Director of Public Prosecutions v Agustsson
[2018] VCC 1042
•6 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY AGUSTSSON |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2018 | |
DATE OF SENTENCE: | 6 July 2018 | |
CASE MAY BE CITED AS: | DPP v Agustsson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1042 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – Guilty Plea - recklessly causing serious injury and recklessly causing injury – offences committed in a single episode at boarding house where offender and two victims resided – offender armed with a knife and meat cleaver – first victim stabbed with knife to the face and neck while second victim sustained deep cut and nerve damage to finger while trying to disarm offender – offender very intoxicated– high level of moral culpability - delay – offending occurred in 2014 but offender failed to appear at Court and not re-arrested until early 2018 - limited and largely inconsequential prior criminal record – offender committed subsequent offence of assault with a weapon (knife) on a different victim on 1 February 2018 for which likely to be sentenced on 9 July 2018 - offender aged 34 at time of offending and 38 at time of sentencing – prospects of rehabilitation considered moderate but guarded.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: Cases Cited: Winch v The Queen (2010) 27 VR 658; Hogan v The Queen [2017] VSCA 230; Taupati v The Queen [2017] VSCA 106; Jojic v The Queen [2017] VSCA 77; Deng-Mabior v The Queen [2015] VSCA 179; Ejupi v The Queen [2014] VSCA 2; Pang v The Queen [2018] VSCA 5; DPP v Dix [2015] VSCA 118; Valayamkandathil v The Queen [2010] VSCA 52; Wheldon v The Queen [2011] VSCA 83;; DPP v Dalgleish (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37; Boulton v The Queen (2014) 46 VR 308.
Sentence: Total effective sentence of 4 years with non-parole period of 3 years; Pre-sentence detention of 260 days declared; s.6AAA indication of 5 ½ years with non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr L. Cameron (Plea) Mr P. Raimondo (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr Eli Rallis | Victoria Legal Aid |
HIS HONOUR:
Introduction
1 Troy Agustsson, you have pleaded guilty to an indictment containing two charges. Charge 1 alleges an offence of recklessly causing serious injury and carries a maximum penalty of 15 years’ imprisonment. Charge 2 alleges an offence of recklessly causing injury and carries a maximum penalty of 5 years’ imprisonment.
2 The circumstances in which you came to commit those offences are set out in the typed prosecution opening dated 4 June 2018, a copy of which was tendered as Exhibit A on the plea hearing. I have had regard to that opening when determining the appropriate sentence in this case.
Circumstances of the offending
3 The offences were committed in the course of a single incident that occurred in a boarding house on 17 June 2014. During that incident, you caused serious injury to a fellow boarder named Benjamin Banhert and injury to another boarder named Ross Penrose. At that time, they were aged 36 and 34, respectively, while you were 34. You are now 38.
4 Apart from yourself and the two victims, six other people lived there; five males and one female. Each resident had their own lockable bedroom.
5 On 17 June 2014, you and all but one of the other residents were at the boarding house in Hampton Park. When you launched your attack in the shared lounge room, the two victims and two other male residents were present. Two of the other residents were in an upstairs bedroom.
6 Over the course of that afternoon, you drank approximately two litres of wine while alone in your bedroom.
7 Between approximately 3.00 pm and 5.00 pm, a number of the residents overheard you behaving strangely and angrily in your bedroom. You were punching the walls and yelling things such as, ‘I’m going to start stabbing people! I have nothing to lose, I might as well end up in gaol!’ and ‘They’re all fucked!’ Several residents also heard what they believed to be you sharpening knives by rubbing the blades together.
8 At approximately 5.00 pm, you were heard to say something about ‘the prick from Springvale’. Mr Bahnert was seated on a couch in the lounge room when he heard you say that. He believed your comment was directed at him as he was the only resident from Springvale. On hearing the comment, he responded by yelling back to you ‘If you’ve got a problem with me, come out.’
9 After a few minutes, you let out what Mr Penrose described as a ‘battle cry’, and then came out of your room and approached Mr Bahnert from behind. You had a meat cleaver in one hand and a paring knife in the other. You immediately began to stab Mr Bahnert to the face and neck with the paring knife. Initially, he thought he was being slapped but then realized he was being stabbed. At one point, he felt extreme pain when the blade of the knife hit his tooth.
10 As you were stabbing him with the knife, you raised the meat cleaver with your other hand in an attempt to strike Mr Bahnert to the head. Before you could do so, however, the other victim, Mr Penrose, bravely intervened by grabbing hold of the blade of the meat cleaver, incurring a deep cut to his hand in the process. You and Mr Bahnert then fell to the ground. While there, you still had hold of both weapons and were continuing to thrash your arms around. Several residents attempted to intervene to stop you attacking the victim further. Eventually, one of the residents managed to wrest the meat cleaver from your grasp.
