sentence: Total effective sentence of 18 months imprisonment with a minimum non-parole period of 12 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. J. Moore | Mr B. Horsburgh (Office of Public Prosecutions) |
| For the Accused | Ms D. Price Mr T. McCaughey | Trish Devlin Lawyers |
HIS HONOUR:
1 Steven Welch pleaded guilty, in Indictment No. 11593834, to ten charges of common law assault, the victims being, as to nine charges, his then wife, Diane, and his sister-in-law, Anna (Charge 6).
2 The penalty insofar as the charges encompassed from 1-9 at the time was at large, and the penalty in regard to Charges 11 is such that a maximum of five years is prescribed.
3 Insofar as the one charge, that is not a common law assault, that is a charge (Charge 10) of intentionally causing injury to his son, Steven. Steven was ten years at that time.
4 By consent, the learned prosecutor tendered the prosecution summary. There is, of course, a very vibrant social history surrounding these crimes. We are talking about a twenty-eight year marriage and these assaults, all be they serious, need to be put in proper context. Six of the charges occurred in the period 1982-1986, three of the charges occurred in 1988-1989, the offence against Steven occurred in 2001, and the final assault occurred in 2009.
5 As has been put by the learned prosecutor, this plea involves full admissions by Mr Welch to the allegations made by his wife. I do not in any way disregard her comments in her victim impact statement, of the social problems of a wife living in these circumstances. I think she describes it by way of living life on an eggshell. However, this Court has to look at what crimes occurred and over that considerable period of twenty-eight years, in regard to the charges admitted to - that is, the nine charges relating to Diane - the Court is dealing with occasions, it would seem, when he absolutely lost control and committed assaults.
6 The other point to be made - and again this is a relative point, because this Court, unfortunately, sees far more grave assaults in these circumstances, assaults where people have bones broken and permanent injury and extensive treatment required in hospital - is there does not appear, in regard to any of these matters, to be any permanent physical results. I stress the word "physical".
7 There is also, in regard to the seriousness of these offences, when looked at objectively, quite a variation in the charges. No doubt, the most serious offence is the assault committed on his son, who was a ten year old at the time. It is described in the summary, accepted by both counsel, as a severe beating of his son at the time, and one notes in the summary the injuries referred to, the fact that the mother was obliged to keep him away from school and the grandmother's comments as to the injuries that she saw.
8 Charge 3 involved multiple punching and kicking of a pregnant woman. Charge 8 involved multiple hits of his wife with his fists. The rest were what might be described as single episode assaults. Charge 9 is one punch to the body which knocked her over. Charge 1 was a striking from behind. Charge 2 was pushing her head into a car door. Charge 7 involved circumstances that are somewhat difficult to understand but somehow, from the back of the truck, he was able to kick his wife through the window of the truck. Charge 11 involved throwing her out of the door of her home. Charge 4 involved quite a frightening assault apparently, in the sense of him pointing a firearm at his wife. Charges 5 and 6, involving both his wife and his sister-in-law at the time, involved him threatening assaults and using threatening language and having his hand formed as a fist, in a manner that he was about to assault both of those persons. As I say, objectively, there is much variation in the seriousness of the charges.
9 There is no excuse for such behaviour and nor was any proffered by counsel on behalf of Mr Welch. As a principle, such behaviour cannot be condoned and indeed must be condemned by this Court. The whole community is currently involved in discussions about other behaviour which is best seen occurring in the Dark Ages, no doubt the community has to turn its attention to domestic abuse as well, although there has been significant community reaction to this.
10 As Beech J said in Smith v R [2010] VSCA 192, at [11]:
"This Court has said on many occasions that domestic violence will not tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition, which must be and must be seen to be condemned by the Courts."
11 This applies to all of the charges in this matter committed against your wife and son.
12 Given the serious nature of the assaults, in particular in regard to Charges 10, 3 and 8, the usual appropriate punishment is immediate imprisonment. Here, there are a number of factors, however, to take into account.
13 First, is the extensive time span of the offending. This comes about, and the non-reporting of same, because, like sexual offending, the social pressures in our community are such that persons in the complainant's position are shamed by this behaviour and are not given the appropriate social support. No doubt, there were genuine attempts to try and save the marriage, given there is a responsibility to children, and unfortunately this leads to the continuation of such circumstances.
