Director of Public Prosecutions v Whitmore

[2017] VCC 1762

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01599

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT WHITMORE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	27 November 2017
DATE OF SENTENCE:	28 November 2017
CASE MAY BE CITED AS:	DPP v Whitmore
MEDIUM NEUTRAL CITATION:	[2017] VCC 1762

REASONS FOR SENTENCE
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Subject:

Catchwords:  Threat to Kill, Cause Injury Recklessly, Burglary and Criminal Damage

Legislation Cited:
Cases Cited:
Sentence:  Total Effective Sentence 3 year/s, 2 month/s imprisonment
  Non-Parole Period of 2 year/s imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry
For the Accused	Mr J. Toal

HIS HONOUR:

1Scott Whitmore, on 27 November 2017 you pleaded guilty to the four charges at this court.  Four charges on the indictment No.H10486244 are as follows: 

Charge 1, making a threat to kill Bronwyn Pearson.  This charge has a maximum penalty of ten years' imprisonment; 

Charge 2, burglary.  This charge has a maximum sentence of ten years' imprisonment; 

Charge 3, recklessly cause injury to Bronwyn Pearson.  This charge has a maximum penalty of five years' imprisonment; and

Charge 4, criminal damage to property.  This charge has a maximum penalty of ten years' imprisonment.

2You have also consented to having two related summary offences heard at this plea.  The summary offences are two contravene charges for orders made under the provisions of the Family Violence Protection Act. Each of these charges has a maximum penalty of two years' imprisonment. You also consented to having an unrelated charge summary offence heard at your plea pursuant to the provisions of s.243 of the Criminal Procedure Act.  The charge was unlawful assault on your sister.  The maximum penalty for that offence is three months' imprisonment or 1500 penalty units.

CIRCUMSTANCES OF OFFENDING

3I turn to the circumstances of your offending.  The prosecution read out a summary of prosecution opening.  I will refer to that summary extensively in the course of this sentence.  At the time of these offences you lived at 14 Leongatha Road in Korumburra.  Your victim, Bronwyn Pearson, lived at 7 Anthony Court in Korumburra.  By way of history you and Ms Pearson were in a relationship for approximate five years between 1993 and 1998.  In the three months prior to this offending you had resumed a relationship but were not living together.

4During the afternoon of 19 February 2017 you had been texting abusive messages to Ms Pearson.  The messages related to incidents that had occurred during your previous relationship in 1993 to 1998.  At approximate 10 pm on
19 February 2017 Ms Pearson went to bed, telling you not to come over.  At approximately five minutes later you arrived at Ms Pearson's address at
7 Anthony Court in Korumburra.  You had driven her car to the residence and had parked the vehicle in the garage.  After hearing the garage door open
Ms Pearson got out of bed and has gone to the door which leads between the garage and the kitchen area of the house.  She opened that door and remained in the doorway to prevent you from entering into the house.

5You pushed your way past Ms Pearson and walked into the kitchen.  You then continued your verbally aggressive approach towards her and stated you were not going to leave. You threatened to kill her, if she told anyone about what had happened.  This has caused Ms Pearson fear, as she believed that in your state, she assessed you to be drunk and under the influence of drugs, and that you would carry out the threat.

6You have then grabbed her by the biceps and pushed her up against a kitchen cupboard several times. The force used by you has caused bruising to her arms and pain to her back.  She has then moved away from you and sat at the kitchen bench.  You then stood over her, shaking your fist at her and given her the impression you were going to punch her.  You have then picked up a near full bottle of Pepsi which was on the kitchen bench and thrown the bottle in her direction.  The bottle hit her on the right shoulder, causing her pain.  You returned to the garage whilst yelling abuse and threats to her.

7Ms Pearson was standing in the doorway between the kitchen and the garage, again trying to talk to you and prevent you from coming back into the house.  You have then walked up to her and head butted her, making contact with her forehead and you grabbed her by the scruff of the neck and began to shake her.  The yelling and abuse continued with you remaining in the garage until approximately 4 am, when you have taken her to the vehicle and had her drive you to your house so you could go back to work.

8While at your house Ms Pearson complained of chest pains.  You were aware that she had suffered from a heart murmur and approximately 5 am that day you drove her to the Korumburra Hospital.  Ms Pearson was admitted to the hospital for observation and released at 2 pm.  That was on 20 February 2017.  Due to her fear of you, Ms Pearson did not make any comment to the medical staff at the hospital about what had happened.  You then drove her back to her residence at approximately 2.30 pm.  You left her vehicle in the garage and walked home.