11 Mr Bahnert was caught by surprise by this attack as he thought that the two of you had always got along well. During the attack, he was afraid that you were going to kill him.
12 After several residents phoned 000, police arrived at the scene shortly after 5.30 pm. On assessing you, they formed the view that you were drug and/or alcohol affected. You were sobbing and apologising, saying that you knew that you had done the wrong thing.
13 Paramedics arrived soon afterwards. They provided initial medical treatment to the victims and then transported them to hospital for further assessment and treatment.
Injuries to Mr Banhert
14 As a result of your attack on Mr Bahnert, he sustained the following injuries:
· Three deep facial and neck lacerations;
· Transection of the right marginal mandibular branch of the facial nerve; and
· A laceration of the buccal mucosa, which is the lining of the cheeks and the back of the lips inside the mouth where they touch the teeth.
15 He required surgery and that was performed on 18 June 2014.
16 Mr Bahnert was advised by the treating medical staff of the following:
· He would never regain feeling to the right side of his face;
· He would need to take pain medication for the rest of his life, and
· He would need to see a speech therapist on an ongoing basis to address the speech difficulties caused by his injuries.
Injuries to Mr Penrose
17 As a result of his attempt to stop you from continuing to injure Mr Bahnert,
Mr Penrose suffered a 1.5cm deep laceration to his left index finger and decreased distal sensation due to nerve damage. He required microsurgery and that was undertaken on 18 June 2014.
Arrest and interview
18 Following your arrest at the scene, Mr Agustsson, you were taken to Narre Warren Police Station and interviewed. In that interview, which I note commenced at just after 11.30 pm, you told police the following:
· Residents of the boarding house, including Mr Bahnert, had been ‘tormenting’ and ‘picking on’ you for the previous couple of weeks and you had just had enough;
· Mr Bahnert had ‘sort of semi-attacked’ you a couple of days earlier, threatened you a bit and made you ‘a bit worried’ and ‘a bit scared’. You had to go to your bedroom and lock yourself in;
· You had drunk two litres of wine over approximately three hours that afternoon;
· It had been building for a couple of weeks. You were in the wrong. You had a few drinks and just sort of lost it;
· You ‘just snapped’. Your ‘brain just fried. It just melted down’. You ‘had a mental lapse’ and your ‘mind just went blank’;
· You ‘just really wanted to die at the time… just really had enough of life’;
· You ‘weren’t in the best frame of mind’ and ‘were a bit depressed and not much going’ for you;
· There was a knife on the table in your room which you picked up. You didn’t think. It was just a blur after that;
· You grabbed the meat cleaver but didn’t remember using the paring knife; and
· You didn’t remember half of what happened and didn’t know how you got into the lounge room.
Pre-sentence detention
19 When the plea hearing was conducted on 3 July 2018, Mr Agustsson had spent a total period of 258 days on remand for this matter.[1] Not including today’s date, the figure is now 260 days. That period will be declared later in these sentencing reasons.
[1] That figure included the date 3 July 2018.
20 In effect, there have been two periods spent on remand. The first period was from the date of his arrest until the date he was released on bail on
30 September 2014. When he failed to appear at the committal mention hearing on 21 October 2014, that bail was revoked and a warrant was issued for his arrest. The warrant was finally executed on 1 February 2018 and
Mr Agustsson was taken into custody on that date. Thus, the second period runs from that date until today.
Timing of Guilty Pleas
21 I note that Mr Agustsson pleaded guilty to these charges at the fourth Committal Mention held on 14 March 2018. The matter proceeded by way of straight hand-up-brief and no witnesses were required to be called. The matter was listed for a plea hearing in this Court on 3 July 2018 and duly proceeded as listed.
22 Notwithstanding that there has been a delay of just over 3 years in this matter due to the accused man’s decision to abscond, and that the plea was entered years after he was first charged, the plea is still deserving of a relatively significant discount in sentence as it has saved the community from the cost and time associated with a trial and, even more importantly, spared the two victims and the eye witnesses from the ordeal of having to give evidence about this most regrettable incident.
