R v Lovett

[2008] NSWDC 302

CITATION:	R v Lovett [2008] NSWDC 302
HEARING DATE(S):	28 March 2008 1 April 2008 9 April 2008
JUDGMENT DATE:	9 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	CONVICTED. Sentenced to a non-parole period of 3 years & 6 months commencing 22 January 2007 and expiring 21 July 2010. Additional 18 months to expire 21 January 2012.
CATCHWORDS:	Maliciously inflict grevious bodily harm - Plea of guilty - Domestic violence and deterrence in sentencing
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	R v Hamid [2006] NSWCCA 302 R v Edigarov (2001) 125 A Crim R 558
PARTIES:	Regina Stephen John Lovett
FILE NUMBER(S):	2007/00010773
COUNSEL:	Ms. J. Healey (Accused)
SOLICITORS:	Ms. L. Cocca (Crown)

JUDGMENT

1 HIS HONOUR: The offender, Stephen John Lovett, appears for sentence following his plea of guilty to the offence of maliciously inflicting grievous bodily harm. The offence is contrary to s 35(1)(b) of the Crimes Act 1900 and carries a maximum penalty of seven years imprisonment. The offender has also requested that three further matters be taken into account on a Form 1 schedule. Exhibit A contains the agreed statement of facts. It reads as follows:

The offender and victim, Penny Watson, were in a relationship for about 18 months. They lived together in Airds before they both went to prison for stealing offences. The offender was released in September 2006 and the victim was released in November 2006, at which time they recommenced their relationship although they did not live together. Apparently the relationship was a rocky one with previous violence. In December 2006 the offender went back into prison for breach of parole and the victim decided to end the relationship and she commenced a relationship with another man.

On 15 January 2007 the offender appeared at Moss Vale Local Court where he was given conditional bail. One of the conditions included that he not visit the townships of Mittagong, Moss Vale and Bowral and he was to reside at 15/2 Greenacre Road, Wollongong. At about 7.20pm on Friday 19 January 2007 the offender was located in Moss Vale in breach of his bail conditions and was arrested, he was then refused bail. On 20 January 2007 he appeared at the Parramatta Bails Court and was granted bail on the same conditions as before. Upon his release the offender contacted the victim by telephone and asked her to come to Campbelltown and see him. The offender then caught a bus from Campbelltown to Mittagong in breach of bail conditions. The victim phoned the offender a couple of times and he told her that he was about 20 minutes away. The victim met the offender in Mittagong near the train station, they walked to her place at 1 Crimea Street, Balaclava (Mittagong) where they then both consumed an unknown amount of alcohol. At about 9.30pm the offender went to sleep on the victim’s bed whilst the victim stayed up for some time until she fell asleep on the couch.

On 21 January at about 2am the offender awoke wanting more alcohol and an argument followed between the offender and the victim. The offender shoved the victim in the stomach pushing her down. When the victim went to get up then he kicked her in the stomach area. The victim had previously told the offender she was pregnant with his child, this was in fact not true. He apologised and he kissed her and told her he was sorry. They then both went to lie down and they fell asleep until about 4am.

A few hours later the victim got up to use the toilet and noticed she was bleeding. The offender told her she should call an ambulance and she did so. Phone records show that a call was made at 6.30am. The ambulance arrived and then the police arrived about 7.48am. Police spoke to the victim and observed that she was well affected by alcohol. She was asked if she needed medical attention but she declined and she did not tell them that the offender was in the house. Police and ambulance then left. The victim was still in pain so she went back to sleep and so did the offender.

Around lunch time that day the offender and the victim got out of bed and they began to consume more alcohol. The victim stated that she only had two drinks. The offender became drunk and became violent towards her so she waited for him to go to the bathroom so she could hide the alcohol from him. However, when the offender returned from the toilet he became enraged, began to berate and abuse her, calling her a whore and a slut. The victim told the offender not to call her that. The offender then came face to face with the victim and said, “What are you going to do about it”.

A struggle ensued between the victim and the offender in the kitchen over a knife, as a result of which the victim and the offender sustained cuts to their hands. The victim managed to break away for a brief moment but the offender followed her into the dining room and grabbed her by the hair. He began to physically assault the victim by punching her a number of times to the head, face and body. Whilst he was assaulting her he said to her a number of times, “You fucking bitch, you fucking slut I’m going to kill you”. The victim kept screaming for help and for someone to call the police but when she called for help, the offender grabbed her by the throat, started to choke her with his left hand while punching her with his right hand and saying things like, “You’ll be dead by the time I’m finished with you, I’m going to fucking kill you”. The victim was scared, she was begging with the offender not to hurt her.

