Director of Public Prosecutions v Wilson
[2020] VCC 148
•26 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01771
Indictment no. J10086279.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY WILSON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 11 February 2020 | |
DATE OF SENTENCE: | 26 February 2020 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 148 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of common law assault and one charge of intentionally causing injury – offences committed in context of a significant history of family violence against the victim who was the offender’s partner and mother of his children – offences committed whilst accused was on bail albeit for an unrelated offence of driving whilst disqualified – prior history of violent offending as well as subsequent history of violent offending
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Pasinis v R [2014] VSCA 97; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total Effective Sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months; 9 months’ concurrency with state sentences currently being served. s. 6AAA statement: 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Caruso | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr J Miller | Haines & Polites |
HER HONOUR:
1 Ricky Wilson, you have pleaded guilty to one charge of common law assault which carries a maximum penalty of 5 years’ imprisonment and one charge of intentionally causing injury which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are detailed in the amended summary of prosecution opening for plea (Exhibit “A”). The offending occurred on 1 December 2015 and the victim was your then female partner, who was aged 28 years, and the mother of two of your children, who were then aged two and three years respectively. She also had two children from an earlier relationship, aged nine and 10 years respectively. The offending occurred in the context of a significant history of violence towards your victim. Indeed, it was not until after the events of 1 December 2015, following which your victim left you, that she slowly developed a rapport with a member of Victoria Police and, from March 2016, gradually revealed a number of incidents of violence to which she had been subjected prior to 1 December 2015. Ultimately, by July 2017 she felt ready to be able to make a statement about what occurred on 1 December 2015.
3 On the evening of the offending, all four children had gone to bed. Your victim was sitting on the couch in the living room and you asked her to come and sit on your lap. She complied with your wish, thinking you were calm and relaxed, and all of a sudden you flew into a rage claiming that she had sat on your “balls”. Your victim apologised, but you began yelling at her and grabbed her around the throat and held her firmly. Her throat was constricted, but she was still able to breathe. This is the conduct comprising Charge 1, common law assault.
4 You then went into the laundry and shut the door. Later you emerged holding a spray can with a shoelace inserted into the nozzle, together with a lighter. You told your victim, “If I go, we all go.” She tried to calm you down, as she was afraid that you would hurt her and the children, and you ultimately went back into the laundry.
5 The victim was sitting in the lounge room upset about what had happened. You then came in and told her that she could calm him down if she sucked your dick. You victim responded with something like, “Are you serious? After everything that has just happened?” You then stated, “We are going to have sex anyway.” You then pushed your victim from behind and grabbed her around the neck. You pushed her to the ground so that she was bending over and pulled down her pants and underwear to below her knees, and began having sex with her. Your victim tried to push you away with her hands but she could not, as your hand was still around her neck. She screamed at you and you ultimately stopped. Following the sexual intercourse you told your victim “you’re not worth it” and left the lounge room. A charge of rape, which had been initially laid against you, was ultimately withdrawn one year after a committal hearing had been held on 30 August 2018, during which your victim was cross-examined and adopted the statement of complaint made by her against you. For reasons best known to the prosecution, it accepted that you ceased penetration when you realised your victim was not consenting.
6 Following the incident which I have just described, you continued to be angry and rant, but eventually calmed down and went back into the laundry. You then called out for your victim to go into the laundry. She tried to tell you that you should leave. You shut the sliding door to the laundry and picked up a hammer, which you swung towards your victim’s head. It missed and went through the wall. You then swung the hammer again and hit your victim on the top left-hand side of her head and she lost consciousness. This is the conduct comprising Charge 2, intentionally causing injury.
7 The two older children of your victim awoke in the early hours of the morning and observed the condition of their mother, who was on a chair in the laundry. You told them to go back to bed. In the morning, when the children woke up, you took the three older children to your mother’s house, leaving your youngest child, aged 2, in the house with your victim, who was apparently unconscious.
8 In a VARE made by your victim’s then 9-year-old son, he stated that he woke in the middle of the night to get a drink of water and saw his mother in a chair and you yelling at her. He stated that you told him to go back to bed and when he woke up in the morning he saw his mother. He told police “I’m not sure if she was…” As you drove him and the other two children to your mother’s house, he stated that you were on the phone, saying something like “I think I killed her” and at some stage you had said “what do I do with the body? ‘cause I think I killed her”. He stated that you left himself and the other two children at your mother’s house. Some hours later his mother came back and he noticed a couple of bruises on her face.