23 I will make clear what the extent of that discount is later in these sentencing reasons.
Prior Criminal Record
24 I note that Mr Agustsson’s prior criminal record is a limited one. In the 14 or so year period between February 1999 and April 2013, he appeared in the Magistrates' Court on five occasions and was found guilty of 14 offences. He received two Good Behaviour Bonds, one of which he breached, and fines without conviction. The offending was predominantly constituted by thefts. There were, however, two offences of use cannabis. What is noteworthy, is that none of the prior offending involved the use or threatened use of violence or the possession of any weapons. That would suggest that Mr Agustsson was not, prior to the current offending, of a violent disposition. As defence counsel in this case made clear, that was the view expressed to the police by a number of the residents of the boarding house.
25 Given its contents, I consider Mr Agustsson’s prior criminal record to be of only very limited weight in this sentencing exercise.
Subsequent Offending
26 The same cannot be said, however, of his subsequent offending. While limited to a single occasion, that offending is very recent and bears some similarity to the current matter. Although Mr Agustsson is yet to be sentenced for that subsequent offence of assault with a weapon, he admits to having committed it and intends to plead guilty to that charge when the matter comes back before the Dandenong Magistrates’ Court on 9 July 2018.
27 The incident occurred in a public street on 1 February 2018, and commenced with a verbal dispute between him and a complete stranger. As the two men walked towards each other, words were exchanged. The other man pushed Mr Agustsson. At some point while on the ground, he kicked out at
Mr Augustsson who then lashed out with a knife that he had in his possession. Fortunately, the victim sustained only a minor injury to his leg as a result of the contact made with the knife. On the account given to his counsel in this matter, who will also appear for him in the pending Magistrates' Court hearing, Mr Agustsson possessed the small knife because he regularly used it to cut up his food.
28 As was indicated by me at the plea hearing, it is of obvious concern to this Court that Mr Agustsson would even contemplate using a knife during a dispute with another person given the previous incident at the boarding house. Clearly, such subsequent offending is very relevant to this Court’s consideration of the weight to be given to specific deterrence and to any assessment of Mr Agustsson’s prospects of rehabilitation.
Victim impact
29 Each of the victims in this case had the opportunity to make a victim impact statement but declined to. But, the fact that there are no victim impact statements, does not prevent this Court making some observations about the actual or likely impact of this offending on the victims.
30 Mr Bahnert was subjected to a terrifying and vicious knife attack. The assailant directed his attack at the victim’s face and neck. Unsurprisingly, the victim believed he was going to be killed by his assailant. No doubt, he experienced significant pain during the attack and in its immediate aftermath. He will have to bear the physical as well as emotional scars occasioned by what Mr Agustsson did, for the rest of his life. Whilst it is unclear what the precise extent of the long-term residual physical effects of his injuries will be, there clearly will be some and they will likely be relatively significant.
31 As for the second victim, Mr Penrose, I have no doubt that he was terrified by what he saw and I am satisfied the shocking memory of this incident will remain with him for the rest of his life. It would be surprising if he does not have a permanent scar and some residual physical effects occasioned by the injury to his finger. But, the emotional impact of this offending may well be even greater. After all, he witnessed the entire incident and bravely put his own safety at risk to prevent the attack on Mr Bahnert from continuing. A victim does not readily or easily move on with their life after experiencing such an event.
32 Finally, I am prepared to find that the two other residents who witnessed this attack would also have been very scared and concerned by what they saw, and that they would have continued to experience adverse emotional consequences for some time afterwards.
33 Each of the residents, particularly the two victims who were injured by
Mr Agustsson, no doubt had any sense of the security of their accommodation shattered by this unfortunate turn of events.
Explanation for the offending
34 Mr Agustsson, there are two means by which this Court can try and ascertain your motivation and reasons for attacking Mr Bahnert as you did. The first comes from what the residents saw and heard of your behaviour in the hours and minutes leading up to the attack. The second comes from what you have later said to others about what you were thinking and feeling at the relevant time, for example to the police when interviewed and then, much later, to the assessing psychiatrist, Dr Turnbull.
35 It is not an easy or certain process, however, as you were obviously very intoxicated and in an extremely angry and agitated frame of mind in the immediate lead up to the attack on Mr Bahnert.
36 To attempt any definitive explanation for this offending is therefore difficult, in large part because of your level of intoxication at the time and the resultant difficulty you had with your memory when interviewed by the police shortly after your arrest. To the extent that you attempted to describe your thinking to the police, it was necessarily incomplete and based, to some extent, on assumptions.