9As if that was not good enough, in the day time you continued on with your offending behaviour.  Between 2.30pm and 3.30 pm on 20 February 2017 you rang Ms Pearson and during one of those conversations you threatened her that you could chop her head off with a knife.  At approximately 3.30 pm in an aggressive state you have walked around to Ms Pearson's house.  You were on the phone to her and stated that she had better open the door because you were on the way over.  A short time later Ms Pearson could hear you walking towards the front door of the house.  As you started to kick the door of the house she ran out the back door of her residence, jumped over the fence to get away from you.  She then rang the police.

10You have kicked the front door several times, breaking it open.  You have then entered the house and walked around the house, looking for Ms Pearson.  Being unable to locate her you have then grabbed a glass from the kitchen bench and smashed it on the kitchen floor.

11You were arrested at your home on 20 February 2017 and interviewed by police.  You admitted the following things in the course of the interview: 

(1) You drove Ms Pearson's vehicle to her place the night before;

(2) You had a verbal argument with Ms Pearson in her garage;

(3) You admitted pushing and shoving Ms Pearson;

(4) You could not recall threatening to kill Ms Pearson;

(5) You did not recall grabbing Ms Pearson or pushing her against the kitchen cupboards;

(6) You stood over her and shook your fist at Ms Pearson;

(7) You did not recall head butting Ms Pearson;

(8) A Coke bottle, as you have described it, hit Ms Pearson in the back;

(9) Chest pains suffered by Ms Pearson were as a result of the stress of the incident generally;

(10) You took Ms Pearson to the Korumburra Hospital;

(11) You went to Ms Pearson at her place on 20 February 2017 and that you were angry;

(12) That you kicked the front door of Ms Pearson's house in so you could get into the home;

(13) You smashed a glass in the kitchen;

(14) You were under the influence of ice, alcohol and marijuana when all this happened; and

(15) Your memory of the incident was affected by your drug abuse.

12In relation to the related summary charges you were issued with a family violence safety notice at 8.10 pm on 20 February 2017, which was returnable at the Korumburra Magistrates' Court on 23 May 2017.  You were served with a family violence safety notice at 9.30 pm on 20 February 2017.  The protected person in that notice was Bronwyn Janet Pearson.

13The family violence safety notice included the following prohibitions:
(1) committing family violence against a protected person, that is Ms Pearson; (2) approaching, telephoning or otherwise contacting, including email or text messages of the protected person, unless in the company of a police officer; (3) being anywhere within 5 metres of Ms Pearson; and
(4) being within 200 metres of 7 Anthony Court, Korumburra or any other place where Ms Pearson lived.

14You were handed that notice at 9.30 pm.  You were released from police custody at 9.51 pm on that evening.  At 11.16 pm on that same day you started texting her and you continued to do so until about 8.30am the next day.  There were 34 text messages to Ms Pearson and 11 attempts to contact her by phone.  The messages were not of a threatening nature but caused Ms Pearson concern.

15At about 7.30 am on 21 February 2017 you have driven around to
Ms Pearson's address at 7 Anthony Court Korumburra and entered her home through the back door.  At the time the residence was occupied by Ms Pearson and her daughter.  She got out of bed on hearing a noise and observed you in the family room.  She requested you to leave the residence and returned to her bedroom, locked herself in the en suite part of the bedroom and rang 000.  You attempted to gain entry to the en suite before leaving when you were told that the police were going to attend.  You were arrested at Leongatha on
21 February 2017 and interviewed.  You admitted service of the Family Violence Safety Notice and that you understood that you were prohibited from contacting her or attending her address.  You admitted attending the residence of
Ms Pearson, claiming your purpose for doing it, so as to pass on a message from the hospital.  You were then remanded in custody until 24 March 2017.

16The unrelated summary charge, is an unlawful assault on your sister. On 24 August 2016, you attended the residence of your sister, Christine Whitmore to stay a night at her place.  Also staying the night was a friend of your sister by the name of Nathan.  When you arrived at your sister's place you were drinking alcohol and you became aggressive before passing out on the floor.  The next day, 25 August 2016, another friend of Christine Whitmore's known as Deb, arrived at the residence.  Whilst Christine Whitmore was in her bedroom you entered in a foul mood and said, "You'd better get the smokes now, bitch".  You have then walked up to your sister while she was seated on her bed and punched her in the head, striking her on the right cheek, below the eye.  The punch forced her back onto the bed.  You then left the residence.

17There is no victim impact statements filed in these matters.  I note your sister, Christine Whitmore, was present in court at your plea to support you.