9 Your victim’s daughter, then aged 10 years, stated that she got up about 5.00am to get a drink and saw her mother sitting in the laundry on a chair near the washing machine, but she kept falling off. She stated that you told her to go back to her room. She went back to bed, and, when she woke up, her mother was on the couch. She asked you what was wrong with her mother and you told her that her mother was fine and that she was being silly. She stated that you told her and the other two children to get into the car and you were on the phone saying various things, such as “what do I do with the body” and “I’m not sure if I should take her to the hospital” and “she’s not moving, she’s not talking or anything and what do I do with – what do I do with the body”. She stated that you took her and the others to your mother’s house and, later, brought their mother there. After they returned home, she was looking on your phone and she found a video of your victim which she described as showing her “like falling off the chair.” She said her mother did not want her to see the video, so her mother quickly deleted it. She mentioned that, on other occasions when you had got angry with her mother, you had given her a black eye.
10 Police obtained the maintenance sheet from the house where you had been living. The property report noted holes in the laundry cupboard door and two holes in the laundry wall, which the prosecution maintains are consistent with having been caused by you using a hammer.
11 As previously mentioned, your victim took some time to complain about this offending, but ultimately did so on 28 July 2017. You declined to be interviewed by police. Apparently, you were in custody on other matters. As I have stated, a contested committal was held on 30 August 2018, during which the complainant was cross-examined, but the children were not.
12 You are presently aged 31 years, having been born in December 1988. You come before the Court with a number of prior appearances in the adult criminal jurisdiction, both Magistrates’ Court and County Court, dating back to 2009. These include charges of criminal damage and assault with a weapon, of which you were convicted on 12 August 2010 and ordered to undertake a Community-Based Order, which you breached. Subsequently, on 25 May 2014, the contravention was found proven and the order was confirmed on 25 May 2014. On 6 August 2014, you appeared before the Melbourne County Court and were convicted of trafficking in a drug of dependence, criminal damage, armed robbery and possessing a prohibited weapon. You were ordered to undertake a Community Correction Order for a period of three years with judicial monitoring. This Community Correction Order was also breached.
13 Although you are in no way to be punished for your prior or subsequent offending, these matters are relevant to your prospects of rehabilitation. As far as subsequent offending is concerned, you appeared before the County Court at Melbourne on 18 August 2016 for contravening the Community Correction Order made on 6 August 2014, as well as fresh charges of armed robbery, theft, possessing a controlled weapon, obtaining property by deception, theft, committing an indictable offence whilst on bail, contravening a condition of bail, unlicensed driving and dealing with property suspected of being the proceeds of crime. You were sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years.
14 On 5 April 2017, you appeared before the Melbourne Magistrates’ Court on charges of criminal damage, dealing with property suspected of being the proceeds of crime and unlawful assault, for which you were given a term of imprisonment of 6 months, partly concurrent with sentences which you were already undergoing. On a successful appeal to the County Court on 6 June 2017, the term of 6 months’ imprisonment was made totally concurrent with the sentence which you were then serving.
15 On 14 August 2017, you appeared before Sunshine Magistrates’ Court on charges of recklessly causing injury and unlawful assault and were sentenced to a term of 5 months’ imprisonment, concurrent with the sentence which you were then serving.
16 On 31 October 2018, you appeared before Melbourne Magistrates’ Court on one charge of intentionally damaging property. You were convicted and fined $1,000.
17 It is pertinent to note that two of your appearances in the Magistrates’ Court subsequent to the offending for which I must sentence you relate to offences committed against your same victim, the mother of your two children.
18 The charges of recklessly causing injury and unlawful assault, for which you appeared at Sunshine Magistrates’ Court on 14 August 2017, related to offending which had occurred between December 2013 and April 2014, and further offending between November 2014 and February 2015. This is referred to in the prosecution opening. In 2014, your victim had given birth to twins, a boy and a girl, of whom you were the father. The twins were born prematurely at 24 weeks gestation. Not long after their birth, your son died. Whilst your twin daughter was still in intensive care in hospital, a dispute arose between you and one of your victim’s other children. Your victim intervened and you punched her in the face with so much force that she fell to the floor. You then repeatedly stomped and kicked her whilst she was lying on the ground, whilst yelling “go sleepy weepy”. Your victim states that she lost consciousness and, when she came to, you were crying and asking for forgiveness. She was left with bruises. She states that, after this occasion, there were numerous other incidents of physical violence that did not result in any visible injuries.
