Sentence: Total Effective Sentence 3 years and 4 months imprisonment with a non-parole period of 2 years and 3 months.
[2]
Stephen Klein, you have pleaded guilty to six charges under the Crimes Act on one presentment and a further four charges on a second presentment wherein you admitted breaches of the Family Violence Protection Act. The offending covers the period from July 2023 to 29th January 2024.
The circumstances of the offences are set out in the prosecution opening which was read in open court yesterday and which I incorporate by reference. The maximum penalties are set out in the sentencing table that I am about to hand down.
The offending arises out of a toxic relationship with the complainant with whom you had been in an on again, off again, relationship for about four years prior to the offending. You have previously served a sentence of imprisonment for domestic violence offences against her.
The first incident occurred in a caravan park in the Tinamba area. The two of you had been in a cabin, and as part of the process of moving, the complainant was assisting you. On 22 July 2023, the two of you were sitting in the lounge room of your cabin. You became angry that the complainant was not helping you fast enough. You stood up and punched the complainant to her face above the eyebrow. The blow led the complainant to bleed profusely. You obtained a sponge from the kitchen to attempt to stem the bleeding. While doing so you said to her, 'We're going to die tonight'. You said that you would set both of you on fire. The complainant believed that you would carry out the threats. The complainant begged you to allow her to leave and also to contact her mother one last time to say goodbye. She could not escape as you were standing in front of her outside the cabin. The threats made her afraid. This went on for a few minutes until she was finally able to call her mother. She had the opportunity to leave, and she managed to drive away. This conduct constitutes the charges of causing injury recklessly and making a threat to kill.
She got to the nearby Tinamba Hotel car park but had to stop because of the loss of vision in one eye. She called her mother in a hysterical state. She was found slumped over the steering wheel and unsteady on her feet. Her mother put the complainant in her own car and sought to seek medical advice which the complainant declined because she did not want to get you into trouble. The two of them returned to the mother's address in Maffra where the mother administered first aid. As a result of the assault the complainant was left with a facial scar. While the complainant was at her mother's address you continued to assault and abuse her by sending text messages to her phone. The complainant's mother attended the Sale police station the following day. Police later obtained a family violence order which was served on you. On 21 August 2023, a final order was issued, and this was served on you on 27 August 2023.
The service of the FVIO gives rise to the later FVIO charges against you.
On 17 September 2023 at about 8.00 am, the complainant was driving you back to your address in the Sale region. It was in her car. There was a verbal dispute between you in the car, and the vehicle was travelling in a street at about 50 kilometres an hour when you engaged the hand brake causing it to come to a complete stop in the middle of the road. At that point you punched her to the face and upper body using your hands.
This gives rise to Charge 3, causing injury recklessly, and Charge 1 on the second indictment of contravening a family violence intervention order.
The commotion was observed by a passerby. She saw you and was concerned that the complainant was upset and scared. The complainant then departed from the scene. You were making various slurs against the complainant to the passerby. The police attended at 8.18 am and the complainant was visibly distressed and had scratches on her face. You were arrested and you denied any offending
Your conduct in committing violence against the complainant gives rise to Charge 2 of causing injury recklessly and Charge 1 of breaching a family violence intervention order.
Subsequent to that the police applied for and were granted a full no contact family violence intervention order, and this was served on you and explained on 2 October 2023.
The next offending arises when the complainant was with you at your address. The two of you were engaged in a verbal argument. She sought to leave your property, and she began to collect her belongings. While she was in your bedroom collecting her belongings, you entered the room and punched her to the face multiple times, knocked her to the ground and proceeded to stand over her, kicking her to the upper and lower body.
This gives rise to Charge 4 of recklessly causing injury.
She fought back and with one hand grabbed your testicles and then escaped from the house. She ran across the road to a nearby house and saw her stepfather. She was crying and visibly distressed, and he saw marks and scratches on her face and her eyes were puffy and red. She was urinating blood for three days after that.
Your actions against the complainant breached the conditions of the FVIO granted by the court on 2 October, which is Charge 2 on the second indictment.
The offending on 3 November arises where the two of you were at her house in Sale. Throughout the day you were arguing. While in the bedroom it escalated. You grabbed one of the pillows from the bed and forcibly pushed it down onto her face during which time she was unable to breathe. After a short time, she managed to free herself and fled the house naked.
This constitutes Charge 5, conduct endangering life.
She ran down a communal driveway in the block of flats and was crying loudly. A neighbour gave her a dressing gown.
You remained at the flat and smashed some pots and threw some items down the toilet including her medication. The complainant was so scared of you that she refused to return to the property that night.
This event constitutes Charge 6, damaging property.
