DPP v Bietman

[2020] VCC 894

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00810

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE BIETMAN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF SENTENCE:	19 June 2020
CASE MAY BE CITED AS:	DPP v Bietman
MEDIUM NEUTRAL CITATION:	[2020] VCC 894

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      

Catchwords:  Sentence – Plea of guilty – 2 charges of unlawful assault, 1 charge of intentionally destroy property, 1 charge of aggravated burglary – offensive weapon, 1 charge pervert the course of justice – 1 summary charge – Co-accused awaiting trial – Offensive weapon – Spanner – Complainant known to accused – Ice fuelled violence – Low order offence – Merciful sentence – imprisonment.

Legislation Cited: s197, s77, Crimes Act 1958 (Vic) – s145 Criminal Procedure Act 2009 (Vic) – s30B Bail Act 1977 – s11, s18 Sentencing Act 1991 -

Cases Cited:Comensoli v The Queen [2020] VSCA 2 – Maslen v The Queen [2018] VSCA 90 - DPP v Meyers [2014] 44 VR 486 – DPP v Charlie Dalgliesh (a pseudonym) [2017] HCA 41 - R vJohns [2010] VSCA 63 - Bugmy v The Queen (2013) 249 CLR 571 -

Sentence:Total effective sentence of 3 years and 3 months imprisonment with a non-parole period of 24 months. In addition, further declare that 683 days be declared as presentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	The Office of Public Prosecutions
For the Offender	Mr M. Sturges	Stary Norton Halphen

HIS HONOUR:

1Mr Bietman, the primary reason for these remarks, of course, is so that you personally understand why you have been sentenced.

2Mr Bietman, who is now 35, was born on 21 September 1984.  He was 33 at the time of these offences.  He was represented by Mr Sturges at the plea, and today. The Director was represented by Ms Hamill, who also appears today.

3In regard to Indictment No. J12055282, Mr Bietman entered a plea of guilty to the five charges therein.

4The first charge is of common law assault which occurred on 6 August 2018, for which the maximum penalty prescribed is five years.

5The complainant is Lisa Ireland and the assault took place at her home at approximately 4:00pm on that day, at 310 Old Sale Road in Newborough. Mr Bietman, entered the home with his co-accused, Ms Kerrison, Ms Ireland’s two daughters and one son, and two of her friends with their children, were present.

6The assault involved Mr Bietman taking a large kitchen knife from the kitchen cupboard and using it to terrorise the complainant.  It all came about from circumstances related to the animus which Ms Kerrison had towards a friend of Ms Ireland's, Lance Hope.

7The use of the knife to terrorise the complainant took place generally in the house, but in particular in her bedroom.  It led to a daughter ringing the police.  When advised the police were coming, Mr Bietman and his co-accused left saying, 'we will be back'.

8Unfortunately for the complainant, she failed to report the prisoner to the police when they arrived, thinking that she would be able to sort the matter out. Ms Ireland had known the co-accused, Kerrison, and Bietman
Mr Bietman for some months prior to these charges, they had been painting the place where she was living.

9As I say, unfortunately Mr Bietman and his co-accused returned to the premises at approximately 7:00pm that night. The complainant had looked out of the window, having been alerted to their presence, and saw Mr Bietman damage the motorcycle owned by Mr Hope. The damage, as we have heard today, was minor, although such charge under s.197 of the Crimes Act carries a maximum sentence of 10 years.

10The circumstances, however, got much more serious after it was determined by Mr Bietman and Ms Kerrison that they would enter the premises.  Apparently there was discussion through the window with Ms Ireland, and she indicated to them that Mr Hope was not there, and that they were not permitted to come into the house.  They came through a closed door by way of trespassing, after they had been told to go away.

11When he came through the door Mr Bietman had a spanner. His intent on coming through the door was to assault Mr Hope, who he believed to be there. The circumstances that then took place were that by the use of the spanner, and alternatively by the co-accused having a pit bull terrier, the victim was terrorised. The actual circumstances of the aggravated burglary were established by that trespass; the fact that Mr Bietman entered into the premises with a spanner and the circumstances of the entry itself. Such is an offence under s.77 of the Crimes Act, for which the maximum penalty is 25 years, such indicates the seriousness with which the Parliament views such offences.