The offender then dragged her to the ground and dragged her around the dining room area by the hair. After some time the offender let go of the victim’s hair and walked back into the kitchen. The victim then saw the victim washing blood off. She said to him, “Look at you trying to wash away the evidence”. The offender came back to her, kicked her in the stomach which did not result in any further injuries. He also began to punch her again around the head, body and arms, she then lost consciousness.

When she regained consciousness she contacted triple-0 and asked for police and an ambulance. Records obtained from the Sydney Communications Centre say that the triple-0 call was made at 10.03pm. Phone records show that the triple-0 call made by the victim was made from a mobile phone belonging to the offender which had been left by him at the victim’s home. Police attended the location a short time later and secured the crime scene. The victim was taken to Liverpool Hospital and treated for injuries.

2 A scientific examination of the premises was conducted by forensic police and a number of items were seized.

3 A statement was obtained from Dr Clair Shine stating that as a result of the assault the victim received several injuries including bruises, possibly fingers gripping on neck and both upper arms, small laceration on the right middle finger, a left orbital fracture, displaced zygoma frontal suture and nasal bone fracture. The victim required follow up facial reconstruction including the insertion of metal plates in her cheek and eye socket. A statement from Dr Loizou states that a CT scan of the head showed multiple fractures to the facial bones, namely fractures to the left orbit laterally and inferiorly and fractures to the maxillary sinus anteriorly and posteriorly. He further stated that these injuries, together with the multiple superficial facial injuries, cuts and bruises are consistent with multiple blunt force blows to the left side of the face consistent with the assault. He further stated that her injuries were substantial and it would have taken a large amount of force or repeated vicious blows to the victim’s face to cause such injuries.

4 On 22 January 2007 the offender attended Wollongong Police Station for the purpose of reporting. He was arrested and taken into custody. Investigators from Bowral detectives were notified. They travelled to Wollongong. The offender refused to answer any questions in the course of the interview that followed and it was terminated. CCTV footage obtained from the Mittagong train station shows the offender at the station about 8.34pm on the evening of 21 January 2007. He was wearing the same clothes as identified by the victim in her statement. About 8.50pm he is seen getting on a bus at Mittagong bound for Campbelltown. CCTV footage obtained from Campbelltown train station shows the offender getting off the bus from Mittagong at 9.40pm. At 9.54pm the offender is seen making a phone call from a public telephone booth at the train station. Phone records obtained by police show that the phone call made by the offender on Sunday night at 9.54pm was to his mother apparently asking her to come and pick him up from Campbelltown railway station. Police spoke to the offender’s mother who confirmed that she did indeed pick her son up at the Campbelltown railway station, that he stayed the night and then she drove him to the train station the next morning at 7.30am.

5 Also included in that statement of facts are facts relevant to the three further matters on the Form 1. First of all malicious damage:

When the victim regained consciousness it was dark and she saw that her place had been ransacked, her furniture had been overturned and there was damage to her walls. She noticed that the offender was not there and that his jeans and shirt that he had been wearing were on the kitchen floor soaked in blood. She went into her bedroom and saw that her room had been trashed, all the drawers had been pulled out the cabinets and her things were thrown across the floor.

6 In respect of the remaining two matters being steal from dwelling and obtain money by deception:

The victim remembered that she had hidden her purse in a cupboard above the microwave oven in the kitchen. She went to have a look and noticed it had been removed from where she had it. She looked inside her purse, she saw that her cash and her Commonwealth Bank Easycard were gone. The offender knew the PIN number to this card as he had seen her use this card before. This card was located upon the offender when he was arrested. Police obtained bank statements from the victim’s Commonwealth Bank account which shows that on 21 January 2007 there was an account balance enquiry made at the ATM Mittagong at 8.07pm followed by a withdrawal from the ATM in the sum of $60.

7 Exhibit B is a series of photographs including those indicating specific facial injuries suffered by the victim. This was nothing other than a vicious, cowardly attack upon a person who was simply unable to protect herself against the offender’s onslaught. My assessment of the objective seriousness of the offence is that it falls above the mid range of objective seriousness. Ms Healey for the offender in the course of submissions conceded that it fell, she said, between the mid to higher end of the range. The courts have emphasised that violent attacks in domestic settings must be treated with real seriousness, specific and general deterrence, denunciation of the offending conduct and protection of the community are specific factors to be taken into account on sentence (see R v Hamid [2006] NSWCCA 302). Also in R v Edigarov (2001) 125 A Crim R 558 Woods CJ at CL stated at para 41:

“...such conduct is brutal, cowardly and inexcusable and the courts have a duty to ensure that it is adequately punished and that sentences are handed out which have a strong element of personal and general deterrence”.

