County Court

  • DPP v Buck [2021] VCC 759 (11 June 2021) – Victorian County Court
    Damaging property’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Strangulation’ – ‘Weapons and threats to kill

    Charges: Criminal damage; Common assault; Conduct endangering serious injury; Intentionally cause injury; Threat to kill; Trespass; Indictment offence on bail; Persistent Breach of Family Violence Intervention Order.

    Proceedings: Sentencing.

    Facts: The male offender and female victim had been in a relationship for approximately four months. The offender ripped her clothes off and hit the back of her head with a hair dryer multiple times. He punched her five or six times to the face, and stomped on her head and chest several times. He strangledher, threatening to kill her, and she felt unable to breathe. At one point, the offender chased the victim into the street and threatened to kill her while brandishing a knife. He also caused property damage and assaulted the victim’s housemate (who tried to intervene). The victim’s children were present at the time of the offending. The victim sustained many injuries, including exposing her bone and skull. A Family Violence Intervention Order was imposed and, despite the order, the offender telephoned the victim from custody on 12 occasions, but desisted once the victim told him to stop.

    Issues: Sentence to be imposed.

    Decision and reasoning: A sentence of 3 years 5 months imprisonment with a non-parole period 2 years was imposed.

    Assessed in the context of an intimate relationship, this was a reasonably serious example of causing intentional injury for the following reasons:

    • It was an assault on the offender’s partner who was entitled to his care.
    • The offending occurred in the victim’s home, where she should have felt safe.
    • The offender used a household item as a weapon, hitting the victim to her head repeatedly to a point where she was feeling dizzy. The victim said she felt unable to stand up, had blood in her eyes and her head was throbbing. The physical injury to her head was a result of those repeated strikes. The offender continued to assault her, despite her state and her pleading with him to stop.
    • The assault was protracted, moving between various rooms in the house, out onto the street and back into the house.
    • The acts of violence against the offender’s partner “were not only physically violent, resulting in her injuries, but they were degrading, including stripping her naked. One neighbour refers to her running naked in the street, bloodied and bruised.”
    • As part of the episode, the offender choked her. The victim described feeling unable to breathe and wondering whether she would be able to do so again. There were marks around her neck from that part of this event. During that event, he made the threat to kill her which must have been terrifying given the context of that threat. He later made a threat when brandishing a knife.
    • The offender continued to attack the victim, despite the intervention of the victim’s housemate.
    • The acts occurred in the presence and hearing of the victim’s children, which was most disturbing. As his Honour noted: “The fact that a 12 year old had to call police because you were violently assaulting her mother is reprehensible. [The victim’s] daughter was extremely courageous and showed wisdom beyond her years in doing what she could to try and get police to the scene.”
    • The offender’s assault on the victim’s housemate demonstrated the offender’s level of aggression.
    • “Despite the fact I have not received a victim impact statement, I can well anticipate that Ms Brewer suffered distress, humiliation and fear during this offending, and that she is likely to have experienced some ongoing trauma as a result. Those matters would only be exacerbated in my view, by the presence of her two daughters and her feelings of concern for them.”

    The principles from Bugmy v The Queen were applicable in this case (disadvantage and events during his formative years) and somewhat reduced the offender’s moral culpability. He pleaded guilty. There was an intervention order protecting the victim and the offender had shown no desire to try and contact her now.

  • DPP v Vickers (a pseudonym) [2021] VCC 445 (16 April 2021) – Victorian County Court
    Coercive control’ – ‘Detention for a sexual purpose’ – ‘Low cognitive functioning’ – ‘Moral culpability’ – ‘Objective seriousness’ – ‘Offender in relationship with victim from under the age of 16’ – ‘People affected by trauma’ – ‘Rape’ – ‘Separation’ – ‘Suicide threat’ – ‘Young people

    Charges: Rape (rolled up charge, 3 separate incidents) x 1; Detention for a sexual purpose x 1.

    Proceedings: Sentencing.