12During the period that they were in the house they, either by the use of the spanner and/or the way they spoke to the victim, terrorised all of the people who were in the premises, but in regard to Charge 4 in particular, the 15 year old daughter of Ms Ireland, Charlie Wilkinson.  She had observed the use of the spanner by Mr Bietman, the dog being held by Ms Kerrison, and the manner in which her mother had been put upon, and in those circumstances the facts set out for the common law offence in Charge 4 were established. Subsequent to these events again the police were called,

13While on remand Mr Bietman had a telephone conversation with Ms Kerrison.  It is this conversation, that forms the basis of the fifth charge, which is the attempt to pervert the course of justice.  Again, a very serious charge as indicated by the maximum penalty prescribed, being 25 years.  This involved an approach by Ms Kerrison to the complainant, Ms Ireland, at the Latrobe Magistrates' Court.  The preparation and the role of both parties in this was recorded on the arunta system in the gaol, and indeed allegedly the approach was made while such system was recording.

14Subsequently, in a record of interview, Mr Bietman denied use of the knife and certainly denied kicking the door in, which is not relied upon by the prosecution.

15Pursuant to s.145 of the Criminal Procedure Act I have been asked to take into account summary Charge 7, to which a plea of guilty has been entered by counsel on behalf of Mr Bietman. That is, commit an indictable offence while on bail; an offence against s.30B of the Bail Act for which the maximum penalty imposed is three months.

16As a result thereof, Summary Charges 1, 5, 6, 9 and 10 were withdrawn by the learned prosecutor.

17The indication to plea of Mr Bietman, and the resolution of this took place by 17 March 2020.

18As indicated today, Mr Bietman has served, by way of pre-sentence detention since 6 August 2018, 683 days, which will be taken into account in the sentence today.

19There is no victim impact statement, I am advised that the co-accused is awaiting trial in regard to similar charges.

20The priors have been accepted by Mr Sturges. There was a committal, and cross-examination on 24 April of 2019 in regard to the complainant, Ms Ireland, Van der Bush and the informant.  There is no suggestion that the cross-examination was inappropriate, and it is clear that it led to the ultimate plea in the matter.

21Mr Bietman's priors are significant, although clearly, given the examples we have in this Court, not the worst I have ever seen.  However, they do involve two significant stints in gaol; one for an offence of robbery in New South Wales when he was much younger, in 2005, and the most recent matter being a sentence imposed in the Latrobe Magistrates' Court in 2014 for a series of charges which, reading from the psychiatrist's report, seem to have come about from some domestic issue with his father.  There were quite serious allegations and as a result thereof for the assault charges he was sentenced to 30 months imprisonment, there was also a threat to kill, drive manner dangerous, affray, recklessly endanger life, and a maximum aggregate sentence was passed of three years, with a non-parole period of two years.

22In February of 2014 there is a manner dangerous and an .05 and a contravention of community correction order for which he, again, got a period of gaol.  The breach of the community correction order, that related to a charge of threat to kill and unlawful assault, for which he got the community correction order in May of 2013.

23There is a four year break, which is spoken about by the psychiatrist and indeed in the plea, and that occurs therefore going from the conviction in 2013 back to 2009.  There is, again, a violence conviction for unlawful assault and threat to kill, when a sentence of four months, wholly suspended, was imposed.  We then go back to when he is 28, in December of 2008, when there is a further threat to kill, assault police and resist, for which he gets a community correction order, and then in that year, also in November, a fine for an offence of affray.

24I make it clear to you, Mr Bietman, the fact of you having those priors, even though I have described them as not the worst that I have heard, is to demonstrate that you do have, unfortunately, significant priors for violent issues. However you are not here to be sentenced for those again, but such priors restrict the types of sentences that may be applicable.

25The prosecution opening was tendered as Exhibit A.  It was accepted by
Mr Sturges that the facts set out therein are the circumstances upon which I am to sentence Mr Bietman.

26In regard to his culpability for the offending, upon such opening and the circumstances accepted, I find that Charge 1 and Charge 3 are serious examples of those crimes.