8 A victim impact statement was received pursuant to s 28 of the Crimes (Sentencing Procedure) Act (see exhibit D). I have considered that statement. The harm to the victim is a relevant consideration in sentencing and, of course, I have had regard to it in assessing the objective seriousness of the offence. However, as the infliction of grievous bodily harm necessarily involves “substantial injury” I do not take this into account as an additional aggravating factor under s 21A(2)(g).

9 I now turn to the subjective material in respect to the offender. He is now forty-two years of age. His criminal antecedents are not such as would entitle him to any leniency whatsoever. The pre-sentence report (dated 28 March 2008) prepared by Ms Linda McEwan, Probation and Parole Officer, is exhibit E. She states that the offender is the youngest of three children he reported that his parents marriage ended when he was approximately one year old. She said that the offender has had no substantial contact with his father. The offender stated that he enjoyed a good childhood but further commented that he was a “handful” for his mother to manage.

10 The offender left high school aged sixteen years after completing his school certificate. Since leaving school the offender has worked primarily in the truck haulage business. His longest period of continuous employment was seven years, he stating that he left that position in order to work for another company. He also stated he worked for this company for three years before losing his drivers licence in 1999. Since then he has not held stable employment.

11 The probation officer stated that the offender has a twenty-one year old son from a previous relationship who has lived with him from age twelve. The offender commented on his parenting skills by stating that he “probably only met his son’s needs by way of providing a bed and some food for him”. He stated that his alcohol abuse “blunted” any sort of emotional relationship he may have had with his son.

12 Under the heading of “Health/Mental Health Issues” it was noted that the offender had a history of depression which until this period of remand had been untreated. The offender stated he had attempted suicide five times since 1999 mostly from overdosing on illicit or prescription drugs. He indicated as a result of his unsuccessful suicide attempts he began to abuse alcohol further in an attempt to harm himself. It was noted that he is currently prescribed Avanza (an antidepressant medication) and the offender stated that he considers that it has helped him feel positive about the future. He is also prescribed Campril, a medication that controls craving for alcohol. He stated that he now has no inclination to consume alcohol and can see the damage that his alcoholism has caused him over the years. In respect of that issue he indicated to the probation officer that he had consumed alcohol since about the age of fifteen. He further stated that his consumption became problematic after he his first lost his drivers licence in 1999. He stated he was addicted to heroin for a period of twelve months but participated in a methadone program although he has since stopped taking methadone as well. He stated he has used amphetamines on a recreational basis. He said he did not consider the substance use to be problematic. He claimed that in 1999 he “lost all hope” and his consumption of alcohol escalated out of control. He stated that at its peak he would consume 4 litres of wine a day and would require alcohol first thing in the morning. Over the years he has attempted detoxification on three separate occasions but admitted that the longest period of time (prior to this period of remand) he was free from alcohol was when he was incarcerated for six months in 2005.

13 Since being on remand the offender has completed the SMART (AOD) program which is a twelve session program designed to assist participants to make positive changes in thinking and actions. The program promotes motivation to abstain, increased coping and problem solving skills and lifestyle balance. Mr Lovett informed the probation officer that he intends to attend SMART community meetings upon his release. Specifically in relation to this offence he acknowledges that he took responsibility for his actions on this day but the probation officer said he appeared to minimise this by stating that he was “out of control” and had consumed approximately two bottles of bourbon, six cans of beer and two bottles of red wine in the previous forty-eight hours. He was assessed as both unsuitable for a community service order and ineligible for a periodic detention order.

14 Exhibit 1 is a report of Mr Peter Champion, Clinical Psychologist. It contained a detailed background history and on p 8 of that report Mr Champion stated as follows:

“I received no report at the time of the offending behaviour Mr Lovett was suffering from a medical or a neurological condition (eg poorly controlled diabetes, epilepsy, brain injury, dementia) having the potential to impact on judgment or behaviour. I received no report of a typical impairment of consciousness (other than through intoxication) at the pertinent time. I received no report that at the pertinent time Mr Lovett was suffering from active symptoms of mental illness (psychosis, mania et cetera) likely to impact on behaviour or judgment. He denied having ingested illicit substances at or about the time of the offences”.

