DPP v Da Luz [2017] VCC 172 (3 March 2017)

Last Updated: 9 March 2017

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IN THE COUNTY COURT OF VICTORIA

AT HORSHAM

CRIMINAL DIVISION

Case No. CR-16-01644

DIRECTOR OF PUBLIC PROSECUTIONS Prosecution

v

STEVEN RAYMOND DA LUZ Defendant

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JUDGE: His Honour Judge Murphy

WHERE HELD: Horsham

DATE OF HEARING: 2 March 2017

DATE OF SENTENCE: 3 March 2017

CASE MAY BE CITED AS: DPP v Da Luz

MEDIUM NEUTRAL CITATION: [2017] VCC 172

REASONS FOR SENTENCE

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Subject: Criminal Law – Sentence

Catchwords: Sentence – domestic violence – intentionally cause injury – making threats to kill – criminal damage – offending occurred whilst under the influence of methylamphetamine – offending occurred in the presence of young children – offending occurred over four day period – period of imprisonment warranted with non-parole period

Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: -

Sentence: Total effective sentence of 3 years and 5 months

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APPEARANCES: Counsel Solicitors

For the Crown Mr P Bourke Office of Public Prosecutions

For the Defendant Mr H Rattray David Barrese and Associates

HIS HONOUR:

1. Steven Raymond Da Luz, you have pleaded guilty to four charges of intentionally causing injury, one charge of criminal damage, and two charges of making threats to kill.
2. The circumstances of the offences were set out in the prosecution opening, which was read in open court yesterday, and which I incorporate by reference. I also incorporate the maximum penalties set out therein.
3. In brief outline, you were in a relationship with the complainant – you had one child together, aged 13 months. The complainant had two older daughters, aged six and eight, from a previous relationship.
4. You moved to Victoria after living in Queensland for some time. At the time you left Queensland, there was an intervention order on foot, however, I am satisfied that this was initiated by her ex-partner and not the complainant and therefore did not pertain to your relationship with the complainant.
5. You had arrived in Victoria after a short time in Adelaide, seeking to start a new life. You were in temporary accommodation for a short time before moving into more permanent accommodation in Horsham.
6. The offending occurred when you were under the influence of methylamphetamine. It is a well-known feature of that drug that users become paranoid and become subject to significant mood-swings.
7. The offending occurred on four consecutive days in February last year at the family home in Horsham. In the afternoon of 8 February 2016, the two of you were sitting together at home on the couch at which point you accused the complainant of being unfaithful to you. She denied that she had been. You refused to accept her denial and proceeded to assault her. You punched her several times in the face with a clenched fist, and also to the head and ribs, causing severe pain and resulting in a blood nose. There was blood everywhere, and the older children who were present were crying, scared and looking upset.
8. The complainant retreated to the toilet to avoid you. An aggravating feature of the first of these assaults on the complainant was the presence of the two young children, and indeed the complainant was holding the baby when you punched her in the face.
9. The following day, you repeated your conduct. You punched the complainant with a clenched fist to her nose and face, causing her to bleed, and again making false accusations against her. At the time, the complainant was downloading movies on her computer, and you accused her of setting up software so she could stream what was happening in the house.
10. Given that the complainant's nose bled on the previous occasion, you must have known that again, a punch to the nose would cause further damage to it. The complainant's nose was extremely sore, and felt like it had been broken. The children were not present on this occasion. These two events constitute the first two charges of intentionally causing injury.
11. Again, on 10 February 2016 you seriously assaulted the complainant. In addition to punching her in the face, you kicked her legs. You continued to assault her, striking her ribs with a wooden speaker box and again, punching her in the nose. You also hit her arm with the box, which in total she said caused massive pain. The children were present during this assault, and they were intervening and tried to stop you and defend their mother. The complainant was under a table at one stage. You later proceeded to punch the complainant with a closed fist whilst she was feeding the baby.
12. Later in the evening, another altercation occurred when the older children were in bed. This time you were armed with a hammer, and at one stage struck her with a glancing blow to the left hip, as well as to the left forearm. This was followed by you following her to the toilet, where she was inside and you struck the toilet door a number of times, causing damage. This awoke the baby, and the baby was screaming.