27Coming firstly to Charge 3, the circumstances of the aggravated burglary. 
Mr Bietman entered armed, albeit armed with a spanner and as a trespasser, looking to assault Mr Hope. The co-accused entered with a dog.  The complainant was terrified, as were the persons in the house, in particular, her daughter; the complainant in Charge 4.

28I accept, it was made clear by Mr Bietman that they were seeking to find Mr Hope.  In the melee the complainant was in fact bitten by the pit bull dog, and subjected to the use of the spanner and aggressive screaming by Mr Bietman trying to find out where Hope was.  As I have said, the child Charlie was put in fear by the way her mother was threatened and the verbal aggression shown to her mother, as set out in Charge 4.

29Clearly this offending, as the prosecution described it, was highly confrontational.  In this regard I was referred to a number of cases, Comensoli v The Queen [2020] VSCA 2; as to the seriousness of such an attack being undertaken; that is, by way of aggravated burglary upon a person's own home and the breach of integrity that persons are entitled to expect when they live in their own home. However, the differences of course need to be identified; the accused in that case was on his own and did not utilise a weapon.

30I was also referred to Maslen [2018] VSCA 90, in which I was the sentencing Judge, Mr Maslen had graver priors for violence than Mr Bietman has. The attack in that case was at night, the door was kicked in, there was a use of a beanie and gloves, Mr Maslen was in company but there was no assault. The Court of Appeal assessed that an aggravated burglary committed upon a person in their home was an aggravated burglary of a serious kind.

31Such cases, of course, help when assessing the relative seriousness, in the DPP v Meyers [2014] 44 VR 486, [36] sense.

32Mr Sturges, in talking about that relativity and actual culpability, set out the circumstances which he asks the Court to take into account in his written submissions, Exhibit 1, [25] through to [32]. In particular he pointed out there was no forced entry or damage caused by
Mr Bietman.  Secondly, that there was limited planning.  Thirdly, that the circumstances emanating from the aggravated burglary were of limited duration.  Fourthly, that indeed Mr Bietman in fact knew the complainant, however of course that very day the complainant had been subject to violence by him. It was clearly never contested that the complainant was certainly terrorised by this aggravated burglary. The final point made on behalf of Mr Bietman, was that prior to entry, Mr Bietman had advised orally that he simply wanted to get Hope. The point to be made is that the person who had the animus in regard to Mr Hope was not Mr Bietman, but his girlfriend.

33Taking into account those factors put to me on Mr Bietman's behalf by
Mr Sturges, and indeed utilising the cases described as 'yardsticks', one has to take into account, and sentence as the High Court described in Dalgliesh, whereby Mr Bietman is entitled to individualised justice based upon the particular circumstances of this case (see DPP v Dalgliesh (a pseudonym) [2017] HCA 41, [49]). As I have said, in line with the comments in Comensoli, despite the differences, I consider this to be a serious aggravated burglary.

34Mr Sturges also referred to the sentencing snapshots insofar as aggravated burglary was concerned and provided the Court with those, being No.237 of 20, where the medium length of imprisonment imposed for such an offence is three years.

35As to Charges 1 and 4, I have detailed four above.  Charge 1 occurred at the earlier time of approximately 4:00pm when, as I have said, they entered the home without any issues, while the complainant, her friends and family, and their families, were located.  The motivating factor apparently in regard to all of this criminality was that they found Lance Hope to be present.  As I said, earlier that week they had apparently effected painting repairs at the premises and had said that they were there to do further repairs to a wall.

36Having arrived and found Hope there apparently Kerrison objected.  Mr Bietman apparently began a fight with Mr Hope and Hope eventually fled as a result of that fight.

37It was apparent that Mr Bietman did not do too well in the fight.  Kerrison was yelling at the complainant and Mr Bietman, as I have said, took out a large 40 centimetre kitchen knife from the drawer and waved it about the complainant.  She was scared.  She was pushed into the bedroom.  More screaming was going on and use of the knife while she was in the bedroom, and as I have earlier said, on hearing police sirens they left, saying they would be back, which indeed they did.