37 The explanation you provided to the psychiatrist when he assessed you on
27 April 2018, is additionally problematic as, by that time, a further period of almost four years had elapsed.
38 But, I will do my best on the available material. It seems that you were at a very low point in your life. You were struggling to deal with the reality of a failed relationship and were having significant financial problems. You had no means to buy the drugs that you wanted to use. So, you resorted to alcohol, and drank a very large amount of it. In that context, you appear to have ruminated and festered over your circumstances at the boarding house. You appear to have been very unhappy with Mr Bahnert, in particular. You referred to him as “a prick”. You had the perception at least, that he had not behaved well towards you in the period leading up to this incident. It is clear, therefore, that you were very unhappy with your life and the recent turn of events. Indeed, as you were overheard to say, you had “nothing to lose”.
39 I am well satisfied, that even before you heard Mr Bahnert’s response to you calling him a prick, you were at least contemplating attacking people, and doing so with a knife. However, the identity of those people, apart from
Mr Bahnert, is not entirely clear. Whether you would have carried out this attack if there had been no verbal response from Mr Bahnert is difficult to say with any degree of certainty. I am, however, prepared to accept your counsel’s submission that it was Mr Bahnert’s response to your derogatory comment that was “the straw that broke the camel’s back”.
40 I have taken some time to refer to those matters in order to try and provide some context to, and explanation for, your attack on Mr Bahnert. But, that should not be misunderstood. Whilst it may go some way towards explaining and contextualising the offending, it provides absolutely no excuse or justification for it. It is well to keep in mind that what took place was an unprovoked and vicious attack on a defenceless and innocent man in the place where he was living and entitled to feel safe.
Personal Circumstances
41 I will now outline your personal circumstances, Mr Agustsson.
42 You grew up in Broadmeadows as the youngest of four boys in your family. Your father was a heroin addict. He used to beat you and your older brothers bullied you. You found life at home a struggle and left at age 16. You harbour some residual resentment towards your mother for not protecting you and for not reporting your father’s abuse to the police. You have not had any contact with your family for about five years.
43 To your credit, after leaving home, you lived in a shared house and managed to work part-time at Hungry Jacks and complete your VCE.
44 Following school, you completed a carpentry apprenticeship and then worked in that field for about 5 years. You then obtained a security licence and worked in crowd control. You have also done laboring-type work.
45 In the early 2000s, you commenced a relationship which lasted 9 years. It was the most stable period of your life; you were in steady employment, lived in stable accommodation with your partner, and only used drugs occasionally.
46 However, the break-up of that relationship in 2010/11, had a serious emotional impact on you. In response, you turned to heroin and methamphetamine as a form of self-medication.
47 In 2011/12, your mental health began to deteriorate in the context of your increasing drug use, and that led to periods of homelessness and unemployment. At one point, you were suicidal. In the end, you were prescribed anti-depressants by a doctor.
48 In 2013/14, you became even more socially isolated and depressed as you used increasing amounts of drugs. It was in that context that your current offending occurred.
49 I note that you were assessed in custody by the occupational and forensic psychiatrist, Dr Leon Turnbull on 27 April this year. I have had regard to the contents of his very helpful report, a copy of which was tendered as Exhibit 2 on the plea.[2]
[2] The report is dated 30 April 2018.
50 You told Dr Turnbull that you do not remember having any substantial antipathy towards Mr Bahnert before the subject incident, but that he had been ‘nitpicking’ and at one point had called you a ‘junkie’ and told you that you did not belong in the boarding house. Whilst he acknowledged being hamstrung to some degree by your less than perfect recall, Dr Turnbull was able to make some observations about your likely condition at the relevant time. He doubted there were any specific psychiatric reasons to explain your offending. Rather, he considered your motivations to have been influenced by a combination of depressive thoughts relating to your childhood and failed relationship, your drug and alcohol dependence, and your perception of the negative way in which you had been treated by the victim previously.
51 As noted by Dr Turnbull, you have been prone to depressive episodes in the past, for which you have been prescribed medication. He does not consider your mental health issues to be making your experience of custody especially onerous. In fact, he considers your time spent there to have had a benefit in the sense that it has broken the cycle of your drug and alcohol use. You have also put it to good use by seeking the advice of others and doing some courses and some work.
52 You told Dr Turnbull that you had taken to alcohol and ecstasy at age 19, and to heroin and ice in your early 20s. You acknowledged that ice was insidiously damaging. In more recent years, you have curbed your drug use to some degree. You stopped using heroin over two years ago and went on a methadone program. You have reduced the amount of ice you use. You have also reduced the amount of alcohol you consume daily. Before you went into custody, those changes enabled you to perform cash in hand laboring type work about two days a week. You have indicated that you want to desist from drugs and, to a lesser extent, end your relationship with alcohol.