13. Later that night, when the complainant was in bed, you turned the light on, and she attempted to jump out of the bed and escape. You were screaming at her to come out, and woke up the baby. You then assaulted her twice by throwing metal knobs from the bed at her, one of which hit her on the face. It was at that stage you then grabbed her by the throat and told her you were going to kill her, and punched her to the face, causing her nose to bleed again. At one stage she dropped the baby.
14. She was hysterical during this event. She was attempting to explain to you what she was doing with the computer, but you would not accept her explanation. You were demanding that she tell you the truth. She explained what she was doing with the computer, and you eventually accepted that explanation. There was blood everywhere, including over the baby. These events constitute charge 3 (intentionally causing injury), charge 4 (criminal damage), and charge 5 (making a threat to kill).
15. The following day, 11 February 2016, the same sequence of events occurred. The children were present, having just arrived home from school, when you again accused the complainant of being a liar in the presence of the older children. You struck her to the face with a clenched fist, and the children again were pleading with you not to kill the complainant. The girls took the baby outside to play.
16. Inside, you again accused her of being a ‘liar’ and a ‘slut’. The complainant took an opportunity to escape, and started running into a paddock. Whilst the complainant was attempting to escape, you picked up the baby and demanded that she come back. She eventually came back.
17. Once inside, the daughters of the complainant again pleaded with you and you promised that you would not hurt their mother. The complainant told the girls to go and have a bath. The complainant was holding the baby, and you proceeded to hit her with a coffee cup to the legs, ankles and feet, and then hit her in the head with the cup. She tried to resist you, however, she could not stop you.
18. The children then arrived back into the room where you told the complainant that she was “going to die tonight”. A short time later after the children had gone to bed, you accused the complainant of looking out a window. You lit a cigarette, you kept the lighter going, and plunged the hot lighter on the top of her foot, burning the skin. She kicked her foot away.
19. After burning her with the lighter, you commenced kneeing and elbowing her, all while she was holding the baby. You then butted the cigarette out on her left foot, and then punched her in the nose, again causing it to bleed. You then continued to make accusations against her, threatening to kill her and effectively tortured her. You said then you were going to get a knife, at which point the complainant ran into the girl’s bedroom.
20. You came up to her with a kitchen knife and started stabbing her foot, cutting it a number of times on the top of the left foot and on the sole. The baby started crying and there was blood on the baby, and the complainant took the baby to the shower to clean him up. It is these events that constitute charge 6 and 7 – intentionally causing injury and making a threat to kill.
21. After the complainant finished in the shower, your mood changed again. You ordered her a coffee. The complainant then fell asleep on the couch with the baby. Later, the two of you went to the bedroom and went to sleep.
22. The next day, while you were asleep, the complainant made her escape with the two girls and the baby. She had the baby in the pram, and left without her phone and sufficient clothes, and went straight to the Salvation Army, where the caseworker did not at first recognise her, due to the injuries to her face.
23. The complainant was admitted into hospital, where her injuries included the following:
    1. Severe bruising;
    2. Soft tissue swelling on the left frontal scalp;
    3. Minimally displaced bilateral nasal bone fracture;
    4. Minimally displaced fracture of the anterior bony nasal septum;
    5. Bilateral nasal fracture;
    6. Fracture of the anterior body of the nasal sternum;
    7. A 25mm laceration to her ankle;
    8. Blood present in her left ear;
    9. Undisclosed fractures of five ribs on the left side;
    10. A minimal pulmonary contusion on the left side (bruising on the lung);
    11. Busied upper and middle region of the abdomen;
    12. A small pleural effusion (abnormal amount of fluid around the lung); and
    13. Bruising on her arms.

24. The complainant remained in hospital until 15 February 2016, after being admitted 3 days earlier). You were arrested on 12 February 2016. In the course of the interview, you made rambling admissions where you admitted to hitting her a number of times, but downplayed your role but admitted that – at times – you had lost your temper. In relation to the third incident – on 10 February 2016 – you admitted that you “got a bit carried away and hit her a few more times". You admitted at one stage that you were ashamed of yourself.