YOUR PERSONAL CIRCUMSTANCES

18I turn to your personal circumstances.  You are 41 years old.  You have a long and extensive criminal history which commenced in 1999 and continued until February 2015.  On that last occasion you were ordered to serve a 12 month community corrections order for very similar offending to the charges before this court.  In total you have had 19 separate court appearances between 1999 and 2015.  The dispositions have included terms of imprisonment, CCOs, ICO, suspended sentences and fines.  You have pleaded guilty to the same type of offending in this court.

19You are the eldest child of four in your family.  Your parents are still alive.  You have two brothers and a sister. As I said before, I note your sister is the victim of the unrelated summary charge before this court.  You have little to do with your brothers.

20You were educated to Year 10 at Noble Park Tech School.  You then completed a cabinetmaking apprenticeship and worked in that area for approximately ten years.  You quit that work to take up employment in the security industry, which lasted for a period of some seven years.  Since that time you have worked as a farm labourer.  At the time of your arrest for these matters you worked for Select Produce over in Korumburra.

21You were in a relationship with Ms Pearson between 1993 and 1998.  Tragically in 1996 you and Ms Pearson were involved in a transport accident.  At the time of the accident Ms Pearson was six months pregnant with your first child.  As a result of the accident your child miscarried.  Your child would have been
21 years old this year.  You have unresolved grief issues as a result of that tragedy and are yet to deal with them.  Late in 2016 you rekindled your connection with Ms Pearson.  You lived separately in your own homes in Korumburra.  That relationship ended with these offences.

22You have been assessed by Dr Linda Borg, a clinical neuropsychologist.  She prepared a report dated 22 October 2017.  Dr Borg conducted a number of neuropsychological examinations of you.  In particular, she noted the longstanding use of cannabis and alcohol, which she has noted to be some
22 years.  More recently the use of ice was introduced to your regime of drug abuse in 2015.  You were under the influence of drugs and alcohol at the time of your offending in this case.  Nevertheless Dr Borg concluded as follows:
 "Mr Whitmore did not demonstrate signs or symptoms to suggest he was acutely alcohol or substance affected".  Dr Borg assessed your knowledge of words and meaning in the borderline range but your general knowledge and visual construction in the average range.  Your memory assessment was impaired, she says.  Dr Borg concluded, "The medical history includes reports of possible head trauma in the context of an assault" (that's at 2010, assault in prison) "and motor vehicle accident (1996), although clinical indicators of injury and the medical reports fail to support the possibility of a closed head injury in your case".  Dr Borg did not find that Verdins principles were enlivened in your case and Mr Toll did not submit that Verdins case has application in these matters.

23In summary, you are a 41 year old man who has had extensive background of alcohol and drug abuse.  You have an extensive and relevant criminal history.  You have struggled to display insight into your offending and in these charges of offending against women close to you:  your partner and your sister.

SENTENCING CONSIDERATIONS

24I turn to sentencing considerations.  The basic purpose for which a court may impose a sentence are just punishment; deterrence, both specific and general; rehabilitation; and denunciation of your actions; and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.

25I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

26I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered those cases and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances as many of the cases would be distinguishable from your case, as indeed they are from one another. Of course current sentencing practices are only one of the sentencing considerations I have to take into account. 

27I am mindful of the provisions of the Sentencing Act, in particular, s.5 (4C), which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which the sentence is to be imposed.  I have reviewed the case of Boulton in considering if a community corrections order is appropriate in your case.  I find that the offending is too serious and persistent for a community corrections order to have any proper place to play in your sentence.

28You indicated your plea of guilty to the indictable charges at the committal mention and this approach was consistent with your admissions in the record of interview with police and not taking issue with Ms Pearson's statement when you had no memory of the events.

29You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage, as I have said.  Your plea does have the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.

30You have significant and relevant prior convictions for the same type of offending before this court.  Your offending is against women, in this case who you profess to love:  your partner and your sister.  You have damaged property and injured them.  You have entered your partner's home when it was clear to you that you were not welcome there.  In respect of the family violence breaches you have almost offended at the first available opportunity, clearly displaying a total disregard for the law and your partner's safety and wellbeing.

31Mr Toal submitted you showed some modicum of humanity when you took
Ms Pearson to hospital and then home after it.  However, you had created the environment that caused Ms Pearson to require hospitalisation in the first place.  To add insult to injury, you breached the protection orders after you had taken her home from the hospital and had been spoken to by police.

32The principles of general deterrence, specific deterrence and denunciation of your actions are paramount in this case.  I have considered the sentencing principles of totality in settling the cumulation for the various offences, to ensure that the final sentence is not a crushing one.

