Director of Public Prosecutions v Attwell

[2019] VCC 198

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01897

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY ATTWELL

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2018
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Attwell
MEDIUM NEUTRAL CITATION:	[2019] VCC 198

REASONS FOR SENTENCE
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Subject: Intentionally causing serious injury
Sentence: 6 years' imprisonment; 3 and a half years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Dr M. Fitzgerald

HIS HONOUR: 

1Timothy Attwell, you have pleaded guilty to one charge of intentionally causing serious injury for which the maximum penalty is imprisonment for 20 years.  Your offending is described in the summary of prosecution opening dated 12 November 2018, which was admitted into evidence as Exhibit A on the plea.  That document was read in open court by the prosecutor, Mr Pickering.  Your counsel, Dr Fitzgerald accepted that the summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence. 

2In those circumstances, it is not necessary that I here set out in full, that which is contained in the prosecution opening again and I will do so only in an abbreviated way.  These sentencing remarks needs to be read however, in conjunction with what is set out in the summary of prosecution opening. 

3On 23 March 2018 at about 1.30 am, you were at home in the living room watching television with your girlfriend and uncle.  You had used the drug methyl amphetamine and you had been drinking.  You were at all times alcohol and drug affected.  An argument occurred between you and your girlfriend.  Your uncle intervened.  You left the room and returned with a machete.  Your uncle was then seated unarmed in a lounge chair and without warning or provocation from him, you struck your uncle's left arm with the machete, completing severing his left hand.  You also struck him to the head area, causing laceration to his skull and shoulder.

4As may be expected, the injury that you caused severing your uncle's hand was a severe injury, causing heavy loss of blood.  An ambulance was soon called and the police attended the scene shortly thereafter.  The police located your uncle's hand under some clothing in the living room.  The machete was located under a bed in a bedroom used by you.  Your uncle was taken to the Frankston Hospital where he was placed in an induced coma and he underwent 11 hour surgery to re-attach the hand.

5He has not cooperated with the police in any way and has not given any evidence to implicate you in the crime.  He has not made a victim impact statement and there is little or no evidence as to his current state.  I was told however, that he has told police he has regained some use of his hand, he can do up some buttons and he can hold a beer.  I infer your uncle will be affected by the injury to his left hand for the rest of his life.  When taken to hospital your uncle was found to have suffered a complete amputation of the left hand at the wrist, an occipital laceration and underlying occipital fracture, a 3 centimetre laceration on the left forehead and a 1.5 centimetre incised wound across the left scapula. 

6You were arrested and charged the following day and you have remained in custody since that time and have served 324 days pre-sentence detention.  When interviewed, you made a no comment record of interview, as is your right.  You have pleaded guilty to the charge and that is to your credit.  By your plea of guilty, you have saved the time and cost of a trial and you have saved the victim, who is your uncle, from having to give evidence.  By your plea of guilty you have admitted responsibility for your crime and you have facilitated and expedited the administration of justice.  You indicated a plea of guilty to the charge at committal mention on 17 September 2018. 

7Your plea of guilty is of real value to the prosecution in finalisation of this case.  Because your uncle would not cooperate with the police, the prosecution may have had difficulty proving that it was you that caused the serious injury.  Your plea of guilty followed some negotiation in circumstances where you had previously been charged with attempted murder and gross violence offences.  The negotiation resulted in those more serious charges being dropped, when you indicated your plea of guilty.  I treat you as having pleaded guilty at the earliest opportunity. 

8Because you have pleaded guilty at the earliest available opportunity, you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.  Clearly this is a very serious example of the offence of intentionally causing serious injury.  Your counsel, Dr Fitzgerald filed with the court a helpful written outline of submissions, which I marked as Exhibit 1.  On the plea, Dr Fitzgerald properly did not cavil that this is a very serious example of the offence of intentionally causing serious injury and he conceded that just punishment requires an immediate custodial sentence.  But he also properly submitted that the sentence imposed should be moderated because you are a young offender, without any prior convictions and because of a number of other mitigating factors. 

9In passing sentence, I have generally accepted all of the submissions made on your behalf, which of course have to be balanced against the fact that the circumstances of your offending represent a very serious example of this crime.  Dr Fitzgerald accepted that it was your intent to cause severe injury and that is encompassed by your plea of guilty. 

10He argued and I accept, that your offending was spontaneous in circumstances where you were alcohol and drug affected.  There was no planning or premeditation.  You acted alone.  It was not disputed that the injuries suffered by your uncle were life-threatening, substantial and protracted.  The weapon you used was very dangerous.  It had a 38 centimetre blade.  Your attack on your uncle lasted a very short time, but inflicted severe injury.

11You were aged 19 at the time of the offending and you are now aged 20.  I accept the fact you are a young offender must remain a primary consideration in the sentencing of you.  The principles in the R v Mills (1998) 4 VR 235 at 241 must apply in the sentencing of you. This is your first time in custody. You were born in Frankston. Your parents separated prior to your birth. You were raised by your mother but from the age of seven you saw your father weekly. You are now close to both of your parents. The home environment was said to be dysfunctional. Relatives and friends who abused alcohol and drugs frequented the home. Your mother's mental health is said to be unstable.

12You attended local schooling up to Year 8 level and left school after two unsuccessful attempts to complete Year 9.  By age 14 you were using and abusing both alcohol and cannabis.  From age 17, you were using multiple drugs including methyl amphetamine and heroin.  I was told and accept that your move to substance abuse was influenced by your dysfunctional home environment and by an incident where you were the victim of a sexual abuse at a school camp and by the death of a close cousin. 