The seriousness of the offending

25. There are a number of features of this offending which make it serious. First, the complainant in this matter is a vulnerable female who you were in a relationship with, and you assaulted her in her own home.
26. Next, save for charge 2, the offending occurred in the presence of her children, and indeed in the presence of your own 13-month-old baby. This is an aggravating feature, and must have resulted in the children being terrified, and resulted in them seeking to persuade you from continuing your conduct against their mother.
27. Further, in relation to charge 3, it involved the use of instruments, namely a hammer and a speaker box. Charge 6 also involved the use of a kitchen knife. This, again, makes it more serious than it otherwise would have been.
28. Another aggravating feature of your offending is that the complainant suffered significant injuries as a result of your assaults on her. Despite there being no victim impact statement, the complainant spent three days in hospital, sustained undisplaced fractures of five ribs, as well as significant soft tissue injuries and nasal bone injuries. These injuries are obvious from the photos tendered. The injuries were such that the Salvation Army employee barely recognised the complainant when she sought refuge.

Prior convictions

29. You admitted a number of prior convictions in both Western Australia and Queensland, as well as some dishonesty convictions as recently as January 2016 in Horsham. Most significantly, you have a prior conviction on

    26 November 2007, where, in Perth Supreme Court, you were sentenced to two and a half years' imprisonment for armed robbery in company, and six months for possession of a prohibited drug.

30. Earlier in 1997, when you were aged just under 20, you were sentenced to one year and nine months' imprisonment for burglary and attempted robbery in the District Court in Perth.
31. The balance of your criminal record shows that you have a number of offences, usually associated with drugs, as well as driving and street offences. This is consistent with the submission of your counsel that you have had a long-standing drug problem, and have, at times, resorted to dishonestly offences to feed this habit.
32. Your counsel submitted, and I accept, that based on your prior record, this offending was out of character. Support for this is also contained in the letter from your father, who states that when he saw you with the complainant in Queensland shortly before the birth of your son, the relationship appeared to be on good terms.

Matters in mitigation

33. In a comprehensive plea, your counsel put a number of matters in mitigation. I have taken into account all the submissions made on your behalf. First, you pleaded guilty. The prosecution accept that this was an early plea, and the matter was resolved at the committal stage. I give you full credit for your plea. You have facilitated the course of justice and saved the need for a committal, exposing the complainant to the rigors of the criminal justice system.
34. In addition, your counsel submitted that your plea was evidence of remorse. In the course of the plea, you stated to the Court that in fact you were sorry for your offending and ashamed of it, and that it continued to impact on you on a daily basis.
35. I have accepted your statements in the course of the plea that you are remorseful for your conduct, and I give you significant credit for that. You have insight into your offending, and that is relevant to your prospects of rehabilitation.

Your personal circumstances

36. Your counsel outlined your personal circumstances on the plea. You are now age 39, and were brought up in Western Australia. Your parents separated when you were 15. You have regular contact with your mother, and episodic contact with your father. There were instances of domestic violence and the use of drugs and alcohol in your parents' marriage.
37. You completed Year 11, and then commenced working as a fisherman in Fremantle for which you were employed for about a decade. Drug use was prolific in that industry. You soon became addicted to heroin. Your addiction to drugs provides an explanation for much of your criminal history.
38. In late-2012, you decided to move to Queensland. You worked in the fishing industry there, and it was at that time that you met the complainant in the Hervey Bay area. She had a history of drug use. She had two children from another relationship, and there was an acrimonious breakdown of that relationship. It was in that context that you got back to the use of drugs.
39. You, the complainant and her two children decided to move to South Australia, and then ultimately to Horsham to start afresh. With the birth of your son, the relationship became strained, and your drug use escalated. And it was in this context that the offending occurred.