19 The offending for which you appeared in the Melbourne County Court on 6 June 2017 (an appeal from orders of the Magistrates’ Court made on 5 April 2017) relates to offending against your same victim in August 2015 and between November and December 2015.[1] In paragraph 7 of the prosecution opening, it is mentioned that your victim had received some form of insurance payout relating to a car accident. You arrived at the home, where she was living with the children, in an agitated state. An argument ensued, during which you placed your hands around and squeezed the complainant’s neck. The following day, which was your birthday, you became upset with your victim because she had been late home. You demanded the money she had received by way of insurance payout, but she convinced you that she had buried it. She then fled from the house with the children and got into a car which she had rented. You picked up a rock and threatened her. As she drove away, you followed her on your motorcycle and, at times, kicked out at the vehicle. Your victim drove to a petrol station and called 000. Police arrived and she told police what had occurred, but was too scared to make a statement. Over the ensuing month, police and support workers assisted your victim and the children to leave home and move to a location which is not known to you. It was not until March 2016 (by which stage you had been remanded in custody for other matters) that your victim worked up the courage to tell police about these assaults and she made two statements concerning the violence you inflicted upon her, including her statement dated 28 July 2017, which outlines the offending conduct to which these proceedings relate.
[1]These dates appear in a chronology tendered on behalf of the prosecution as Exhibit “E”
20 It is deeply concerning that you have repeatedly subjected your victim to controlling, humiliating and violent behaviour over a number of years. As I have said, you are not to be punished for matters which have already been the subject of sentences imposed by courts, either prior to or subsequent to this offending. However, it is an aggravating feature that, by committing the subject offences, not only did you breach a bail order, but also a Community Correction Order. Your offending is of a gratuitous, morally abhorrent and cowardly nature towards the mother of your two children, who were of tender age. I regard it as another aggravating factor that your victim’s two older children witnessed her in the injured and depleted state caused by you.
21 Although it is clear that I must sentence you for the offence of intentionally causing injury simpliciter, I regard this as a serious example of such offence. Indeed, you are fortunate that your victim did not ultimately suffer a serious injury, given that you struck her to the head with a hammer and there is evidence that, subsequently, she was unconscious and that you articulated to someone on the telephone that she was not moving or talking and you thought you had killed her.
22 I note that it is part of the agreed facts in the prosecution opening that your controlling behaviour of your victim included not permitting her to attend a doctor in case evidence of your assaults upon her should be detected. It is alarming that your self-interest in not being detected for your violent treatment of her militated over your concern about her well-being. After seeing you wield the hammer with which you struck your victim, her next memory is of being in the back seat of a car and coming in and out of consciousness. She realised that you were driving. She also recalls you telling her that she had been in an accident. She recalls then arriving at your mother’s home and hearing your mother say to you “how could you do this to her”. It is also extraordinary that you used your phone to record a video of your victim in her injured, impaired state. She saw this on your phone the following day and stated that it looked as though she was having fits of some sort. Her 10-year-old daughter also saw this video when she was looking at your phone, which caused your victim to delete it, as she did not want her children exposed to such footage.
23 In a plea on your behalf, Mr Miller told the Court that you grew up in a family where you were exposed to drug and alcohol abuse and also family violence. Members of the extended family were associated with the “Melbourne underworld war” in the early 2000s. A report from Mr Ian Mackinnon, forensic and consultant psychologist, dated 29 May 2017 (now somewhat dated) was tendered as Exhibit “1”. He stated that you claimed that, when in prison, as soon as people find out about your extended family, you become a target, and you became the subject of threats and physical assault. Mr Mackinnon considered that this caused you to suffer Post-Traumatic Stress Disorder symptoms when he assessed you in custody back on 29 May 2017.