53 You have maintained regular contact with your GP but ceased contact with a counsellor, to whom you were referred, after the first session of psychological therapy, a decision you now say you regret. You have indicated a desire to have some sort of supportive counselling in the future so as to try and move on from your childhood and failed relationship.
54 You continued to struggle with the breakup of your long term relationship in the years following this offending. That, together with ongoing issues with homelessness led to you making an attempt on your life in 2016 and an extended period spent in a psychiatric hospital.
55 You told Dr Turnbull that you feel “happier” now and he considers that you are currently enjoying stable mental health despite some ongoing feelings of ‘hurt’ from your childhood.
56 Dr Turnbull noted your indication to him that you cannot keep blaming your past experiences for your current difficulties. But, he considered that you would probably benefit from some professional support to deal with the twin issues of your childhood and failed relationship. In observations that I expect will be important for the Adult Parole Board to consider, Dr Turnbull notes that the type of therapy that re-visits unpleasant memories is notorious in triggering a relapse of drug use and should be undertaken with caution and only by a suitably qualified and experienced community psychologist. Ongoing and regular contact with your GP is also recommended.
57 Dr Turnbull considered that a stable lifestyle of work, health and adult responsibilities would act as protective factors in your case, Mr Agustsson.
58 Unsurprisingly, he is of the view that if you return to ice and other drugs when you are released from prison, it will significantly increase the risk of you lurching towards re-offending. In that context, I consider that drug and alcohol counselling and treatment, preferably a residential based program, would be of considerable potential benefit to Mr Agustsson on his eventual release from custody.
Other matters in mitigation
59 Your counsel was able to rely on a number of other matters in mitigation on your behalf, Mr Agustsson.
60 You co-operated with the investigating police and made some admissions when interviewed.
61 You have pleaded guilty to the offences for which you must now be sentenced by this Court. However, that plea was not entered at the earliest stage of these proceedings. Nonetheless, it has resulted in significant benefits to the community, victims and witnesses and is therefore deserving of a commensurate discount in your sentence.
62 The issue of remorse is a nuanced one. Whilst I am prepared to accept that you evidenced some remorse for what you did in the immediate aftermath, you went on to fail to appear at Court and remained at large for a significant period. You therefore failed to take full personal responsibility for what you did until the police arrested you and you had to confront the matter head on. I do, however, consider that your pleas provide some more recent evidence of remorse on your part.
63 At 38, you fall to be sentenced for a very serious offence of violence in circumstances where, until the commission of that offence, you had not evidenced a violent disposition. That point loses some impact, however, when your full antecedents are taken into account. The very recent commission of a further offence of violence by means of the use of a knife is, as I have already noted, quite troubling.
64 But, I will keep such matters in perspective. Your criminal history, while relevant, is not as bad as some offenders who come before this Court, and, until February of this year, did not involve any violence or weapon related offending other than the offences for which you must now be sentenced. Furthermore, the significant period that you spent at large since failing to appear was, but for one significant exception, offence-free.
65 You have expressed some motivation in addressing your substance abuse and psychological issues, which is a good thing. You have also tried to use your most recent time spent in custody as best you can. Your counsel informed this Court at the plea hearing, that you have undertaken a number of drug courses whilst on remand, and also obtained your forklift and a traffic control licence, with a view to assisting you to stay off drugs and enhance your employability prospects on release.
Objective gravity of the offence of RCSI
66 Of course, matters personal to you are not the only considerations for this Court, Mr Agustsson. This Court must also have regard to the objective gravity of your offending.
67 As a type of offence, recklessly causing serious injury is inherently serious. That is amply demonstrated by the fact that Parliament has fixed the high maximum penalty that it has, 15 years’ imprisonment.
68 This notion was referred to and explained by Maxwell P and Redlich JA in Winch v The Queen[3] as follows:
It is important to recall that [recklessly causing serious injury] is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why that is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence recklessness – means that the offender has consciously disregarded a known risk.
The offence of [recklessly causing serious injury] is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability. This is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.[4]
[3] (2010) 27 VR 658.
[4] Ibid, [34]-[35] (citations omitted).
69 In that same case, guidance was provided to sentencing judges as to the means by which the seriousness of a particular case is to be measured. What was said in that regard is worth repeating now:
As this Court pointed out in Ashe v R, the court’s assessment of the seriousness of a particular instance of [recklessly causing serious injury] will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.[5]
[5] Ibid, [36] (citations omitted).
70 To adopt and adapt the reasoning in Winch, what makes stabbing a serious instance of recklessly causing serious injury, almost by definition, is the obvious dangerousness of a knife when used to strike a blow to the face or head.[6]
[6] Ibid.