38Again, such assault was committed in the family home of the complainant with her children and friends present.  Clearly the complainant was terrorised as a result of the use of the knife.  Indeed so much so, as I have said, she failed to make a complaint thereafter because she thought she could sort it out with
Mr Bietman.

39The prosecutor submitted that such offending was protracted and placed the complainant in fear in her own home.  Mr Sturges pointed out that Bietman had only armed himself with the knife, having lost out in the fight with Hope, and that such fight, and indeed the use of the knife, was a misguided display of loyalty to Ms Kerrison, and that is clear and I accept that.  The problem was he then utilised the knife against the complainant.

40I find that Charge 3 is a serious example of common law assault, as is Charge 4, albeit not in anywhere to the degree of Charge 3.

41Coming then to Charge 5.  Such involved four calls on 20 September 2018 to the co-accused, Ms Kerrison, who, as I earlier said, had been known to the complainant for 12 to 13 years.  While still on the phone apparently Kerrison approached the victim at the Latrobe Valley Magistrates' Court.  She told her to write a statement of withdrawal of the allegations and the complainant refused to do so.

42All such calls were recorded on the arunta prison system.  Such is amazing, since in each call, when one reads them, the persons are warned that conversations are being recorded.

43Mr Bietman was instructing Ms Kerrison to threaten the complainant to provide a letter, or to use his words, 'Shit is going to happen and we know where you live' (see the depositions at p.226 to p.227).  He then told Kerrison to 'grab the fucking cunt by the head'.

44My reading of the tapes does not disclose the actual time of approach to the complainant at the Court, but there seems to be no dispute from the admissions made to the prosecution statement, and indeed from the subsequent statement obtained from the complainant, that such an approach was made.

45While the prosecutor submitted such was not a serious example of this very serious crime it was, however, committed while Mr Bietman was on remand and it involved threats being made.

46The defence submitted that the Court should take into account that such was a desperate action of Mr Bietman, after being told by the co-accused, Kerrison, that in fact the complainant was happy to provide such a letter.  There seems to be some substance in that, because if one looks at the depositions there is ongoing contact between Ms Kerrison and the complainant leading up, and indeed there is a suggestion about a letter.

47In the circumstances I see no reason to depart from the assessment made by the prosecution, and confirmed by the submission of the defence, that this should be seen as a low-order offence.

48In the circumstances it is to be noted that such was not successful, that is, the complainant refused to comply and recant in writing, that it was of limited duration and involved only one actual attempt upon the complainant; albeit clearly, from reading the transcript, that it was pre-meditated.

49Balanced against that, of course, as detailed by the Court of Appeal in R vJohns [2010] VSCA 63, [19], general deterrence must be given significant weight, and the maximum sentence here, which I have already indicated, reflects the fact that the crime imperils the proper administration of the criminal law.

50Coming then to the plea.  Mr Sturges tendered Exhibit 1, which is a written submission on behalf of Mr Bietman, and spoke to it.

51Exhibit 2 was the letter to the Court provided by Mr Bietman himself.

52Exhibit 3 and 3A are the two letters, one tendered today, of Mr Brazier from the Uniting ReGen organisation and accompanying certificates insofar as progress and completion reports of programs undertaken by Mr Bietman in prison. The final document relied upon was the psychiatrist's report of
Mr Darjee dated 13 May 2020.

53Firstly, as to Mr Bietman's background history Mr Sturges set those matters out. Such history is consistent with his priors and his previous gaol terms.  Clearly he has had a deprived background and been subject to some severe violence as a child.  As I say, such history is detailed from [4] to [20] of the submission.

54In the psychological report of Mr Darjee at p.5, I want to read what Mr Darjee says of Mr Bietman and this takes up essentially [24] to [28] of that report: -

[24]:

'In summary, he experienced significant adversity in childhood and by his late teens was homeless, abusing substances and involved in offending.  His early abusive and traumatic experiences along with poor attachments and lack of stability led to difficulties with coping with stress, emotional regulation, impulsivity and dealing with conflict.  These difficulties have been exacerbated by alcohol and substance misuse, which he had turned to as a way of coping.  Interpersonal difficulties, stress, alcohol and substance misuse and social instability have led to problems sustaining employment and forming enduring relationships.