24 Mr Mackinnon considered that you also had unresolved grief relating to the death of your sister some years earlier and also relating to the death of your newborn son only two hours after he was born whilst he was in your arms. He opined that this grief contributed to your anxiety and depression. Further, Mr Mackinnon considered that you suffer a poly-substance abuse disorder and this, plus your chronic Post-Traumatic Stress Disorder symptoms, probably made a significant contribution to offences which were the subject of the report (such offences having been committed on 2 August 2015 and 7 December 2015) by degrading your ability to reason and make sound judgments, elevating your impulsivity and lowering your powers of consequential thinking, lowering your frustration tolerance levels and making you vulnerable to angry and violent acting out. I here interpolate that her Honour Judge Hampel, who sentenced you for those offences, did not find the principles in R v Verdins enlivened to reduce your moral culpability when she sentenced you on 18 August 2016.[2]
[2]See paragraphs 24 and 25 of her Honour’s sentencing remarks [2016] VCC 1238 at page 8.
25 It is plain that you have a long history of substance abuse, having used alcohol and cannabis from some time in your teenage years and then progressed to using ice on a daily basis. Certainly, Mr Mackinnon noted that by May 2017 you were smoking about a gram of ice daily, sometimes combined or alternated with cannabis.
26 Mr Mackinnon had access to a psychological report by Mr Mitchell Hobbs dated 30 July 2014, which was ultimately provided to the Court after the conclusion of the plea hearing. I have marked this as Exhibit “2”.
27 Mr Hobbs had treated you on referral from your general practitioner pursuant to a mental health care plan and had seen you for six sessions of one hour each, between 31 March and 30 July 2014. He noted your difficult childhood and, at that stage, your grief concerning the death of your sister some years previously, as well as a long history of substance use difficulties, particularly methamphetamine, cannabis and alcohol. On initial testing, your responses indicated that you were in the extremely severe range for anxiety and stress and the severe range for depression. Following various treatment sessions, by 10 July 2014, your symptoms of depression and stress were noted to be mild and your anxiety symptoms were said to be normal. Mr Hobbs considered that your substance abuse had increased following the death of your sister, but noted at that stage that you had had significant success abstaining from using it since being released from custody in March 2014. When Her Honour Judge Hampel sentenced you on 6 August 2014, she referred to your encouraging prospects of rehabilitation which played a significant part in her decision to order you to undertake a Community Correction Order of 3 years’ duration for offences of armed robbery, criminal damage and trafficking. Obviously, your abstention from taking ice or other illicit drugs did not last long and you breached that Community Correction Order, which resulted in Her Honour cancelling the Order and resentencing you on 18 August 2016 for the breach and other offences to a term of imprisonment of 5 years, with a non-parole period of 3 years.
28 It would appear there is an almost textbook cycle of violence that has been perpetrated by you in a controlling relationship whereby you have repeatedly made your victim feel that she is to blame and should apologise to you for what you had done to her. You should be left in no doubt about the impact that the offending for which I must sentence you has ultimately had upon your victim.
29 In a Victim Impact Statement filed as Exhibit “B”, she states “I cannot even begin to illustrate the repulsive monster I once knew”. She speaks of having lived in fear of you when you were in her life, and now she lives in fear of you getting out of custody and coming to hunt her down. She worries about her four children being left without a mother. She describes ongoing anxiety, fear of going out, inability to trust people – particularly men, not being able to handle being touched, and difficulties with post-traumatic stress symptoms and sleep difficulties.
30 She states that you have no remorse and that you have stated that you enjoy hurting women, and call yourself “Teflon Rick” because no charges ever stick. She expresses her concern about having to pick up the pieces of her children’s fractured lives and how no children should ever have to go through seeing and feeling the things that her children have experienced.
31 She suffers headaches and exhaustion, but has to be conscious of her daughter’s special needs, including having to take her to appointments for treatment. She describes the trauma of having to restart life with just the clothes they were wearing and being put in safe houses for months until you were finally arrested.
32 Your victim’s son, now aged 13 years, provided a Victim Impact Statement (Exhibit “C”). He speaks of watching his mother get hurt and seeing her in fear and how he was very scared. He states that, even when he is doing something which is fun, he has this general feeling in the back of his mind which gives him a level of stress. He says that sometimes it affects his sleeping, in that he wakes up in the middle of the night thinking about what you did. He states that has has hurt him having to move from his home and he misses the friends he has lost and being able to regularly see other members of his family.
33 Your victim’s daughter, now aged 14 years, provided a Victim Impact Statement which was tendered as Exhibit “D”. She described how she would be scared to come home and see her mother get bashed by you, and still has trouble sleeping at night, and has nightmares and flashbacks to what happened. She describes how difficult it was having to repeatedly change schools because they were in hiding because of what you did, and how she lives in fear worrying about what may happen when you are released from gaol.
