Director of Public Prosecutions v Azzopardi
[2014] VCC 960
•24 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR -13-01018
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL AZZOPARDI |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 June 2014 |
| DATE OF SENTENCE: | 24 June 2014 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Azzopardi |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 960 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly cause serious injury
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: Ashdown v R [2011] VSCA 408
Sentence:Convicted and sentenced to 3 years’ imprisonment with a non-parole period of 16 months. Section 6AAA declaration: Conviction and sentence of 4 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Taberner | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr A Halphen | David Barrese & Associates |
HIS HONOUR:
1In this matter, Mr Azzopardi pleaded guilty on the 9th day of May 2014 to one count on Indictment Number C1208541.2. The sentencing plea was heard on 17 June of this year.
2The charge in such an indictment is one of recklessly cause serious injury, in this case to Steven Doumtis. Such is an offence under s17 of the Crimes Act 1958, and the seriousness of such an offence is demonstrated by the fact that the Parliament has prescribed as a maximum penalty for such offence, a period of imprisonment of 15 years.
3On the plea hearing, a plea opening, giving the details of the circumstances involved in this offence was tendered as exhibit A, such was tendered after Mr Halphen had indicated to the Court that the defence agreed with the facts set out therein. Those facts detail what is clearly objectively a serious offence, which is aggravated by the use of a knife.
4As the authorities demonstrate, that is the authorities that I have been handed in this case to which I will refer in due course, such crimes are abhorred in this community, and such is, as I say, appropriately demonstrated by the maximum offence.
5However, the description in such bold terms merely goes to the mechanics of the crime in this matter, and its objective culpability. The fundamental issue here, and background of this crime, is the partaking in drugs by you, Mr Azzopardi. You are now 26; this offence took place when you were 24.
6However, such an offence unfortunately has been coming since 2008 when you left home, when you developed a drug dependency, which ultimately took you to the partaking and a use of Ice, and also because of the milieu that you were then in, led to the situation where you committed your prior criminal offences, in particular, for unlawful assaults. Also concerning for the Court, you have had issues with the women with whom you have formed relationships and you have been unable to control your anger in such situations. In May of 2010, you, at the age of 22, were convicted of two unlawful assault charges, those were related to your then girlfriend. Clearly, when you are afflicted by drugs, you present to the community a grave danger. In your own evidence, you indicated that you cannot control yourself when you are under the influence of drugs, that when you are not appropriately medicated, and under the influence of drugs, you suffer from issues of rage and jealously, all of such factors which played a part in this very offence. You have had a subsequent offence which is not a prior; however, you were convicted in July of 2012, and given a period of five months’ gaol for an offence involving your current relationship.
7I have no doubt that the background of drugs, the combination, as I say, of rage and jealousy, played a very large part in this unjustified attack on Mr Doumtis. Exhibit B graphically demonstrates the attack that you effected by way of the knife in this instance. It shows the stabbing, it shows the quite deep and detached wound, which to me indicates the force of your attack, and indeed as a result of that force, you broke the blade of the knife itself which was lodged within Mr Doumtis' shoulder and required surgical removal. As a result of the attack upon him, Mr Doumtis was required to stay in hospital for some four days while repairs were effected.
8In his victim impact statement, exhibit C, as I have re-read it, it is clearly a very temperate, and expresses a very reasonable reaction to the serious attack which you effected upon him. It was both restrained and genuine, and indeed your Counsel did not take a view in any way negative to that report, nor did he seek to comment about its restrained nature.
9As I say, this particular criminality must be classified in the serious order. Insofar as your sentencing is concerned, such is impacted by the fact that you do have concerning priors for unlawful assault, nothing as gross as this or as serious as this, and you also have subsequent matters for violence.
10Given those circumstances, Mr Halphen, in his plea, was realistic, in that there was no other course for you but a sentence which involved immediate gaol. Mr Halphen submitted that given your experience in gaol, the time to contemplate what you have been involved in, and the effect on your life of the factors involved to which I will talk in due course when I refer to the report of Mr Cummins, Mr Halphen submitted that your remorse as demonstrated now has been genuine.
11Mr Halphen spoke of what he described as the three stages in your life. Firstly, the great start you had from your own parents. There are many people who come into Court who cannot claim that, who are not lucky enough to have the start that you had. Then unfortunately in the period of 2008 to 2013, to which I have already referred, you firstly moved out of the home, your work became irregular, you were addicted to drugs, and, of course, you came to commit the offences that I have referred to.
12Also, by June of 2012, a bipolar disorder was diagnosed in regard to you. As to the role of drugs in that diagnosis, it is difficult to know. However, what is clear, as far as you are concerned, is because of the impact of drugs and combined with your bipolar disorder, you are a person who cannot partake of drugs. You simply are physically incapable now of doing it, because if you do, the consequences will be dramatic. Do we have an agreed number of days, as of today?
13MR TABERNER: Yes Your Honour, 328, that’s not including today.
14HIS HONOUR: 358?
15MR TABERNER: Sorry 328, not including today.
16HIS HONOUR: During your remand, insofar as the service of this sentence is concerned, you have served 328 days which is the agreed figure for the purposes of s18 under the Sentencing Act. In fact, you have been in prison for the last 18 months effectively and in that time, you became a father to the child Tye. It was put to me that during that period, as you have given evidence, you have realised the impact of drugs and been drug free and tendered was exhibit 2, the four urine screens, over the periods which I have detailed, showing that certainly there were no illegal drugs partaken by you.
17Also tendered was exhibit 1, which was the report of Mr Jeffery Cummins, the forensic psychologist. At Paragraph 30 in regard to you, he noted your current position. He noted that you were remorseful and had conceded that at the time of this offence, your perception was skewered as a result of being under the influence of ice, and a further drug of which I enquired about in the plea, liquid G, and you refer to the particular relationship you had on the night which led to these particular circumstances.