71 Another important consideration is, of course, the degree of seriousness of the injury actually sustained by the victim. There is obviously a spectrum of injuries that can come within the parameters of an offence for which serious injury is an element, ranging from, on the one hand, an injury that is barely over the threshold for serious injury, right up to one that is life threatening for the victim and/or has profound long-term effects for the victim.
72 In so far as the actual serious injury sustained by this victim is concerned, I note the following. It is not of the magnitude that can sometimes be encountered, such as where the victim suffers life threatening or profoundly disabling injury. But that said, it was quite serious and involved a number of deep lacerations to the victims face and neck with some associated nerve damage and no doubt significant scarring. It is well to remember that in the course of this frightening attack, the victim was in fear of his life and must have suffered terribly. The ongoing physical and psychological effects for him will, in my view, continue to be significant.
73 When all relevant considerations are taken into account, it is clear that this instance of the offence of recklessly causing serious injury is a serious example of its type. I have come to that view, for the following reasons:
· The offence was unprovoked;
· The offence was not wholly spontaneous; rather it was carried out after a period of contemplation;
· The offender was prepared to arm himself with two sharp weapons for use in the attack, each of which was capable of inflicting very serious injury or even death;
· The offender was prepared to carry out the attack in full view of a number of witnesses who could be expected to be traumatised by what they were about to see;
· The offender launched the attack from behind, which meant that the unarmed victim was caught by surprise and severely limited in his ability to defend himself;
· The attack was carried out with a knife and involved multiple blows;
· Those blows were aimed at the victim’s face and neck;
· The degree of probability that serious injury would result was very high;
· The degree of seriousness of the injury foreseen by the offender was also high;
· The serious injury actually caused, while not of a life threatening nature, was nonetheless significant; and
· The attack ended not because the offender voluntarily desisted, but only because of the intervention of a number of witnesses.
74 In light of the above, I consider Mr Agustsson’s level of moral culpability for this offence to be very high.
Objective gravity of the offence of RCI
75 Whilst the maximum penalty for recklessly causing injury is much lower, it is by no means a minor offence. It can, in certain circumstances, be a serious offence.
76 As the Court of Appeal stated in Hogan v The Queen[7], the approach to assessing the seriousness of a recklessly causing serious injury offence outlined in Winch, can be modified and applied to the offence of recklessly causing injury.[8] In other words, the seriousness of a particular instance of recklessly causing injury will involve considering both the degree of probability that injury will result, and the degree of seriousness of the injury thus foreseen.
[7] [2017] VSCA 230.
[8] Ibid, [32] (The Court) (Kyrou and Hansen JJA).
77 In this case, the injury to the second victim was not caused by stabbing him but rather by less direct means as the victim was trying to disarm the offender to prevent him causing even more serious injury to the first victim. However, the weapon concerned was a sharp edged meat cleaver and the offender well knew that. He also knew that the second victim had hold of the blade as he, the offender, fought to retain possession of it. In those circumstances, I am satisfied that the degree of probability that injury would result was very high and the degree of seriousness of the injury foreseen was relatively high.
78 As for the degree of seriousness of the injury actually sustained, it was, in my view, in the mid part of the spectrum so far as the range of possible injury is concerned. It was a deep laceration with associated nerve damage that required surgical intervention to try and repair. There will likely be a permanent scar as well as some ongoing effects for the victim.
79 Whilst nowhere near as high as for the more serious offence involving the infliction of serious injury, I still consider Mr Agustsson’s level of moral culpability for this less serious offence to be significant. After all, the victim of this offence was, to Mr Agustsson’s knowledge at the time, simply trying to prevent him from causing even more serious injury to the first victim by means of an additional weapon.
Current Sentencing Practices
80 As required by s.5 (2)(b) of the Sentencing Act 1991, I must have regard to current sentencing practices for these types of offences. But, as the High Court recently observed in DPP v Dalgleish (a pseudonym)[9], it is but one of a number of relevant considerations along with the applicable maximum penalty, and is not determinative.
[9] [2017] HCA 41; (2017) 349 ALR 37.
81 The very recent sentencing statistics published by the Sentencing Advisory Council provide some assistance. But, as with any sentencing statistics, there is a lack of important detail regarding such matters as the circumstances of the offence, including any aggravating and mitigating features, and of the circumstances of the offender, including whether the plea entered was guilty or not guilty. When considering this material, I have borne in mind the repeated cautions which the Court of Appeal have sounded about such material.