34 The sentiments expressed by your primary victim and her son and daughter are understandable and foreseeable consequences of the terrifying violence perpetrated by you. As I have said, it is an aggravating feature of the offending that all four children were in the house when you offended against the victim, and that the two older children during the night saw her in the immediate aftermath of the brutal assault which you had inflicted upon her, as well as her inert state when they got up again in the morning.
35 Incidents of violence and menacing, controlling behaviour by offenders against intimate partners has been increasing at an alarming rate in our society. Courts dealing with such offending much denounce it in the strongest possible terms and make it plain that it will not be tolerated. Through sentencing you, others must be deterred. Emphasis must be placed on general deterrence so that a strong message will go out to the community that people who behave in this brutal and controlling way towards a partner will meet with appropriate punishment. It needs to be made abundantly clear that men do not own their partners. They have no right to physically or emotionally abuse them. They have no right to control them. They have no right to humiliate them.
36 In your case, you have shown serious disrespect on a repeated basis for your victim and, indeed, to another woman in the past, as well as another man in the past. Whilst I am not to sentence you for anything other than the two offences which are before the court, it was clearly a horrifying and protracted ordeal for your victim on this occasion. Your history of violent offending calls for emphasis upon specific deterrence, as well as general deterrence. It is also important that the community be protected from offenders like you who repeatedly commit violent crimes. Victims must feel vindicated by knowing that offenders will be punished appropriately.
37 Mr Miller submitted that, in applying the principle of totality, the Court should moderate the sentence to be imposed in order to acknowledge the loss of opportunity for concurrency.
38 In response to Mr Miller’s submission, Ms Caruso acknowledged that there had been delay. She pointed out that, subsequent to the sentence imposed by her Honour Judge Hampel, the sentences imposed by the County Court on 6 June 2017 (6 months’ imprisonment) and by the Sunshine Magistrates’ Court on 14 August 2017 (5 months’ imprisonment), both of which related to offending against the same victim of the offences for which I must sentence you, were made totally concurrent with the sentence which was being served by you. Hence, Ms Caruso submitted that there was little relevance to the argument that totality would have had significant application, particularly as Her Honour Judge Hampel was dealing with offences totally unrelated to any offending against your victim in the matters for which I must sentence you.
39 I must accept that there has been delay. Firstly, there was delay by your victim in reporting your offending to police. This is a very common and understandable factor in cases like this. Following your being charged on 2 January 2018,[3] the delay has been primarily attributable to your failure to accept responsibility. Your victim was cross-examined at committal and you were committed on charges, which included a rape charge. It was not until a year after the committal hearing and following a number of directions hearings in the County Court, that you finally made an offer to resolve the matter. On 27 August 2019, a new indictment was filed which did not include an alleged charge of rape, and, on 6 September 2019, you were arraigned in short form before Her Honour Judge M Sexton on both charges now before me. I have already referred to the fact that the rape charge was withdrawn for reasons best known to the prosecution. I here note that you entered pleas shortly after the prosecution formally agreed to discontinue the rape charge, and I will address this in more detail when determining the appropriate weight given to the point in time at which you entered your pleas of guilty. It seems to me that, if you had remorse, you could have been more proactive in endeavouring to resolve the matter and, had you done so, you would not be in the situation that you are now in.
[3]Amended Chronology produced by the prosecution, Exhibit “E”
40 Delay can be relevant in a number of matters and, normally, regardless of whether an offender has been responsible for the delay, a court would take into account the time between the commission of the offences and the time of sentence if the offender had used that time to rehabilitate himself. This certainly cannot be said in your case, because you committed a serious armed robbery on 21 February 2016 which involved threatening your victim with a hammer. On that date, you also committed other offences, including theft, possessing a controlled weapon, obtaining property by deception, committing an indictable offence whilst on bail, contravening a conduct condition of bail, unlicensed driving, dealing with property suspected of being the proceeds of crime and possessing a drug of dependence. The subsequent Magistrates’ Court sentences, relating to the same victim on the matters for which I must sentence you, were offences committed prior in time to the subject offences. However, you do have one further subsequent offence for which you appeared at Melbourne Magistrates’ Court on 31 October 2018 for intentionally damaging property.