Sentencing submissions

40. Your counsel accepted that a sentence of imprisonment was appropriate, and he urged an aggregate sentence, as the offending occurred as a course of conduct. He submitted that the present period of presentence detention of over a year would be appropriate as a non-parole period on any parole sentence.
41. The learned Crown prosecutor submitted, however, that an aggregate sentence was not proper, and there should be sentences for each of the offences, with appropriate cumulation. I have accepted the learned prosecutor's submission. Although this is a course of conduct, the offending is different over the four days it took place. In particular, the two charges of making a threat to kill make it such that an aggregate sentence is not appropriate.
42. I am required to take into account your prospects of rehabilitation. Your counsel put it that they were at least guarded. In support of your prospects of rehabilitation, your counsel referred to the fact that you had done a number of drug courses whilst on remand. I also take into account the letter from your father.
43. Given your lack of significant prior convictions for offences of assault, and the circumstances that this offending did occur whilst under the influence of methylamphetamine, your prospects of rehabilitation are essentially related to your ability to cease the use of that illegal drug.
44. Overall, I regard your prospects of rehabilitation as guarded, and possibly reasonable. It is only time that will indicate whether or not you have the ability to cease the use of illegal drugs, and if you are not under the influence of illegal drugs, then you would have reasonable prospects of rehabilitation. This particularly applies when you are no longer in a relationship with the complainant.
45. Your counsel indicated that when you are released from any prison term, you intend to move back to Western Australia. You wish to maintain a relationship with your son. This will also be a significant factor in your rehabilitation prospects. Your good work record in the past is also something that bodes well for your rehabilitation.

Purposes of sentencing

46. The basic purposes for which a court may impose a sentence are punishment, deterrence – both specific and general – rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim.
47. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
48. Your counsel submitted that a sentence with a non-parole period was appropriate – I accept this. Your Counsel also submitted that the period that you have currently served in custody would be an appropriate non-parole period.
49. The learned Crown prosecutor submitted that the seriousness of the offending was such that the present period on remand was insufficient to meet all sentencing objectives. I accept the learned Crown prosecutor's submission.
50. In sentencing, I take it into account that you have been on remand for over 12 months. In addition, two months of that involved being in police cells, which is certainly more onerous than a prison, and you have been moved to three different prisons in the system. I also take into account that facilities and courses are less available to those on remand.
51. I commend you for the courses that you have already undertaken, and have moderated the sentence on the basis of the period of your remand being more onerous than a straight sentence.
52. In this case, general deterrence is an important consideration. The sentence of the Court must seek to send a signal that violence against domestic partners, and in particular, vulnerable women, is totally unacceptable. Further, specific deterrence has some weight, although I accept that you have insight into your offending and are remorseful, and this is the first significant offending of this nature.
53. Denunciation is also an important consideration – the sentence of the Court has to denounce your conduct. Your conduct, in what was a four-day reign of terror against the complainant, leaving her battered, bloodied and bruised, and resulting in a three-day admission to hospital, is to be utterly and totally condemned.
54. Although the complainant has not filed a victim impact statement, the sentence must vindicate her rights to bodily integrity. It must have been a terrible ordeal for her. Your reintegration into a community is a factor that weighs against these considerations that I have just mentioned, but it is relevant as well.
55. Although this offending was over a four-day period, there were significant assaults on each day, as well as the two events involving the threats to kill, as well as the criminal damage. These matters call for a measure of cumulation to reflect each of the particular events.
56. I have however had regard to considerations of totality in fixing the overall sentence.

Sentence

57. The sentence of the court is as follows:
    1. On charge one of intentionally causing injury, you are sentenced to 15 months’ imprisonment.
    2. On charge two of intentionally causing injury, you are sentenced to 15 months’ imprisonment.
    3. On charge three of intentionally causing injury, you are sentenced to 21 months’ imprisonment.
    4. On charge four of criminal damage, you are sentenced to six months imprisonment.
    5. On charge five of making a threat to kill, you are sentenced to 12 months’ imprisonment.
    6. On charge six of intentionally causing injury, you are sentenced to two years imprisonment – this is the base sentence.
    7. On charge seven of making a threat to kill, you are sentenced to 12 months’ imprisonment.
58. I direct the following:
    1. Five months of the sentence on charge 1;
    2. Five months of the sentence on charge 2; and
    3. Seven months of the sentence on charge 3,

be served cumulatively upon each other and upon the base sentence.

59. This makes a total effective sentence of three years and five months. I direct that you serve a non-parole period of two years before being eligible for parole.
60. I declare that you have served 385 days of pre-sentence detention.
61. Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I declare that, had you not pleaded guilty, I would have imposed a total effective sentence of five years imprisonment with a non-parole period of 3 years and six months.
62. I also make the disposal and forensic sample orders sought by the prosecution.