Your conduct also breached the FVIO that had been granted on 2 October, which is Charge 3 on the second indictment.
On 4 December the FVIO was varied from a full no contact order to one preventing you from committing family violence against the complainant. The order was explained to you by the magistrate on 4 December 2023.
In December 2023 the complainant changed her mobile phone number to stop you communicating with her and blocked you from social media platforms.
Notwithstanding her attempts to prevent you from communicating with her, you continued to harass the complainant by using the 'comments' section on electronic bank transfers. Over the period 24 December 2023 until 29 January 2024, you made 58 transfers in small amounts, including numerous slurring and degrading comments about her in those transfers. They are set out in the prosecution opening.
These communications are the basis for Charge 3 on the second indictment of persistent contravention of a family violence intervention order.
On 29 January 2024 the complainant's daughter, concerned about her welfare, contacted the police who then arranged for her to attend the Sale police station in a very distressed state and crying. She then provided her record of evidence outlining the factual bases for all the charges against you. She also explained the reasons for not complaining about you because she was afraid of you and had ongoing fear of you.
You were arrested of the 31 January. When you were interviewed you denied the offending and maintained that the complainant was a drug addict and telling lies. You did admit that you smashed the plants in her flat. You denied breaching the FVIO intervention orders. You admitted that you had sent the communications. You denied intending to scare her by the content of the various messages. You denied that you had been abusive in those messages.
You were denied bail and have been in custody since that time.
[3]
Before assessing the seriousness of the various offences, it is appropriate to consider your prior criminal record, which is extensive. It is relevant. I do not propose to canvass it in its entirety but there are a number of matters that warrant mentioning.
On 14 April 1993 on a charge of recklessly causing serious injury, you were convicted and fined $750 and sentenced to one month imprisonment.
On 22 February 1994 on a charge of intentionally or recklessly causing injury, two months' imprisonment plus a community corrections order for 12 months and convicted and fined $500.
On 9 June 1995, on a charge of intentionally or recklessly causing injury and a breach of a community-based order, convicted and fined $200.
On 4 February 2008, on a charge of making a threat to kill and unlawful assault, fined $600.00.
On 30 September 2008, on a charge of making a threat to kill and breaching an intervention order and fail to answer bail, aggregate sentence of five months' imprisonment, wholly suspended.
On 23 February 2009, for breaching intervention order, convicted and fined $800.
14 April 2010, for contravening family violence safety notice, three months' imprisonment to be served by way of an ICO.
1 June 2010, for contravening a family violence intervention order, convicted and fined $1000. On the same day on a breach of an intervention order you were served with a wholly suspended sentence.
On 22 June 2010, for contravening family violence intervention order and recklessly causing injury, aggregate 90 days' imprisonment, partially suspended. Total effective sentence, nine days.
On 25 November 2010, for contravening a family violence safety notice, order cancelled, you were made to serve the unexpired portion of 18 days' imprisonment.
17 July 2014, for contravening a family violence intervention order, unlawful assault and fail to answer bail, aggregate sentence of 90 days' imprisonment.
20 January 2016, for contravening family violence intervention order, serving a 36-month CCO.
3 March 2020, for contravening community corrections order, fined with conviction $1000, order cancelled.
1 April 2020, for contravening family violence safety notice, convicted and sentenced to a 12-month CCO.
21 December 2020, on a charge of recklessly cause injury, make threat to kill intending fear, persistent contravention of family violence order, making a threat to inflict injury, nine months' imprisonment total effective sentence.
From your record you have three prior convictions for making a threat to kill, and one prior conviction for threat to inflict serious injury. Further, you have five prior convictions for intentionally causing injury or serious injury. You have two convictions for damaging property. You also have, on my count, 23 priors for breaching intervention or family violence orders.
You have been sentenced to a number of dispositions, but it appears that your longest sentence of imprisonment was a total effective term of nine months in December 2020.
[4]
Your prior criminal record, including the fact that you have been the subject of escalating serious sanctions, including for contravention of family violence orders, is centrally relevant to your moral culpability for these offences and in assessing the seriousness of the offences.
Your counsel did not dispute that this was serious offending - it was. Your various assaults against the complainant were against a woman who you had previously served a term of imprisonment for offending against her.
What you were doing here was similar given your prior appearances for assaults, threats and contravening family violence orders.
You must bear a high moral culpability for the offending.
Turning to the individual offences: Those on 22 July were particularly nasty. You punched the complainant to the head causing significant blood loss and a scar. You then threatened her. Your offending must be considered in the context of all prior convictions where you have three recent convictions on 21 December 2020 of threat to inflict serious injury or making a threat to kill intending fear. You were sentenced to imprisonment for that offending.