    Facts: The male offender was 23 years old at the time of the offending and the female victim, his partner, was 32 years old. The offender had been groomed by the victim since he was a child, with sexual and then de facto marital relationship commencing when he was a child.

    Issues: Sentence to be imposed.

    Decision and reasoning: A total effective sentence of 6 years and 9 months was imposed, with a non-parole period of 3 years and 10 months.

    The court noted the seriousness of rape as an offence. The objective gravity of the offender’s offending (as rolled-up charges) was high.

    The court noted at [41] that: “This case is an example of controlling and violent conduct borne out of an inability to accept and negotiate the end of the relationship – culminating in the heinous and devastating offence of rape. It is reprehensible conduct of the highest order and must be deterred and denounced.” And at [42]: “The impact upon the victim also needs to be given proper weight in the exercise of my sentencing discretion. Your victim states that she has had suicidal thoughts, has been diagnosed with anxiety, depression and PTSD, and is having counselling. The offending has also impacted the children, who are anxious and withdrawn.”

    Age disparity between the offender and victim alone would have had limited impact in assessing the circumstances of the offending and offender’s moral culpability. But, in combination with the following factors, the circumstances of the relationship were more significant:

    • The offender was diagnosed with ADHD in Grade 3;
    • He had difficulties at school and is dyslexic;
    • He suffers hearing impairment, requiring hearing aids;
    • He has low intellectual functioning;
    • He became a father when he was a child and by 20 was working to support a house of three children;
    • To some degree, the offender was subject to some manipulation/control in the form of managing his medication and access to hearing aids, particularly leading up to the offending;
    • The relationship was his first sexual relationship. It was his “only experience of a relationship and your attitudes and strategies for dealing with conflict have been shaped within a relationship that commenced when you were a child.”

    The offender required specific deterrence, treatment and programs to ensure he did not repeat this offending. Denunciation and general deterrence were also important sentencing considerations: “All potential perpetrators who may feel aggrieved within a domestic relationship and who lack the skills, intelligence, maturity and emotional control to relate to a partner or ex-partner in anything other than a violent and controlling way – must be deterred” at [55].

  • DPP v Senior (a pseudonym) [2020] VCC 1380 (2 September 2020) – Victorian County Court
    Arson’ – ‘Domestic violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Separation’ – ‘Threats to kill

    Charges: Contravention of a DFV protection order x 1; Arson x 1.

    Proceedings: Sentencing.

    Facts: The male perpetrator plead guilty to breach of a protection order by threatening to kill his female former partner and arson. After an argument the offender called his former partner and threatened to ‘come to her house and blow her and her family up’. He entered her home, and despite his father’s atempts to calm him, threw thinner over the couch and lounge room floor, stating he would burn the house down with his former partner in it. Some of the thinner (accidentally) caught fire on the gas heater causing an explosion. The offender and his father escaped the fire; however, the house was destroyed.

    Issues: Sentencing.

    Decision and reasoning: Sentenced to time served, followed by a community corrections order for 12 months with conditions designed to continue rehabilitation by way of supervision, mental health and programs to reduce reoffending.

    [16] You are fortunate that your vile threats of harm did not cause further injury or damage to your son and his mother. Arson is a very serious offence. In the circumstances of this case, you allowed your rage and anger to get the better of you in a situation in which you recklessly used an accelerant which you well knew and believed would probably result in damage or destruction to property. It is important in your case, as the learned prosecutor made clear very fairly during the course of the plea, that two factors need to be recognised.

    [17] The first is that this was not a case in which you burnt down a property either to damage it intentionally or to prevent or deny another its enjoyment or ownership, and that having properly classified and understood the modus in which the fire started in a seemingly accidental way which nevertheless carries the inference of intention, and secondly, that your intention at the time was to hurt yourself by fire, even endangering your own father; intent which should be also noted you put into effect, not by arming yourself with an accelerant fuel but because your work made it available to you through a thinner which you already had available to you.

    [18] The circumstances significantly reduce in my view the gravity of the offending and your moral culpability. You have, by your plea, accepted responsibility legally and I accept you are remorseful for your actions.