13By the time of this offence, your drug use was severe.  It is to your credit I think, that coming off a background such as this you nevertheless managed to reach 19 years of age without prior conviction.  Many others that appear before the courts in similar circumstances, are almost always seen to offend at an earlier age.  That said, you did tell Mr Cummins, the psychologist that you have never had paid employment and over recent years, you have committed offences of dishonesty and led a drug using lifestyle to provide yourself with some spending money.  You have not received social security benefits apart from a carer's benefit, related to your mother's care for 12 months. 

14I admitted into evidence a psychological report from Jeffrey Cummins, who assessed you via video conference on 19 October 2018, Exhibit 2.  Mr Cummins thought you were a relatively immature and unsophisticated 20 year old.  Although he did not test your intelligence, he thought you function intellectually at an IQ level in the low 80s, possibly slightly lower, borderline range.  He thought you were vulnerable in custody and recommended you remain in the young offender's unit, where I understand you have been housed. 

15Mr Cummins opined that you presented with symptoms of reactive depression and anxiety which probably support a diagnosis of adjustment disorder and missed anxiety and depressed mood.  He thought you would find prison more burdensome.  He though your risk of reoffending in a violent way to be moderate.  Against this, after overcoming symptoms of your drug withdrawal after your initial incarceration, you seem to have adjusted reasonably well to prison life.  You are currently prescribed an anti-depressant and you receive mental health treatment.  Your physical health and fitness has improved, through daily visits to the prison gym.  You have worked as a kitchen hand.  You have participated in a number of courses, whilst awaiting sentencing, including an anger management course.  A number of certificates of achievement were tendered as Exhibit 4.  I was told and accept that you have remained drug free and two certificates or urine analysis of samples taken in September 2018 demonstrate this to be so, Exhibit 3.

16I admitted into evidence a letter that you wrote to me and a letter which was intended for your uncle, the victim, Exhibits 5.  In your letter to me you expressed remorse for your actions, which I accept.  And you have expressed appropriate disgust at your offending and the reasons for it and you have vowed to improve your life, using the opportunity you have to prison, to rid yourself of drugs and improve your physical and mental health.  Accepting as I do, your letter as a genuine statement of your intentions, I accept your counsel's submissions that I should regard your prospects for rehabilitation as being reasonable, but only if you remain drug free upon your release.

17In your letter to your uncle, you asked for his forgiveness but importantly I think, you express appropriate empathy for the situation that he now finds himself in, having sustained an awful injury at your doing.  In passing sentence upon you I have taken all of this into account.  In sentencing you I must have regard to the seriousness of your offending, balanced against the fact you are a young offender.  Were it not for that fact, the term of imprisonment I would have imposed in the circumstances of this offence, would have been much longer.  I have moderated the sentence because of the fact you are a young offender and because of the other mitigating factors that I have endeavoured to discuss above. 

18Because you are serving a sentence of term of imprisonment for the first time and because I regard your prospects for rehabilitation as being reasonable if you remain drug free, in my sentence I have provided for a lengthy parole period in the expectation you will receive proper support when released on parole.  Dr Fitzgerald referred me to a number of cases relating to the sentencing of offenders, in circumstances where they have offended by stabbing or using a bladed weapon.  I have had regard to those cases and the sentencing practices adopted in them, in my synthesis of arriving at an appropriate sentence here. 

19On the charge of intentionally causing serious injury, you are convicted and sentenced to a term of imprisonment of six years.  I direct you serve a minimum term of three and a half years imprisonment before being eligible for release on parole.  I declare that there has been 324 days pre-sentence detention and direct that 324 days be reckoned as having been already served, of the sentence passed this day and be entered into the records of the court and deducted administratively.

20Now I have been asked to make a forensic sample order.  For the reasons stated in the order, I have signed it which means that while in custody you may be approached by a member of the police force and asked to give a forensic sample from your body, in the form of a scraping from your mouth.  If you refuse, a member of the police force may use reasonable force to obtain that sample.  The making of the order was not opposed by your counsel.

21I declare that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of eight years imprisonment and I would have fixed a non-parole period of six years.  Was there a disposal order sought?

22MS HENG:  No, Your Honour.

23HIS HONOUR:  Now I understand that there is an issue about the pre-sentence detention, is that right? 

24MS HENG:  Your Honour, it does not ‑ ‑ ‑

25HIS HONOUR:  That I miscalculated a day?

26MS HENG:  It does not include today, so it will have 323 days.

27DR FITZGERALD:  I counted 323 days as well.

28HIS HONOUR:  Very well.  The declaration of pre-sentence detention will be 323 days.  Now there is one other matter.  Yesterday, my associate received an email from the daughter of Mr Atwell's uncle, the victim.  And there was a request made, to make available a copy of the letter that was exhibited, to the uncle.  I would not do that without Mr Atwell's consent, Dr Fitzgerald.

29DR FITZGERALD:  Your cousin has requested the letter be released to your uncle. 

30ACCUSED:  Yeah.

31DR FITZGERALD:  It was addressed to him, it was written to him.  Is that something you are happy with?

32ACCUSED:  Yes.

33DR FITZGERALD:  All right.  So you have no problem with him having a copy of that letter.

34ACCUSED:  No.

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