Because of your prior convictions you are a serious violent offender in relation to Charge 2 on the first indictment and protection of the community must be the primary sentencing consideration.
Your culpability for the assaults constituted by Charges 3 and 4 must be considered in the context of the family violence intervention order that you had been served with.
Notwithstanding this order, you again punched the complainant to her face and body. A further order was served on you on 2 October 2023, and this offending was particularly degrading and caused blood in the urine for three days.
Your assaults on the complainant were egregious. Again, your offending had been the subject of family violence intervention orders.
Overall, the offending here was a course of conduct against a vulnerable female, who, as I have said, you had previously been imprisoned for offending against, and who, for whatever reason, kept coming back and associating with you. She did not deserve the treatment that you meted out to her.
[5]
I turn now to your personal circumstances which were set out in your plea submission and also in the report of Mr McKinnon. You are a German citizen who came to Australia when you were aged four with your family. You are now aged 57. You had a younger brother who died aged six months when you were aged 18 months, and thus you were raised effectively as an only child.
You are a permanent resident in Australia.
Your parents were successful in integrating into Australia.
When you were aged 12 you discovered that the person you thought was your father was in fact your stepfather. You were subject of abuse by both parents, and they separated. You went with your stepfather who was a television technician and had his own business. You told the examiner, Mr Mackinnon: 'Dad was the best thing that ever happened to me.' Your father passed away 25 years ago. Your mother is aged 86 and living in Pakenham.
You were educated in schools in the eastern suburbs and on your account did well. You were not suspended or expelled from school. When you left at Year 11 you entered the workforce, and you have always been in employment in air-conditioning and also in demolition. You have had property but your mother had purchased your property from you.
You have a 21-year-old son who you see on an occasional basis. You had been in a toxic relationship with the mother of your son for a number of years. He resides in the Geelong area. Your own mother resides with her second husband.
[6]
A significant matter on the plea was that in the period subsequent to the offending and while you were on remand you were diagnosed with cancer in the lymph glands that resulted in a lump under your tongue and then led to emergency surgery to your tongue and jaw when it became aggressive. You required chemo and radio therapy, and your condition is currently being monitored on a quarterly basis.
You have outstanding proceedings against the Correctional authorities on the basis that you were not accorded proper care after your original cancer diagnosis.
It was submitted, and I accept, that the future course of your condition is a matter that will make any sentence of imprisonment more burdensome.
[7]
Your counsel relied on a report from a consultant psychologist, Mr Mackinnon. His report focuses on your family background and drug and alcohol history. He notes a long history of polysubstance abuse commencing with alcohol from aged 18, and then amphetamine at age 20 and methylamphetamine at age 25.
You were using ice and alcohol at the time of this offending.
He also noted that you have had identity confusion since becoming aware that your father was actually your stepfather.
He is of the opinion that your life difficulties likely made a major contribution to your development of a Mixed Depressive and Anxiety Disorder with levels of depression and anxiety present that he identifies. This was part of your identity confusion. He also assessed that you are suffering from Substance Abuse Disorder.
He also notes that these disorders, along with the fact that you have antisocial and criminal traits, have made significant contributions to your offending 'fuelling highly impulsive and erratic behaviour, degrading your ability to apply good reasoning and sound judgment, weakening your powers of consequential thinking and engendering a self-absorbed and irresponsible attitude that made [you] more prone to acting upon aggressive and violent impulses.' Your habitual use of ice and alcohol likely amplified the negative and destabilising elements of your MDAD disorder.
Your counsel sought from the report of the psychologist a reduction in your moral culpability for this offending. He invoked the well-known principles in Bugmy.
I do not accept that the matters raised in the psychological report are such as to call for anything but a minor reduction in your moral culpability for this offending. I accept that there is a continuum in relation to childhood upbringing dysfunction, however, here, notwithstanding your relatively early entry into the criminal justice system, your successful school and employment outcomes do not significantly, in my view, engage the Bugmy principles.
At the same time, the contribution of your family history to the development of your Mixed Depressive and Anxiety Disorder, does call for some reduction in your moral culpability under the principles of Verdins.
[8]
Your prospects of rehabilitation remain relevant, notwithstanding the prospects of deportation. Given your past failure to respond to sentencing dispositions and various conditions that have been attached to orders, at their highest, your prospects can be considered as only fair.
As the psychologist indicates, your entrenched antisocial and criminal traits, with persistent violent tendencies, will not be easy to extinguish.
On the other hand, in your period of remand you have sought to better yourself by undertaking an ice awareness course, as well as applying for other courses and working as a billet. Due to your remand status, your ability to access those courses is more limited. You have also joined AA and found this insightful.
In addition, you told the examiner that your cancer diagnosis has been a wakeup call in your life, and one could certainly understand this response.