  • DPP v Jenkins [2020] VCC 749 (4 June 2020) – Victorian County Court
    Covid-19 pandemic’ – ‘Following, harassing and monitoring’ – ‘Guilty plea at commencement of trial’ – ‘History of domestic violence’ – ‘Lengthy procedural history’ – ‘Obsessive and controlling behaviour’ – ‘People affected by substance misuse’ – ‘Persistent offending’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Separation’ – ‘Sex offender registration’ – ‘Significant criminal history’ – ‘Stalking

    Charges: 11 charges, including rape x 2; destroying or damaging property x 1; causing injury intentionally or recklessly x 1; threats to kill x 3; assault x 3; stalking x 1

    Case type: Sentence

    Facts: The majority of offending was committed against Ms Burgess (the victim), with whom the male accused was in an intimate relationship ([12]). Their relationship was marred by excessive drug and alcohol consumption, physical and sexual violence and stalking. The accused regularly argued with the victim about his paranoid suspicions concerning her infidelity ([13]). The controlling and obsessive behaviour became more severe over time. On one occasion, the victim threatened to stab him before self-harming, demonstrating the level of stress she was suffering at the time ([17]). The accused’s controlling behaviour continued. He checked her emails and social media accounts, accessed her phone without permission and tracked her location. He also broke her phone after she refused to give it to him ([18]-[20]).

    On 5 October 2017, he raped ([23]-[24]) and physically abused the victim ([25], [27]) and threatened to cut her throat ([26]). A week later, he pushed the victim to the ground after she had told him that their relationship was over and demanded him to leave the premises ([29]). After this incident, the accused was arrested, and released on bail with conditions prohibiting contact with the victim ([30]). Despite this order, he continued to text and ring the victim, track her location and loiter near her home. One evening, the victim allowed the accused to enter her house, where he accused her of sleeping with other people, physically assaulted her and grabbed her phone ([34]-[40]). The accused continued to contact the victim, causing further distress and fear, and later threatened to cut the victim’s and a police officer’s throat ([41]-[43]).

    There was a significant delay in resolving the matter, and the accused was unrepresented for most of the proceeding, including the plea hearing. His guilty pleas were entered at the commencement of trial ([51]-[52]). The Court held that "the fairest and most appropriate course" was to ensure that he was not punished for adopting a "somewhat uncooperative approach" ([56]), and that his guilty pleas still entitled him to a sizeable reduction in sentence ([57]).

    Held: The accused’s personal circumstances and criminal history are discussed at paragraphs [58] to [75]. He abused alcohol and drugs from an early age, and had previously seen doctors for drug dependency, depression, drug psychosis and attempted suicides. Although he had suffered numerous head injuries, a neuropsychologist concluded that he did not have an acquired brain injury ([64]-[65]). He also has a significant criminal history, including past convictions for recklessly causing injury, indecent assault, contravening a family violence intervention order, and making threats to kill ([69]-[70]). He has also been convicted of a number of offences against former intimate partners and has breached a family violence safety notice on several occasions ([71]-[73]).

    The Court found that the accused’s conduct was "absolutely appalling". He had "gained [the victim’s] trust and formed an intimate relationship with her only to go on to degrade and demean her at the whim of [his] paranoid obsessions". The rape, assaults and threats to kill demonstrated the kind of behaviour to which she was subject for the duration of their relationship ([85]). The rape was particularly serious, because it was committed in the context of an initially trusting and intimate relationship, and involved the use of force and violence ([86]). The charge of stalking was also serious as the accused went to great lengths to control and abuse the victim in a "pathologically unfeeling" manner. He also knowingly disregarded court orders intended to protect the victim from his conduct ([87]). The Court assessed his moral culpability for the offending as "very high", and accepted the prosecutor’s submission that the physical and sexual violence he inflicted on his partner requires just punishment and strong denunciation ([88]). Further, the accused had prior convictions, indicating a tendency to treat intimate partners violently ([89]). The accused appeared to have some "incipient insight" into his conduct and the necessary steps to address his drug problem and attitude towards women ([92]). Whilst he apologised for his behaviour, the Court did not place a great deal of weight on that assertion as there was no evidence that indicated that he was genuinely remorseful for the harm caused to the victim. The Court was also not confident of his prospects for rehabilitation, but took into account that any sentence imposed must not be crushing ([93]).