33I regard your prospects of rehabilitation as guarded due to your prior criminal history and your lack of insight into this series of offending.  Nevertheless I have fixed a non-parole period to encourage you to take up rehabilitation when you are released from prison.  Would you stand, please?

34In respect of Charge 1, making a threat to kill, you are convicted and sentenced to 12 months' imprisonment. In respect of Charge 2, burglary, you are convicted and sentenced to nine months' imprisonment. In respect to Charge 3, recklessly cause injury, you are convicted and sentenced to 18 months' imprisonment.  That is the base sentence. In respect of Charge 4, damaging property, you are convicted and sentenced to 12 months' imprisonment.  I will do the cumulation at the end.

35In terms of the related summary charges, contravene of  family violence orders in respect to Charge 2, you are sentenced to six months' imprisonment.  In respect to Charge 3, you are sentenced to four months' imprisonment.  In the unrelated summary charge, which is the assault on your sister, you are convicted and sentenced to two months' imprisonment.

36The cumulation is as follows.  The base sentence is the recklessly cause serious injury, Charge 3.  Six months of the sentence of Charge 1, together with two months of the sentence in Charge 2 and six months of the sentence in Charge 4, three months of the sentence in the summary Charge 2 for breaching the family order, two months of the sentence in Charge 3 for breach of the family violence order, and one month of the charge of assaulting your sister, are to be cumulated on the base sentence of 18 months.  That is a total of three years and two months' imprisonment.  I fix a non-parole period of two years' imprisonment.  But for your pleas of guilty here yesterday I would have sentenced you to a total of four years and six months with a non-parole period of three years and four months.

37I declare that you have now served - it is 280, is it not?  280?

38MR McKENRY:  280 is right, Your Honour.

39HIS HONOUR:  Yes.  I declare that you have served 280 days of pre-sentence detention which are to be deducted administratively, and I have signed the 464ZF order.

40Do you want me to go over the cumulation again?

41MR McKENRY:  I'll check that with my learned friend in a moment.  For the 464 Your Honour will need to give Mr Whitmore a warning and that will give me an opportunity to confirm my numbers.

42HIS HONOUR:  Yes.  In relation to the 464, Mr Whitmore, what I have done is I have made an order that they can take a forensic sample from you.  How that is done is they take a swab from inside your mouth, all right.  If you not comply with that then they can use reasonable force in order to take that forensic sample.  Do you understand what I have just said to you?

43ACCUSED:  Yes.

44MR McKENRY:  Thank you, got it.

45HIS HONOUR:  Do you want me to do the cumulation again?

46MR McKENRY:  I have got it now, thank you, Your Honour.

47HIS HONOUR:  Yes.

48MR McKENRY:  And, Your Honour, in terms of the compensation order that I sought yesterday, I will have the paperwork provided to your chambers shortly.

49HIS HONOUR:  Yes, right.  I will make that compensation order, Mr Toll, in due course.  I think you have been advised of the details.

50MR McKENRY:  It has been consented to anyway yesterday in discussion between my friend - - -

51HIS HONOUR:  Yes, thanks very much.

52MR McKENRY:  So can I just - - -

53HIS HONOUR:  Yes, certainly.

54MR McKENRY:  The head sentence is how much, Your Honour?

55HIS HONOUR:  Yes, three years and two months.  I will just go through it again so you are clear, Mr Toll, because your client will want to know what has he done?

56MR TOLL:  Yes.

57HIS HONOUR:  Meaning what have I done?  So the base sentence is
18 months, which is for the recklessly cause injury charge, Charge 3.  That is 18 months, and what I have done is, in terms of Charge 1, which is a making a threat to kill, I have added, you know, cumulated six months of that sentence.

58MR TOLL:  Yes.

59HIS HONOUR:  Then I have cumulated two months of the burglary charge, and I have cumulated six months of the damaging property charge.

60MR TOLL:  Yes.

61HIS HONOUR:  I have cumulated three months of the first - this is attending the house, Charge 2 of the breach.  I have cumulated two months of the texting and ringing and I have cumulated one month of the assault on the sister, and that should add up to 38 months.

62MR TOLL:  Yes, Your Honour.

63HIS HONOUR:  And the non-parole period, two years.

64MR TOLL:  Yes, thank you, Your Honour.

65MR McKENRY:  Thank you, Your Honour.

66HIS HONOUR:  Thanks.  Remove the prisoner.  Thanks for your help, Mr Toll.

67MR TOLL:  Thank you, Your Honour.

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