Director of Public Prosecutions v Alsbury

[2017] VCC 1282

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01489

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG WILLIAM ALSBURY

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	6 September 2017
CASE MAY BE CITED AS:	DPP v Alsbury
MEDIUM NEUTRAL CITATION:	[2017] VCC 1282

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. A. Mahady
For the Accused	Mr J. Fitzgerald

HIS HONOUR:

1Craig Alsbury, you have pleaded guilty to the following offences which carry the following maximum penalties.  Intentionally causing injury carries a maximum of ten years imprisonment.  Theft carries a maximum of ten years imprisonment and damaging property carries a maximum of ten years imprisonment.  In addition, you have pleaded guilty to the summary offence of unlawful assault which carries a maximum penalty of three months' imprisonment and/or a fine of 15 penalty units.

2You have admitted your prior convictions.  They are extensive.

3As an adult your prior history dates back to November 1999.  You have four previous convictions for various types of assaults including recklessly causing serious injury, intentionally causing injury, assault and assault police. 

4You have convictions for threats to kill, criminal damage (in its various forms), and thefts. 

5You have previously failed to comply with intensive corrections orders in 2000 and in 2008.  You have failed to comply with conditions of bail over the years and with intervention orders on two occasions.  I will return to these matters in due course.

6The Crown tendered a summary of prosecution opening on the plea.  A brief summary of your offending is as follows. 

7On the night of 2nd and 3rd February 2017 you had stayed at the complainant's house after you were evicted from your accommodation.  In the course of the day you were described as drinking alcohol and perhaps using ice.  You and the complainant were friends and had been for a couple of years. 

8At about 8pm you and the complainant were drinking wine when a verbal dispute arose.  The complainant states that you told him to stop drinking the wine.  You then did the following things.  First, you kicked him to the chest knocking him on to the floor.  Second, you jumped on top of him and started to punch him in the face, mostly hitting him to the right side of his face.  He threw a few punches at you and you got a blood nose.

9Third, you pulled a cane shelving unit on to the complainant.  You picked up a metal dining chair and swung it at the complainant's body.  In the course of this assault you told him the only way he was leaving was ‘in a wooden box’.

10Further, you rang your mother and told her that you had "smashed his face" and that you were going to kill him if she did not come and pick you up.  Then the next thing you did was you picked up a steak knife and you stabbed the complainant three times, causing superficial puncture wounds to his upper abdomen and back. 

11As the complainant got up through the course of the assault, he could no longer see out of his right eye.  You caused extensive injuries to him.  These included a fractured eye socket, a fractured cheek bone, puncture wounds to the upper abdomen, puncture wounds to the upper back, a fractured rib and general pain, bruising and soreness. 

12In addition to this you damaged the windows to the complainant's rented premises and you stole his mobile phone. 

13You told the police that you were acting in self-defence after the complainant came at you.  You had admitted hitting him in the face but denied kicking him, hitting him with a chair or stabbing him.  You told police that he stabbed himself.  You also told the police that the complainant was a junkie who was hanging out for morphine and that he gave you his telephone.  Your plea of guilty contradicts the version of events that you gave to the police.

14You have been in custody since you were arrested by police the day after this assault and you have now spent 214 days on remand for this matter excluding today.  I will declare this pre-sentence detention as already served.

15The victim impact statement of Leslie Bassman dated 6 September 2017 was read to the court.  Mr Bassman has suffered pain and nerve discomfort in his face and has suffered from headaches since the assault.  Although there is no evidence providing a link, Mr Bassman has also been admitted to hospital after suffering seizures.  He had not suffered seizures prior to the assault.

16In the course of your assault, you broke personal items that had belonged to the victim’s mother, and he had to replace furniture.  Mr Bassman is now more socially isolated since the assault as he does not trust people any more.

17I turn to an analysis of the gravity of the offending and your moral culpability.  Your offending was very serious indeed on the night of 3 February 2017.  This was an unprovoked attack.  The victim had provided you with accommodation when you were down on your luck.  Your assault on him took four different forms: kicking, punching, the use of a chair to hit him around the body, and stabbing him with a knife.

18Furthermore, the injuries that you caused to the victim were extensive: three different types of fractures, stab wounds, bruising and soreness.  The fact that he has ongoing pain and nerve discomfort around his right eye and ongoing headaches is testament to the severity of the assault you inflicted on him.

19I note at this point you told the psychologist, Carla Lechner, that the complainant made a homosexual advance on you causing you to act as you did.  In this respect, I find your various accounts as to the circumstances of the offending, entirely unreliable.  What is more, your last version to Ms Lechner was in the course of her examination of you on 15 August 2017.  This does not speak well of your remorse for the offending. 