    Consequently, the Court granted the Crown’s application to have the accused report under the Sex Offenders Registration Act 2004 for the "rest of [his] life" as he poses a real risk to the sexual safety of women ([95]-[101]). He was convicted of all charges (except one count of rape), and was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 7 years ([115]).

  • Director of Public Prosecutions v Linton [2020] VCC 515 (28 April 2020) – Victorian County Court
    Female perpetrator’ – ‘History as victim of family and domestic violence as child’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Substance misuse’ – ‘Verdins principles’ – ‘Weapon

    Offences: Recklessly causing serious injury x 1; Possessing drug of dependence x 1

    Proceedings: Sentencing

    Facts: The female offender and male victim had been in a relationship that ended six months prior to the offending, but had started spending time together one to two months before the offending. One night, the offender picked up the victim from a pub and they visited the victim’s cousin’s house where they played pool and used drugs. The offender and the victim left around 2am and returned to the offender’s bungalow where an argument broke out. The offender stabbed the victim on the left side of his chest with a pair of scissors. The victim left the bungalow and called emergency services. The offender sent text messages to the victim asking him if he was alright, but the focus of the messages was very much on the offender’s own needs. The victim suffered a left haemopneumothorax, haemopericardium, a punctured lung and fluid overload, and was admitted to the ICU. The victim initially attempted to protect the offender by not telling police she was the one who caused the injuries, and the offender feigned ignorance when questioned by police, but later the victim told police what had really happened.

    Judgment: The sentencing judge ordered that the offender be placed on a community corrections order for three years during which the offender was to complete 300 hours of community work and participate in rehabilitation programs for drug use and mental health issues. The judge also ordered that the offender be subject to judicial monitoring. Her Honour held that "a community corrections order can be punitive, achieve deterrence, and may be suitable even in cases of relatively serious offences such as this, which might have previously attracted a medium term of imprisonment" [72].

    Her Honour held that the offender "committed a serious criminal offence with serious consequences" for the victim by inflicting an injury when the victim "had little, if any, chance to know what was happening", using a hidden weapon [19]. However, her Honour accepted that the act was impulsive, without premeditation, and that the actual consequences of the attack were "probably unintended" [20].

    Her Honour emphasised the need to give significant weight to general deterrence, as the offence was committed in a domestic violence setting [21]. However, she noted several factors that impacted on the weight to be given to general deterrence in this case. Specifically, the offender’s young age, the offender suffered physical and emotional abuse from her former stepfather (and witnessed her mother being subjected to this too) and older brother, the offender abused drugs, the offender had an unstable and volatile upbringing, and the offender had a long history of mental health issues. Her Honour accepted that the offender had committed to positive change and had engaged in a variety of alcohol and drug treatment programs. She also accepted that the offender had personality difficulties which, when combined with her use of ice and other drugs, resulted in difficulty thinking clearly and rationally and impaired her judgment at the time of the offence [43]. Her Honour accepted that there was therefore a basis for limited reduction to moral culpability for the offences [44].

    Her Honour somewhat applied limbs 5 and 6 of the decision in R v Verdins & Ors [2007] QSCA 102. Limb 5 refers to the existence of a condition at the date of sentencing which may mean that a given sentence would weigh more heavily on an offender than a person in normal health. Limb 6 refers to a serious risk of the imprisonment having a significant adverse effect on mental health. The judge noted the effects of the COVID-19 pandemic on the offender if she were to be imprisoned, particularly in light of her mental health issues and her strong family support base (which she would be unable to access if imprisoned).

    Her Honour held that less weight needed to be given to specific deterrence and protecting the community from the offender because of her lack of criminal history. A discount was given to recognise the utilitarian benefit of the offender’s early guilty plea.