82 As the sentencing snapshot for recklessly causing serious injury published in June this year makes clear, from 2012-13 to 2016-17, 357 people were sentenced in the higher courts for a principal offence of recklessly causing serious injury. Of the 258 people who received a principal sentence of imprisonment, 239 received a non-aggregate term of imprisonment. The length of those terms ranged from 14 days (combined with a community correction order) to six years while the median length of imprisonment was 2 years and 6 months.[10]
[10] Sentencing Snapshot No. 216.
83 As the sentencing snapshot for recklessly causing injury published in June this year makes clear, from 2012-13 to 2016-17, 218 people were sentenced in the higher courts for a principal offence of recklessly causing injury. Of the 75 people who received a principal sentence of imprisonment, 36 received a non-aggregate term of imprisonment. The length of those terms ranged from 1 month to 4 years, while the median length of imprisonment was 10 months and 15 days.
84 I have also had regard to the Judicial College of Victoria’s summary of Victorian Court of Appeal cases involving recklessly causing serious injury from 2013 to the present. It confirmed in my mind that the number of cases involving the use of a knife are relatively few. I suspect that is because such cases are more often than not dealt with by way of the more serious offence of intentionally causing serious injury. The cases which involved the use of a knife included Hogan v The Queen[11], Taupati v The Queen[12]; Jojic v The Queen[13], Deng-Mabior v The Queen[14], and Ejupi v The Queen.[15] I also note that Pang v The Queen[16] involved the use of a hammer while DPP v Dix[17] involved the use of a beer bottle.
[11] [2017] VSCA 230.
[12] [2017] VSCA 106.
[13] [2017] VSCA 77.
[14] [2015] VSCA 179.
[15] [2014] VSCA 2.
[16] [2018] VSCA 5.
[17] [2015] VSCA 118.
85 To their credit, the prosecution delved further back in the archives to find two cases which involved stabbings at boarding houses. They were Valayamkandathil v The Queen[18] and Wheldon v The Queen[19]. Each of those offenders were sentenced for a single charge of recklessly causing serious injury.
[18] [2010] VSCA 260.
[19] [2011] VSCA 83.
86 As is always the case, there are obvious points of difference between other cases and the one at hand, both as to the circumstances of the offending and the offender. Those differences cut both ways and can often be significant. That is certainly the case here.
87 Again, as the Court of Appeal have frequently noted, consideration of other cases is of limited assistance. No two cases are ever identical or on all fours. And, the sentence imposed in another case should not be assumed to be the only available sentence that was open to the sentencing Court. Almost always, it is but one of a number of sentences that were open to impose when regard is had to the available range.
88 In the end, this Court must deliver individualised justice by having regard to the particular circumstances of this offending, the personal circumstances of Mr Agustsson, and the relevant sentencing principles that arise for consideration. And, that is what I propose to do in this case.
Relevant Sentencing Principles
89 For obvious reasons, general deterrence and denunciation assume considerable importance in this case.
90 For understandable reasons, the resort to dangerous weapons to deal with grievances, real or perceived, causes considerable community disquiet. It has the capacity to undermine the sense of personal security that members of that community have. As such, the community has a justifiable expectation that when offenders who commit such offences are caught, they will be dealt with appropriately by the Courts who sentence them, not just in order to vindicate the values of that community, but also to act as a deterrent to other would-be offenders who are contemplating offending in a similar manner.
91 Specific deterrence also has an important role to play in this sentencing exercise. That is so because of the very serious and disturbing nature of this offending by Mr Agustsson and because of his subsequent and very recent resort to the use of a knife against another member of the public. In the latter context, it is noteworthy that the initial period that Mr Agustsson spent in adult remand for the current offending proved an insufficient deterrent to him re-offending as he did in February this year. Whilst not an escalation in his offending, it was certainly a serious relapse by him.
92 For similar reasons, I consider that there is a need to give some weight to the protection of the community from Mr Agustsson.
93 This court must also punish Mr Agustsson in a manner and to an extent that is just in all the circumstances. Given the nature and gravity of this offending, any such punishment needs to be substantial.
94 Totality considerations arise in circumstances where, as here, two offences are committed in a single episode that was of brief duration. However, given that the offences involved different acts by the accused, different weapons, and different victims, each of whom has suffered as a result of what
Mr Agustsson did, it is appropriate to order a moderate degree of cumulation between the sentences imposed for those offences. Clearly, some degree of cumulation is warranted and defence counsel did not suggest otherwise.