[9]
As a consequence of the sentence I am about to impose, your visa will be cancelled by the Minister. You will then be deported or attempt to have your residence status reinstated by way of appeal to the relevant tribunal, with all the uncertainties that that brings.
Your risk of deportation to your native Germany is a matter which will make a period of imprisonment more burdensome, along with the fact that upon deportation you will be returned to a country where you have no roots.
I have taken these matters into account in your favour.
[10]
You are entitled to the benefit of your plea of guilty to these offences. The plea to the second indictment was entered at the commencement of the trial on circuit in Latrobe Valley. There had been some discussions about resolution prior to that.
In relation to your pleas to the first indictment, these were entered after the trial had proceeded for a couple of days and the complainant and her mother had been cross-examined. The plea was therefore late. You are still entitled to the benefit of the plea. You have facilitated the course of justice and given finality to the complainant, and you expressed some sympathy for the complainant in your instructions to Mr Mackinnon. You are entitled to some benefit by the entry of your plea, and I give you that credit.
[11]
Both counsel provided comprehensive sentencing submissions which I have considered and sought to give effect to.
Your counsel sought leniency on the basis that further imprisonment will likely fuel your depression and anxiety given your age and the risk of a relapse of your cancer, and prior attempts, somewhat dated, at suicide. I take those matters into account in your favour. As indicated during the plea, I regard your offending as too serious to call for a combination sentence or a sentence that avoids a visa cancellation.
I also take into account in sentencing that any sentence will be the longest sentence that has been imposed on you.
Further, you have been on remand for 615 days. This is a very significant period waiting for resolution of this matter. The uncertainty has, I am satisfied, been a significant burden on you which I take into account. Further, your ability to access programs is more limited, as I have indicated, and you have had the diagnosis and surgery for your cancer during this period. These are all significant matters calling for some leniency on sentence.
Your counsel also emphasised the importance of the principle of totality.
The prosecution called for a substantial sentence. The learned prosecutor noted the importance of general deterrence and denunciation in cases involving domestic violence, particularly against women by men. She referred to the impact of all your offending on the complainant, notwithstanding that there was no victim impact statement. The learned prosecutor sought to emphasise the principles of specific deterrence also applied given your prior criminal history and failure to respond to previous dispositions.
[12]
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, if any. 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.
I have taken into account the competing submissions made by both the prosecutor and your counsel. I am dealing with a course of conduct that involves domestic violence. It is said that such violence is a blight upon society. Your conduct in relation to the complainant must be utterly condemned. It must be denounced and a signal sent to all men involved in domestic relationships who abuse those in the relationships that the courts will seek to protect women by significant sentences.
I have accorded some leniency on account of your physical and mental conditions, and indeed your demeanour, your period on remand and your risk of deportation.
In sentencing you on Count 2 on the first indictment, you are sentenced as a serious violent offender with the protection of the community as the principal purpose of sentencing.
I have had regard to principles of parsimony and totality and the maximum sentences for each of the offences.
Charge 6, intentionally damaging property, one month imprisonment.
[14]
On the second indictment:
Contravening a family violence intervention order, six months' imprisonment.
Charge 2, contravening family violence intervention order, six months' imprisonment.
Charge 3, contravening a family violence intervention order, six months' imprisonment.
Charge 4, persistent contravention of a family violence intervention order, 12 months' imprisonment.
I order the following cumulation on the base sentence on Charge 2. On Charge 1, two months' imprisonment; on Charge 3, two months' imprisonment; on Charge 4, two months' imprisonment; on Charge 5, four months' imprisonment cumulative on each other.
On the second indictment. On Charge 4, persistent contravention, six months' imprisonment. Otherwise, the sentences are concurrent.
This makes a total effective sentence of three years and four months' imprisonment.
I order that you serve a non-parole period of two years and three months' imprisonment.
I declare that you have served 615 days pre-sentence detention, excluding today.
I declare that had you not pleaded guilty I would have imposed a total effective sentence of four years' imprisonment with a non-parole period of two years and nine months' imprisonment.
I will have the sentencing chart emailed to both counsel now
HIS HONOUR: I want to thank both counsel for their assistance and I will have these sentencing remarks engrossed and sent to the parties relatively soon.
Mr Klein, I must explain the sentence to you. For the reasons that I have set out, this course of conduct calls for a significant sentence and I have sentenced you to a total effective sentence of three years and four months with a non-parole period of two years and three months, if the authorities are prepared to grant you parole.
I have declared you have served 615 days, and I have sentenced you as a serious violent offender on Charge 2 because of your prior convictions for threats. The fact that your visa will be cancelled is a matter that I cannot take into account, so I wish you all the best in relation to that.