20Your offending invokes principles of general deterrence and denunciation.  People have a right to feel safe in their own home.  Your attack was unprovoked, vicious, cowardly, prolonged and varied.  It must be met by stern punishment.

21I turn to the summary assault of 2015.  The assault took place in a local supermarket.  It appears that you became upset when there were no more chickens available.  A person in the supermarket told you to stop arguing with a young store attendant. 

22Outside the supermarket you saw this person again at his car and you kicked the car.  When he got out of his car, you punched him to the face.  He lost his balance and fell to the ground.  The victim suffered a small abrasion and swelling to his right eye.  You told police that he continued to incite you outside the supermarket.

23It is disturbing to note that the assault in 2015, like the assault in February 2017, was likewise unprovoked. 

24I turn now to your personal circumstances.  You are 35 years old and were born in May 1982.  You are the third youngest of four boys.  You grew up in the Latrobe Valley for some period but it appears that you relocated to Queensland at some point in your childhood.  It appears that you moved home many times in order for you and your family to escape the anger and abuse of your father. 

25I had a very incomplete and conflicting view of your childhood and work history due to the various accounts of events provided to me. 

26What appears incontrovertible, however, is that you were the victim of physical and sexual abuse at the hands of your father as a child.  This has left you, in the opinion of the psychologist Ms Lechner, and other health professionals, as a severely debilitated adult suffering from post-traumatic stress disorder and a borderline personality disorder which emanates from that PTSD. 

27As a layer superimposed over that, you suffer from a severe drug and alcohol dependency.  Your drug dependency has led to periods of psychosis.  You have at times been suicidal and have unsuccessfully acted on those ideations. 

28Your drug and alcohol use started at a very young age.  You reported using marijuana from the age of nine or ten years old, and that you used heroin from about that same time. 

29You told Ms Lechner and your counsel that you were introduced to heroin when you were nine years old after you were bashed by your father.  You used amphetamines from the ages of 13 to 18 years.  I can only conclude that you have had a long and difficult history with drugs and alcohol.

30It is unclear what work history you have.  You told your counsel that you had completed a four year cabinet making apprenticeship by the time you were 16 or 17.  Frankly, this timeline is unbelievable.  Your counsel told me, on your instructions, that you had your ticket in cooking.  After that he conceded that you had not completed the course. 

31By contrast, you told your psychologist that you had never held paid employment, and that you had been on a Disability pension since you ‘were a kid’.  It is apparent, however, that you have been unemployed, and indeed, unable to work for many years as you now are, and remain on, a disability pension. 

32You have two children aged eight and ten but have had no contact with them for many years.  Indeed, you only saw your ten year old son once when he was a newborn and you have seen your daughter once a number of years ago.  You have no contact with their mothers.

33You have had an on/off relationship with your childhood neighbour, Lydia Reece, but it appears that the relationship is at an end.  You have no relationship with her at present. 

34You have no family contact either.  You have not seen your father for many years and it appears that you are estranged from your mother and siblings, who you say, fear you. 

35The psychological report of Carla Lechner concludes that you were raised in a highly dysfunctional family characterised by your father's physical and sexual abuse.  Ms Lechner considers that the combination of early trauma and early drug use undermined your subsequent social, vocational and emotional development. 

36As such, you have either never held a job, or you have had difficulty doing so.  Your intimate relationships are short-lived and you find it hard to establish stability in your life.

37Ms Lechner concluded that you are cognitively dull, with a limited ability to reflect on the impact your behaviour has on yourself and others.  She stated that you reported an extreme level of depression and a moderate level of anxiety in addition to the symptoms of post-traumatic stress disorder, borderline personality disorder and your substance addictions. 

38In her opinion, Ms Lechner concludes that your complex disorders require pharmacological management, skills-based learning and specific trauma therapy.  Ms Lechner recognises that this regime is likely to be difficult to implement given your transient lifestyle.  Ms Lechner acknowledges your extensive prior history and your lack of compliance with the 2015 Community Corrections Order. 

39In my view, these last two factors also complicate the rehabilitative or therapeutic aspect of any sentence that I may impose.

40On your behalf, Mr Fitzgerald tendered a bundle of medical notes which provide glimpses of your health difficulties since 1999.  The notes refer to suicide attempts, overdoses, many attempts at self-harm and auditory hallucinations.  These notes provide hard evidence of the many psychological difficulties that you face. 

41On your behalf your counsel, Mr Fitzgerald, submitted that the following matters should operate to mitigate your sentence:

·   the plea of guilty,

·   remorse,

·   prospects for rehabilitation, and

·   you will do your time in prison harder because of your psychological conditions.