95 He is now a man of relatively mature years and does not have an entrenched criminal disposition. He has shown in the past that he is capable of obtaining and maintaining employment. For some years, he was able to work, be part of a stable relationship and live in stable accommodation. However, the serious and entrenched issues to do with his drug use and alcohol abuse, which are interconnected with his difficulties dealing with his childhood and the breakdown of a long term relationship, will present very real challenges on his release from custody. Any assessment of his prospects for rehabilitation must therefore be undertaken with some degree of caution. In the end, doing the best that I can with the material available, I consider those prospects to be moderate but guarded. As noted by Dr Turnbull, much will ultimately depend on Mr Agustsson’s ability to successfully complete the necessary drug and alcohol treatment and psychological therapy.
Sentencing submissions
96 In his sentencing submissions, Mr Rallis submitted that a combination sentence was both open and appropriate in the particular circumstances of this case. Such a disposition would, he submitted, be able to recognise and accord adequate weight to all of the relevant sentencing considerations in this case, one of which is to foster the rehabilitation of the offender. Further, counsel argued that care needed to be taken to avoid imposing a sentence of a length that would be crushing.
97 For their part, the prosecution pointed out a number of the serious aspects of Mr Agustsson’s offending. They also addressed the relevant sentencing principles to which this court must have regard. Ultimately, Mr Cameron, counsel who appeared on behalf of the Director, submitted that nothing short of a wholly custodial sentence comprising a head sentence with a non-parole period was appropriate in the particular circumstances of this case.
Analysis
98 Whilst I am mindful of everything that the Court of Appeal stated in Boulton v The Queen[20], and in a number of other cases regarding the parsimony principle as it relates to consideration of a community correction order, whether stand alone or in combination with a term of immediate imprisonment, I am unable to accede to the defence submission on penalty in the particular circumstances of this case.
[20] [2014] VSCA 342; (2014) 46 VR 308.
99 In my view, nothing short of a substantial sentence of imprisonment is warranted in this case. To do otherwise, would fail to accord due weight to a number of important sentencing principles, such as deterrence and denunciation, and would fail to justly punish Mr Agustsson for the serious criminality in which he engaged on this occasion.
100 I will allow for the opportunity for release on parole in the interests of fostering Mr Agustsson’s chances of rehabilitation. But, there is a limit to what this Court can do in terms of fixing the point at which he can be first considered for release from custody. That period should not be so short, or so disparate with the head sentence, that it undermines the necessary deterrent, denunciation and punitive aspects of the sentence.
101 It is to be hoped that in the event that Mr Agustsson is considered suitable for release on parole, he will use that opportunity for supervision in the community to assist him to integrate back into the community and to improve his prospects of rehabilitation.
Sentence
102 Having carefully considered, balanced and weighed the various, and in some respects competing sentencing considerations raised by this case, I have decided to convict Mr Agustsson on each charge and sentence him to the following terms of imprisonment.
103 On Charge 1, recklessly causing serious injury, 3 years and 9 months.
104 On Charge 2, recklessly causing injury, 12 months.
105 The sentence imposed on Charge 1 is to be the base sentence.
106 I order that three months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1.
107 That makes a total effective sentence of 4 years.
108 In respect of that head sentence, I fix a non-parole period of three years.
Pre-sentence detention
109 The period of 260 days pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the Court.
Section 6AAA declaration
110 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had
Mr Agustsson pleaded not guilty to the charges for which he has been sentenced to imprisonment today, he would have been sentenced to a total effective sentence of 5 ½ years with a non-parole period of 4 years.
Forensic Sample Order
111 In all of the circumstances of this case, I am prepared to exercise my discretion in favour of granting the prosecution’s application for an order authorising the taking of a forensic sample from Mr Agustsson pursuant to s.464ZF(2) of the Crimes Act 1958. I have made that decision having regard to the seriousness of the circumstances of the offending, the fact that the making of the order was not opposed and the fact that the granting of the order is in the public interest.
112 Accordingly, I order that Mr Augustsson undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Act until a sufficient sample is obtained for placement on the database.
113 Mr Agustsson, I am required to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Agustsson?
114 OFFENDER: Yes, your Honour.
115 HIS HONOUR: Thank you.
Disposal Order
116 I am also prepared to grant the prosecution’s application for a disposal order in the terms sought, which I note was not opposed by the defence. Accordingly, pursuant to s.78(1) of the Confiscation Act 1997, I order that the paring knife and meat cleaver used in this offending be forfeited to the State in accordance with the terms of the order that I have signed today.
Other Matters
117 Counsel, are there any matters that either of you wish to raise in respect of either the sentence or reasons for sentence at this stage?
118 MR RAIMANDO: No, your Honour.
119 MR RALLIS: No, your Honour.
120 HIS HONOUR: Very well. Adjourn the Court please, Mr Hammill.
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