14 Some people say, "Why stay in such a relationship?" As I say, there is no criticism in this, but it is the social responsibilities to children, the concern about what people will think, that leave women in these longstanding situations.
15 The second matter concerns, no doubt - and it really relates to the first - the fact that there is and has been, in the past, no social supports for persons in the complainant's position. Safe houses and refuges have only more recently been supplied.
16 Coming to Mr Welch's plea, there is no doubt, as was confirmed by the prosecutor this morning, that this can only be described as a valuable plea. Albeit that the charges are indictable and there was no time limit, it is clear that Mr Welch has accepted totally all of the allegations put by the complainants.
17 The plea is also to be seen as particularly utilitarian. As advised by the learned prosecutor, had this matter gone on, we might have had a trial involving some three weeks. One can only speculate as to the heartache and torture of reliving these matters that the Court and witnesses would have been exposed to.
18 I accept, as Mr Welch's counsel put, that the plea in these circumstances demonstrates genuine remorse. I also take into account all of the matters set out in the victim impact statement by Diane. It is, of course, the horror tale of a woman who had to live with an abusive husband. However, it is important to remember that I am not here to right a social wrong. I cannot change the social mores of the community. The justice system prescribes that I may sentence only for these criminal charges.
19 In regard to Ms Price's plea, she pointed out that Mr Welch was now forty-eight, and that prior to the police being involved, he had, of his own volition, decided to seek marriage counselling. He sought that in 2007 and in 2009. As Ms Chomley said, who prepared the report in Exhibit 1, in her oral evidence to the Court, he admitted that there had been a history of matrimonial assault, and continued the counselling on the basis that such assaults would not continue, and if it did, that was to be the end of counselling.
20 All of this counselling occurred before he was approached by the police. It is clear, however, that whatever hopes the parties may have had of counselling, any chance of the marriage surviving disintegrated in May 2009, when their daughter, Crystal, met her unfortunate death.
21 Insofar as Mr Welch's priors are concerned, they are not substantial. They do, however, include assaults, and I am told that they relate to assaults on women. However, the point needs to be made that they took place when he was only eighteen years old, some twenty-eight years ago.
22 In Court there was a substantial body of support for Mr Welch. Ms Clark, his current partner, gave evidence. She told the Court, in support of the report prepared by the psychologist, Mr Jago, that as far as their relationship is concerned, the types of behaviour detailed in these crimes does not occur. She said, on oath, that over the two and a half years they have been together, there have been no instances of this type of behaviour.
23 Because of the experience of the Courts in these matters and the reading of social documentation, one is naturally sceptical about such evidence when you hear of the types of assaults committed upon his wife. However, I accept Ms Clark's evidence. It is supported by the presence here of his sister, his brother-in-law, cousins and indeed his son, who was subject to such a severe assault at the age of ten, and is here in Court today, supporting his father.
24 If one accepts the truth of Ms Clark's evidence, Mr Jago says in particular at p.5 of his report, Exhibit 3, of August 2012, that: "what Mr Welch has effected adaptive change, that he is doing well in his new relationship and that he is able to contain the tendency to anger behaviour."
25 Again, in treatment with Mr Jago, Mr Welch admitted the assaults upon his prior wife. He expressed remorse and indeed, Mr Jago's opinion was, provided he continued to alter his adaptive behaviour, then things were positive as to the future.
26 As I say, Ms Clark gave evidence of their relationship, now lasting some two and a half years, of the connection between Mr Welch and the son, Kie, her joint dependence upon him and the fact that they are jointly responsible for a mortgage. The Court is not unaware of the difficulties that prospects of sentencing cause to people. It is an unfortunate fact of life.
27 As to sentencing, the prosecution submitted that there was no alternative in this case but for a sentence of immediate imprisonment. The prosecution submitted that the appropriate sentence should be somewhere in the range, by way of totality for all the offences, of between three and four years' gaol, with a minimum period before being eligible for parole of between eighteen and twenty-four months.