With stability, employment and relative abstinence from alcohol and substances he's been able to avoid offending.  He has had periods of low-mood and poor coping, attracting a diagnosis of bipolar disorder, and has been treated with mood stabilising antidepressant and antipsychotic medications.  His offending appears to have occurred in the context of instability, impulsivity, anger, disinhibition by alcohol and substance use and interpersonal conflict.  Such factors seem to have been relevant at the time of the current offences.

He has coped well in prison recently and has not shown emotional instability, anger or impulsive behaviour within that structured environment, and off substances he has made future plans which could decrease his risk of further offending'.

I will not go into [25], which basically talks about the personality issues that he has.

[26]:

'He's had longstanding problems with trust, emotional instability, volatile relationships, impulsivity, poor coping, anger outbursts and resolving conflict.  These difficulties have been persistent and pervasive and have led to significant problems for him and others.  He therefore has a personality disorder with primarily borderline and some anti-social traits.  His traumatic experiences in childhood, along with inherited constitutional vulnerability, contributed to the development of these personality difficulties.

It is important to note that he has had some periods where he has shown an attention to these personality traits, particularly when not abusing alcohol or substances, where he's worked, where life has been free of conflict and stress and where his social circumstances have been stable.  This indicates that his underlying personality disorder is of moderate severity but he may be vulnerable to decompensating when overwhelmed by stress or disinhibited by substances'.

[27]:

'He was not suffering from a mental illness at the time of the offences.  Medication he was ascribed did not make any contribution.  Other factors were more important; disinhibition due to intoxication with drugs and alcohol, the nature of his relationship with the co-accused, his unstable social circumstances and longstanding personal difficulties, as described above.

In terms of treatment, it is important that he addresses alcohol and substance misuse'.

55And as I say, and I pointed out when talking about his priors, he did have that period of stability of four years, demonstrating what he can behave if he is not on substances.

56The principles of Bugmy v The Queen (2013) 249 CLR 571, [26] and [29], apply in the sense that they provide an explanation for both his history of criminality and indeed a background to his crimes. I do take such into account as a mitigating factor to some degree, however I find, as truthfully expressed indeed in his own letter to the Court and as detailed in the psychologist's report, this criminality is correctly described as ice-fuelled violence. Such is acknowledged by Mr Bietman in his letter, Exhibit 2.

57Mr Sturges spoke as to Mr Bietman’s developed insight and his chances for rehabilitation, as I have just detailed, in the report.  Mr Sturges submitted to the Court that for the first time, albeit at the age of 35 and previously being given a number of chances by various Courts and failing to take those opportunities, Mr Bietman has realised that his only future is to take steps, firstly, to control his substance problems, and then to control his tendency to violence, when upset.

58There are indeed some positives which I take into account.  In particular I was impressed by the strong support provided by Mr Shane Brazier, I note his comments in Exhibit 3, which is his letter of 18 October 2009, and I will refer to it as follows.  This relates to the fact that he has been appointed a peer educator at Port Phillip.  That is subsequent to an intensive training program, as is said by Mr Brazier:

'To be selected for the role Mr Bietman was considered a good role model by both staff and peers and had to meet the following stringent criteria; to be incident free for 12 months – that includes violence and drug related matters – present no significant security concerns, have the ability to interact with officers without issue and commit to regular supervision'.

59He goes on to say:

'Mr Bietman continues to perform his duties to a high professional standard and both staff and fellow prisoners have reported to me how approachable he is and how he assists prisoners confidently and confidentially'.

60In Exhibit 2A, tendered today:

'Such strong support has been continued in that it is confirmed that he has maintained the position and continued to fulfil his obligations to the highest standard and continually passed what is called the security intel checks.  He has completed further modules by way of what they call psychoeducational modules and performed his duties to a high professional standard, and one notes when you look at those modules that in each module he has got high level participation engagement notified'.

61While I accept that that is a very positive step, as set out by the psychologist and indeed noted by Mr Bietman himself in his letter, the acceptance by this Court of his ability to rehabilitate must be guarded, given his prior history. However I accept that there have been very positive steps shown by Mr Bietman in gaol and I take into account the very strong support from Mr Brazier.