41 I am conscious that you have now been in custody serving sentences for nearly 4 years and, obviously, have not been granted parole in relation to the sentence imposed by Her Honour Judge Hampel on 18 August 2016. I am conscious that the principle of totality is important in ensuring that a sentence is not a crushing one so as not to annihilate what prospects of rehabilitation may be present. Having said that, I am very guarded, indeed, about your prospects of your rehabilitation in the light of the fact that you had been given a number of chances of rehabilitating yourself by undertaking Community Correction Orders (12 August 2010, 22 May 2014 and 6 August 2014), but did not utilise those opportunities.
42 I have already noted that, in his report dated 30 July 2014 (Exhibit “2”), Mr Hobbs commented that you had had significant success in abstaining from drug use after being released from custody in March that year and attended six or seven sessions of psychological counselling with the author pursuant to a Mental Health Plan provided by your general practitioner. Unfortunately, this abstention appears to have been short lived and you relapsed into Ice use and violent offending soon afterwards, as well as breaching bail and Community Correction Orders. However, I do take into account that, whilst in custody, at least, you have shown some interest in rehabilitating yourself by engaging in a 44-hour closed semi-intensive drug rehabilitation program run by Caraniche Drug and Alcohol Services. It comprised 22 sessions of 2 hours duration. In addition, very recently, just before the plea hearing, you requested individual counselling. A report from Caraniche by Ms Gaye White, senior clinician at Loddon Prison, dated 19 February 2020 (Exhibit “3”) confirms that, as at the date of the reference, you had attended two sessions of individual counselling. It is also to your credit that you have apparently applied yourself to working in the kitchen at Loddon Prison and previously in other positions as billets at Port Phillip Prison and the Metropolitan Remand Centre. I accept that, as you were ineligible for parole, a number of pre-release programs have not been available to you.
43 Your counsel submitted that you should be given a substantial discount for your pleas of guilty, which have real utilitarian benefit and demonstrate a willingness to facilitate the course of justice and acceptance of responsibility, as well as remorse. You are entitled to a meaningful discount by reason of your pleas of guilty, which I accept were made shortly after a new indictment was filed on 29 August 2019. However, I have reservations about the extent of remorse. I note that when Mr MacKinnon assessed you back on 29 May 2017, he recorded that you then expressed “appropriate remorse for [your] offending,” stating that “[you had] ‘fully let go’ of [your] relationship with [your victim] and [you regret] that whole period in [your] life”. Of course, Mr MacKinnon was not aware of the full extent of your offending against your victim at that stage, but you clearly were. Indeed, you seem to attribute some blame to your victim, whom you described to Mr Mackinnon as having been manipulative. Having said that, it is possible that, in the time since May 2017, you may have reflected upon your conduct and developed remorse for it, but on the material put before me on the plea, I am not able to draw any more definite conclusion.
44 I make it plain that victims are in no way to blame for people violently assaulting them in the way that you have done. The law recognises the devastating effects of family violence and the fact that some women, who have been killed by a former partner, had previously been the subject of violence from that person many times. Victims have, at times, been made to feel responsible and ashamed and also afraid of their perpetrator. As I have already mentioned, it is quite common for a victim to delay reporting assaults upon them. The effects of such violence are not confined to physical injury, but, also, include psychological effects which can be enduring. For all these reasons, a court in sentencing for such violence, must ensure that both specific and general deterrence are given prominence in the sentencing process.[4]
[4]See Pasinis v R [2014] VSCA 97 at paragraphs [53] and [54]
45 In arriving at the sentence that I intend to impose, I have taken into account your pleas of guilty and the fact that you have been in custody for some years now on other offences and had time to reflect upon and start doing something about your long-term drug problem, as well as undertaking some work, which seems not to have featured much in your life. You apparently left school in Year 8 and, apart from working sporadically in warehousing as a forklift driver, there is no evidence of any solid work history, but simply a wasted life of drug abuse and crime. However, I do note that you have had a disadvantaged upbringing by reason of exposure to drug and alcohol abuse, and family violence and criminal associations in the extended family. The law recognises that the impact of such disadvantage can be long term and I take it into account. Nevertheless, it would seem that your hypervigilance referred to back in the 2017 report of Mr MacKinnon in relation to your extended family’s criminal associations has lessened, albeit that Mr Miller told the court that, when you were returned to Port Phillip Prison for this Court hearing, you again experienced it.