28
Counsel on behalf of Mr Welch submitted, in the circumstances, that I should consider, given the change that has been effected and the support for
Mr Welch, an alternative to immediate imprisonment by way of either a suspended sentence, which is possible in these matters, and/or a Community Corrections Order. I told Ms Price that I did not consider such to be appropriate, but that I would give the matter consideration overnight. Unfortunately, haven given the matter some considerable consideration, I have not changed my mind.
29 I am not immune to the circumstances and effect upon Ms Clark and her family, and indeed I note in particular, as I said, Steven's support of his father. However, there is a price to be paid for behaviour of this sort. One of the principles of sentencing is that people must be given the appropriate punishment in the circumstances. In my view, to impose anything but an immediate term of imprisonment would be totally inappropriate in this case.
SENTENCE
30 On Charge 1, you are convicted and fined $500.
31 On Charge 2, you are convicted and fined $500.
32 On Charge 3, you are sentenced to a period of imprisonment of nine months.
33 On Charge 4, you are sentenced to a period of imprisonment of one month.
34 On Charge 5, you are convicted and fined $500.
35 On Charge 6, you are convicted and fined $500.
36 On Charge 7, you are convicted and fined $500.
37 On Charge 8, you are sentenced to a period of imprisonment of six months.
38 On Charge 9, you are sentenced to a period of imprisonment of two months.
39 On Charge 10, being the severe assault upon your ten year old son, you are sentenced to a period of imprisonment of twelve months.
40 On Charge 11, you are sentenced to a period of imprisonment of two months.
41 As suggested by the learned prosecutor, I accept that the sentence on Charge 10 should be the base sentence. To that sentence, I order that four months from the sentence imposed on Charge 3, and two months from the sentence imposed on Charge 8 are to be served cumulatively, making a total aggregate sentence imposed on Mr Welch of eighteen months imprisonment.
42 The totality of the fines are $2500 and I grant Mr Welch an eighteen month stay in regard to those.
43 In regard to an order under s.11 of the Sentencing Act 1991, that is, the minimum period to be served before you will be eligible for parole, Mr Welch, I order that you must serve twelve months in gaol.
44 I want to make something very clear to you and I would stress to you how important it was for you that you pleaded guilty in this matter. I am required by Parliament to declare what would have been the consequences had you not pleaded guilty. They would have been considerable. In my view, your plea in this case, for all the reasons that I have mentioned, carries with it the need for an appropriate and substantial discount of sentence. Had you not pleaded guilty, I would have sentenced you to a head sentence of thirty-six months or three years, with a minimum of two years. Because of your plea, you now have to serve a period of imprisonment of eighteen months with a minimum of twelve months.
45 I order that the one day Mr Welch has served by way of pre-sentence detention be deemed as part of this sentence, and that declaration be recorded in this Court.
46
To bring it down to laymen's terms, Mr Welch, your total sentence is one of
eighteen months and the term that you must serve before being eligible for parole is one of twelve months.
47 Mr McCaughey, were there matters you wanted to raise?
48 MR McCAUGHEY: Yes, there is, Your Honour, if I may. There is some custody management I wish to raise.
49 HIS HONOUR: Yes?
50 MR McCAUGHEY: This is the first time that Mr Welch has been in prison, as Your Honour should be aware.
51 HIS HONOUR: Yes, I am aware of that.
52 MR McCAUGHEY: He has a history of attempting suicide. There have been two occasions in his life when he has attempted suicide.
53 HIS HONOUR: Yes, we heard that yesterday.
54 MR McCAUGHEY: Yes. He takes medication for a heart condition, tachycardia. I am told by his girlfriend that the medication is called Morten. He also suffers from overactive thyroid gland and takes medication for that. They could not provide me with the name of that.
55 Mr Walsh also tells me that he cannot read and write. I believe that would also be relevant to his custody management. I believe those are the principal issues.
56 HIS HONOUR: Yes, I will make sure that all those matters are put on the sentencing remarks and that the officers today have a copy of that, and those matters are conveyed as part of the sentence.
57 MR McCAUGHEY: Thank you, Your Honour.
58 HIS HONOUR: They will be on the sentencing remarks.
59 MR McCAUGHEY: Thank you.
60 HIS HONOUR: Mr Prosecutor, any other matters?
61 MR MOORE: No, Your Honour.
62 HIS HONOUR: Yes, take Mr Welch down.
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