62In addition, in the plea Mr Sturges put, in conjunction with the matters that I have just rehearsed, that such plea indicates insight, and indeed appropriate remorse, and a desire by Mr Bietman to rehabilitate himself.  The plea itself was utilitarian and assisted justice, which I accept. It was put that he is entitled to an appropriate discount, which I will obviously indicate pursuant to the provisions of 6AAA, and I accept that such is indicative of remorse.

63The current COVID-19 circumstances were put to me.  I accept those totally.  For the last eight weeks, as I understand it, most prisons - including where
Mr Bietman is – have been subject to at least half-day lockdowns, the stress of the risk of such issue.  I also note in his letter his desire to at last take steps to ensure that his life is crime free so that he in fact has the ability to be able to enjoy life with his three children.  Clearly, given their ages of 12 to nine, if he does not complete those steps now that is simply never going to happen.

64Mr Sturges also put to this Court the need for a significant degree of concurrency insofar as Charges 2, 3 and 4 are concerned and I consider that appropriate.

65Mr Bietman, I have taken into account all matters put on your behalf and the submissions put to me, particularly in taking into account your progress in prison. The sentence I propose to impose is as merciful as can be in the circumstances.

66Mr Bietman, please stand.

67Insofar as the sentencing, as to Charge 1, the charge of unlawful assault, you will be sentenced to a period of imprisonment of one year.

68In regard to Charge 2, imprisonment of two months.

69Charge 3, which is the major charge, the aggravated burglary, imprisonment for two and a half years.

70Charge 4, of common law assault on Charlie Wilkinson, imprisonment for nine months, and Charge 5 the serious charge of attempt to pervert the course of justice, in all the circumstances you will be sentenced to a period of nine months.

71On the Summary Charge 7 I impose a period of imprisonment of one month.

72Using Charge 3 as the base sentence, that is, the two and a half years, I order that six months of the sentence imposed in regard to Charge 1 and three months of the Charge 5, that is the pervert justice charge, be served cumulatively upon each other and upon the base sentence, making a total effective sentence of three years and three months.

73Pursuant to s.11 of the Sentencing Act I order that you serve 24 months before being eligible for parole.

74Pursuant to s.18 of the Sentencing Act I declare that the 683 days of which you have served by way of pre-sentence detention be taken into account as part of this sentence, and be deemed service of this sentence, and that a record of such be noted in the records of this Court.

75Insofar as Parliament's requirement for me to indicate the actual value to you of the plea of guilty, as set out in s.6AAA, it is somewhat difficult in this case because of the multifarious factors. However doing as best I can to comply with Parliament’s wishes, insofar as the total effective sentence is concerned instead of a total effective sentence of three years and three months,
Mr Bietman, had you not pleaded guilty the total effective sentence would have been four years and four months, so the benefit to you is obviously the difference between those.

76Mr Bietman, I have said I am guarded as to your future and that is because of the need for you to have the strength, and I understand these matters are not easy, but so far you have done pretty well in gaol, but you have got to have the strength to stay away from substances when you get out of gaol.

77As I said, it may be said that the sentence I have imposed upon you is merciful. However you are now 35, you have had now two significant sentences, including this, of three years.  You have had a history of violence.  Clearly, as you have recorded in your letter, you must stop drugs, otherwise you have a life ahead of you of gaol time and no enjoyment of your children.  I can only wish you well in all the circumstances.

78OFFENDER:  Thank you, sir.

79HIS HONOUR:  Any matters that I need to raise?

80MR STURGES:  No, Your Honour.

81HIS HONOUR:  All right, Mr Bietman.  Good luck.

82OFFENDER:  Thank you, sir.

83HIS HONOUR:  Keep up the good work, all right?

84OFFENDER:  Thank you.

85HIS HONOUR:  Thank you.

86MR STURGES:  As the Court pleases.

87OFFENDER:  Thank you, Your Honour.

88HIS HONOUR:  Yes, thank you.  So I thank both counsel for their assistance in the matter.

89MR STURGES:  As Your Honour pleases.

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