18At paragraph 34, he did not assess you as having any personality disorder, nor did he assess you as having any anti-social personality style. Indeed he said he was impressed with you. He was impressed, he said, with your insight into your offending behaviour, and into your now comprehension of your drug using lifestyle, and he was of the view, despite all of the matters that I have referred to, that in the long term, the prospects for your rehabilitation were favourable.
19Mr Cummins noted the ongoing support of your parents and fiancée, which has been demonstrated in this Court, and also noted that you had agreed to undertake, when you could, at the prison, an anger management program. Hopefully if it is not there when you are released into the community, it seems to me that that would be essential for you.
20Mr Cummins also noted the diagnosis that I have referred to of bipolar mood disorder. He thought it could have been drug induced, although it is difficult to know. He noted you need appropriate supervision in regard to your mental health, you need management when you return to the community, and, of course, you need to stay on the appropriate medication. In addition, were tendered a number of character references as exhibit 3 which show, as I have said, the strong support that you have from your family, your siblings and indeed your friends.
21Both Counsel accepted, as one of the applicable considerations, the Court of Appeal case of Ashdown v R [2011] VSCA 408. The learned Prosecutor submitted to me the appropriate sentencing statistics insofar as this crime is concerned, and a series of snapshots in regard to determinations by the Court of Appeal insofar as these particular sentences. While accepting the appropriateness of all of such for general consideration by the Court, Mr Halphen of course submitted that in the end, each sentence must depend on its particular facts, of which I have no dispute.
22Mr Halphen in particular stressed your plea of guilty, the remorse that it demonstrated which he asked me to accept as genuine, and as confirmed by your family, your relative young age, the changes that you have made in your life, as demonstrated by your urine samples and the opinion of the forensic psychologist of your acceptance by you of the fact that you did inflict a serious and painful injury upon your victim, the fact that you are now fully aware of the need for you to take dramatic steps to ensure that you do not get yourself into this position again. Mr Halphen submitted that in all the circumstances, an appropriate early parole release could be ordered.
23Given the comments made by you, or about you by Mr Cummins, I asked that you actually give evidence yourself so that I could get an impression of what was going on in your mind, as best as one can in these circumstances. I found the evidence that you gave to be quite genuine and impressive. You referred to the last 18 months and the grave loss you have suffered from not being able to see your own family, both your broader family, but in particular, your fiancée and your son and be part of their lives.
24To quote your words, you said “To be humane in society, I must get myself free of the drugs and maintain my medication”. You realised that upon drugs, you are a person who can act in an uncontrolled manner. It is quite clear to me that unless you do change your ways, as you say you intend to, you may in the future, if you were subject to drugs again, commit an even more serious crime than you have here, and you will find yourself across the road, and unfortunately the sentence then will be quite extreme. So you are really, Mr Azzopardi, at the crossroads in your life.
25If you do not come up to the sworn evidence that you have given here in this Court, the sworn comments you made to your family as to what you intend to do, then consequences are going to be very obvious, you are going to commit a very serious crime and you will be in gaol for most of the rest of your life. That is your option.
26You said to this Court, under oath, and to your family in this Court, that you want the opportunity to prove yourself, as you said, in order to prove that you are a man and that you can be part of your family again, and contribute to your family. Despite the serious circumstances surrounding this crime and its serious nature, and the penalty imposed by Parliament, I find that it is appropriate for leniency to be shown. I accept the submission of Mr Halphen that such leniency can be shown by way of the period of which you must serve before you are eligible for parole.
27Yes, Mr Azzopardi, if you would stand please. Insofar as this offence is concerned, I sentence you to a period of imprisonment of three (3) years. I order that the period you must serve before being eligible for parole is one of sixteen (16) months. I also declare that the period that you have served to date, which has been agreed today at 328 days, be deemed pursuant to s18 of the Sentencing Act 1991, service of this sentence, and that declaration of that effect be recorded in the records of this Court.
28The period that I have imposed as the minimum period you must serve, that is 16 months, which is 16 months less the 328 days that you have now served, is quite deliberately, and determined by me to be less than what would normally be applicable for a crime of this seriousness. I have done that because I have accepted your sworn evidence, and what you swore to those who are here to support you, and I have accepted that on the basis that you intend to change your life. That only, in the end, comes down to you. This Court cannot do anything else, but to assist you as best it can, given the seriousness of the crime, and as your family have continued to show by their support of you. In this particular case I have so acted because of what are in face exceptional circumstances.
29I indicate that had you not pleaded guilty, pursuant to the provisions of s6AAA of the Sentencing Act, I would have sentenced you to a period of imprisonment of four years, with a minimum period to serve in gaol of three years. The end result, in laymen’s language, is that you are sentenced to a period of imprisonment of three years, you will be eligible for parole after you serve 16 months, of which you have already served 328 days. Do either Counsel need me to clarify any matters?
30MR TABERNER: No Your Honour.
31MR HALPHEN: No Your Honour.
32HIS HONOUR: Are there any other orders that I have not signed?
33MR TABERNER: No Your Honour.
34HIS HONOUR: Yes Mr Halphen.
35MR HALPHEN: Your Honour, this is just if I can make application for an appeal cost certificate in relation to proceedings on 16 June, when Your Honour was not available.
36HIS HONOUR: All right, yes.
37MR HALPHEN: Thank you.
38HIS HONOUR: I will do those. Who prepares that? I think my Associate – yes. All right, yes I will grab that order. All right Mr Azzopardi, well good luck, all right, yes.
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