42Ultimately Mr FitzGerald submitted that you should receive a combined sentence of imprisonment with a Community Corrections Order.

Plea of Guilty

43I accept that your plea of guilty should mitigate the sentence I impose.  In this case, the plea of guilty has a utilitarian benefit in that it relieves the principal witness, Leslie Bassman, of the trauma of coming to court to give evidence against you.  In this respect I find that the plea of guilty facilitates the course of justice.

Remorse 

44Mr Fitzgerald submitted that you showed some insight and restraint during your attack on the victim in that you called your mother and told her to come and get you or you would kill the victim and it was your mother who took the victim to hospital.  You told the victim in the attack that the only way he would leave was in a wooden box.  If this is evidence of restraint, then it is too long a bow to equate to remorse.

45I do note, however, that Ms Lechner stated you expressed regret and said that you often do after the event and that you feel, "Not good" about the events in February 2017.  You nevertheless justified the attack to her by saying that the victim made a homosexual advance on you and this harkened back to your childhood.  Again, I find this account very difficult to accept.  It was not a version of events that you raised with the police when you spoke to them the day after the attack.  I find remorse difficult to detect.  If it is present, it should be given only very limited weight.

Prospects for Rehabilitation

46I turn then to your prospects for rehabilitation.  I consider that your prospects for rehabilitation are poor; however, I will not say that they are completely extinguished. 

47When I have regard to your prior convictions I see that you have been before the court and dealt with on five occasions for four assaults and one came up again in a breach. 

48You have non-compliance with court orders including what I am dealing with today.  You have not complied with an intensive corrections order, intervention orders on two occasions, you have breached bail conditions on a number of occasions and you have the breach of the community corrections order today.

49You have numerous convictions for damaging property and criminal damage in its various forms.  You have numerous convictions for theft and theft of and from motor cars.  In other words, you have been given a number of chances and you have not taken them. 

Psychological State

50As to your psychological state and the burden that it poses for you, I consider that your psychological disorders and dull cognitive functioning may make prison somewhat more burdensome than it is for others in the general prison population.  I note, however, that this was not specifically addressed by Ms Lechner in her report or in any other material provided to me.  In my view, a moderation of your sentence in respect to your psychological state can lead only to a light mitigation of the sentence I must impose. 

51Mr Fitzgerald submitted that I should impose a sentence of a combined period of imprisonment with a community corrections order.  This submission was opposed by the Crown.  In my view, there are two principal reasons why I should not accede to this submission.

52First, the seriousness of your offending calls for a very stern period of imprisonment.  I have already provided my analysis of your offending.  This was an attack in the home of the victim and when he was providing you with food and shelter.  The community requires the court to denounce your behaviour. 

53The charge of intentionally causing injury, and particularly when one has regard to the statutory definition of injury, now encompasses a wide range of injuries.  The fact that the victim was hospitalised for four days, and still suffers, makes this attack a very grave one indeed. 

54Secondly, it was brought to my attention that you were totally non-compliant with an order imposed two years ago.  It satisfies me that to even contemplate having you assessed for a further community corrections order is entirely inappropriate.

55In the circumstances, the only sentence I can impose is a period of imprisonment.  I recognise, however, that if you are to even have a chance at rehabilitation you will need intervention at the point of your release to provide supervision and structure to guide you in your return to the community.

56Mr Fitzgerald urged me to provide a longer than usual period of parole to enable this.  Mr Alsbury, a period of parole is never guaranteed.  You will have to work hard and from now if you are to be released on parole at the expiry of the non-parole period.  If you are so released, then parole will provide an officer to you and a structure that can assist you in your return to society. 

Sentence

57On the charge of intentionally causing injury, you are convicted and sentenced to a period of imprisonment for two years and six months.  That is the base sentence.

58On the charge of theft, you are convicted and sentenced to two months imprisonment.  I will make one month of that sentence cumulative on the base sentence.

59On the charge of criminal damage, you are convicted and sentenced to two months imprisonment.  I make one month of that sentence cumulative on the base sentence.

60On the charge of unlawful assault, you are convicted and sentenced to two months imprisonment.  I make one month of that sentence cumulative on the base sentence.

61The total effective sentence is 33 months imprisonment.  I order that you serve a non-parole period of 24 months imprisonment, that is, two years. 

62I declare the pre-sentence detention period of 214 days, excluding today, as already served. 

63I make a 6AAA declaration that, but for the plea of guilty, I would have imposed a sentence of four years with three years to serve.

64I have considered the order for compensation and I am going to make the order. 

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