15 Mr Champion also stated:

“In relation to the issue of remorse/contrition I was concerned that Mr Lovett tended to harp on the fact that the violence between he and the victim had not been one sided though in the end he did not seek to excuse his behaviour on this basis rather to partially explain it. He went on to speak at some length about his feelings of shame, shame in particular the victim had received the level of injuries she had received and that even while he could not see her as blameless he did not believe that she had deserved to receive such injuries. He spoke of having read the reports as to her injuries and physically ‘wincing’ (his word) about the pain he imagined she suffered”.

16 Mr Champion concluded by stating:

“In terms of risk factors which clearly appear to be present there is a history of relationship instability, of employment problems, of substance use problems, of major mental illness, of early mal adjustment arguably a personality disorder (or at least personality distortion), of prior supervision failure, of impulsivity or poor response to treatment and past remediation attempts. There is also the likelihood of future exposure to destabilisers (alcohol for instance or mood disturbance) and on the face of it a lack of personal support (from family for instance) and the likelihood that he will find himself under stress”.

17 Mr Champion also commented that he would benefit from inclusion in a violent offenders program or at a bear minimum that he receive assistance with anger management. He also commented that he should be assisted in his attempts to access educational and vocational courses.

18 Ms Healey submitted that the offender is now attempting to make some significant changes to his life as evidenced by his completion of the SMART (AOD) program and his express intention to attend SMART community meetings upon his eventual release.

19 The probation officer’s report also indicated that the offender commenced working in Corrective Services Industries in July 2007 and is considered a consistent and reliable worker and is well regarded by officers.

20 The offender’s handwritten letter is exhibit 3. Ms Healey submitted that that letter is an indication that the offender now has a realisation of the triggers that have contributed to his past offending and that it would give the court positive hope for his future rehabilitation. The concluding portion of his letter is as follows:

“I have a new desire to regain my heavy vehicle licence and gain employment upon my release from prison which would not be available to me if I continue my present path. Since the loss of my licence in 1999 my life has gone from bad to worse. I wish to turn my life around by taking positive steps towards rehabilitation. If consideration is given for my current matters it is my aim to pursue further help for myself with prison and community based programs which in the past have not interested me.

I would also like to apologise to Penny for the suffering this has caused and also to my son, Ben, and my mother who also in a way have become victims because of my alcoholism”.

21 The offender is entitled to have his plea taken into account in mitigation of penalty, this is done on two bases, to reflect the utilitarian benefit to the criminal justice system and to reflect contrition.

22 The matter was committed for trial from the Wollongong Local Court on 20 June 2007. It was then listed for arraignment on three occasions throughout August and September. On 17 September 2007 the parties indicated that a plea of guilty would be entered but that there would be a dispute on the facts. Consequently a disputed facts hearing was set down for 26 September 2007. On that day the court was informed that negotiations had broken down, nevertheless an indictment was presented and pleas of guilty were entered to some counts on the indictment but with there being no agreement to the facts, the Crown indicated to the court that it was not prepared to accept those pleas in satisfaction of the indictment.

23 The matter was then listed for trial on 4 February 2008. On 29 January 2008 the court was advised that this was likely to be a short matter, however, the trial date of the 4th was confirmed. On 4 February 2008 an amended indictment was presented by the Crown containing two counts, the offender in effect pleaded guilty to the second count which was in the alternative, this was the count of maliciously inflicting grievous bodily harm. The Crown accepted his plea in full satisfaction of the indictment. Under these circumstances the utilitarian benefit to the criminal justice system is limited. My assessment of that benefit will be reflected by a discount of about 10%.

24 I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act and having considered all possible alternatives and the objective seriousness of the offence I am satisfied that no penalty other than imprisonment is appropriate.

25 The offender’s record indicates that there have been substantial periods of time when he has managed to stay on the right side of the law. If, according to his letter, exhibit 3, that at forty-two years of age he has finally begun to make significant changes and is intent on changing his life around then his prospects of rehabilitation may be viewed in a positive light. Upon the conclusions expressed by Mr Champion the offender will require an extended period of supervision to assist with his rehabilitation back in the community. I am therefore satisfied that sufficient reason exists to find special circumstances and to vary the statutory ratio. Yes would you please stand Mr Lovett.

26 You are convicted of this offence and I sentence you to a non-parole period of three and a half years to date from 22 January 2007 and to expire on 21 July 2010. I sentence you to an additional period of eighteen months to expire on 21 July 2012. In fixing this sentence I have taken into account the three matters on the Form 1 schedule.

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