46 There can be no doubt that the only appropriate sentence is a term of imprisonment. This is brutal, cowardly offending and women must be entitled to feel safe in their own homes and also know that their children will not be psychologically damaged by being exposed to violence perpetrated by one parent or partner upon the other. Your offending on Charge 1, in suddenly and randomly grabbing your victim around the throat, is a startling and brutal form of assault. It came out of nowhere and took your victim completely by surprise. She was, thereafter, subjected to an ordeal of menace and humiliation over a period of quite some time, which ended up with your vicious assault of swinging a hammer towards her head. You initially missed her, but you swung it with such force that it went through the wall. You then swung it again and struck her on the top left-hand side of her head, rendering her unconscious. Almost two years later, after your victim reported this assault, a medical examination of your victim’s scalp revealed a 2-3 centimetre irregular area of slight indentation and in the same place, an approximate 3 centimetre area of hypopigmentation to the skin. The examiner, Dr Giles, stated that these findings could be the result of blunt force trauma, but the lapse of time made it difficult for him to comment further. He did state that head injuries of any severity can cause seizure activity in the immediate aftermath. In this regard, your victim stated to police that the video she viewed on your phone shower her “having seizures and froffing (sic) from the mouth and [you] were trying to get her to sit on a chair, but [she] was having some sort of fit.”[5]
[5]Statement dated 28 July 2017, p. 130 of the depositions
47 As I have said, this is a serious example of the charge of intentionally causing injury in circumstances where you were already on bail and subject to a Community Correction Order. You had treatment available to you for your drug and anger problems as part of the Community Correction Order but did not utilise that opportunity. You used a hammer as a weapon to strike your victim’s head and it occurred in her own home where she should have been able to feel secure and protected. She was in a vulnerable position because her four children lived there and she needed to be present for them, whereas you used to “come and go from the home.”[6] It was a completely irrational, cowardly and thuggish act in a home environment where four young children were sleeping. It was a protracted incident where your victim was left overnight in the laundry apparently suffering an impaired state of consciousness as a result of the blow you delivered to her head. You did not bother to even seek medical attention for your victim after she became unconscious. As I have said, it is an aggravating feature that two of your victim’s children witnessed their mother in an impaired state, both during the night when she was in the laundry and the following morning when they woke up. Those children must have been filled with terror when they heard you on the telephone telling someone that you believed you had killed her and did not know what to do with her body. Your victim and her children are plainly still living in fear and in hiding, such that I have deemed it appropriate that their Victim Impact Statements be sealed so that their whereabouts will not become known to you or others who might be minded to inform you of that fact. The lives of your victim and her own two children and the two children which she bore to you have been grossly disrupted as they have had to move away from what is familiar to them – family, friends, schools and the stability that every child should be entitled to have as they are growing up.
[6]Paragraph [3] of Exhibit “A”
48 You have expressed through your counsel a desire to have contact with your two children to which your victim gave birth. You have not seen them since the intervention of the Department of Health and Human Services in 2016. At that time, they were aged only two and three years respectively. Since then, four years have elapsed without them knowing you. More time will elapse whilst you serve the sentence which I must impose. By your own brutality, you have deprived those children of the love, care, nurturing, support and protection which every child should have from a father. You have destroyed the possibility of a loving childhood bond with their father and it is difficult to know how you will go about ever establishing a meaningful, loving bond of trust with them, even if permitted to do so according to the law.
49 I am mindful of the provisions of s16(1A)(e) of the Sentencing Act, which makes it plain that the presumption of concurrency in s16(1) does not apply where a person, like you, commits an offence whilst released on bail in relation to another offence. However, I consider that to make the sentence that I impose totally cumulative upon the sentence which you are undergoing would be oppressive and, accordingly, I propose, in the interests of totality, to allow some concurrency.
50 Would you stand up please.
51 On Charge 1, common law assault, you are convicted and sentenced to be imprisoned for a period of 9 months.
52 On Charge 2, intentionally causing injury, you are convicted and sentenced to be imprisoned for a period of 4½ years.
53 The sentence imposed on Charge 2 is the base sentence. I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively upon it, making a total effective sentence of 5 years’ imprisonment, of which 9 months is to be served concurrently with the sentence which you are presently serving.
54 I direct that you serve a period of 3½ years before becoming eligible for parole.
55 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 6½ years, with a non-parole period of 4 years and 10 months.
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