Director of Public Prosecutions v Barron-Kevan

[2018] VCC 659

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00733

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BARRON-KEVAN

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2018
DATE OF SENTENCE:	9 May 2018
CASE MAY BE CITED AS:	DPP v Barron-Kevan
MEDIUM NEUTRAL CITATION:	[2018] VCC 659

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – recklessly causing serious injury – unprovoked attack – deliberate attack – victim suffered permanent injuries – drug affected at the time of offending – significant history of drug addiction – relevant prior convictions – traumatic childhood – remorse – guarded prospects of rehabilitation

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991
Cases Cited:            

Sentence:Seven years’ imprisonment with a non-parole period of four years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Pillai	Solicitor for Public Prosecutions
For the Accused	Mr H Rattray	Stary Norton Halphen

HIS HONOUR:

1John Barron-Kevan, you have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.

2On Wednesday 13 January 2016, you and your then-girlfriend, Lara Mildren, were at a unit on the tenth level of a housing commission in Carlton.  Peter King was the tenant of that unit, and you and Ms Mildren had been staying there for about six weeks.

3The victim in this matter, Ahmed Bashir Rabi, then aged 35, often visited his friend who lived in a unit on the same floor as that of Mr King, and you had met Mr Rabi on a few occasions in the six months leading to 13 January 2016.

4At 3.38 am on 13 January 2016, Mr Rabi arrived at the complex and went to Mr King’s unit looking for you.  He was apparently seeking the return of a mountain bike that he had lent you three weeks earlier, and also the payment of $150 that you owed to him.  Nobody answered the door, and so Mr Rabi left.

5Shortly before 4.30 am, Mr Rabi again knocked on the door of the unit and you answered the door.  Mr Rabi asked for the return of the mountain bike and for the $150.  You told him to wait while you went to get the bike.  You returned some two to three minutes later carrying a small saucepan, opened the security door, and, in a single motion, threw the contents of the saucepan into Mr Rabi's face.  The saucepan contained Momar MO-FLO liquid, which is a drain solvent containing sulphuric acid.  It splashed into his face, eyes and all over his clothing.

6Mr King, who had been awoken by Mr Rabi's presence at the front door, had just stepped into the hallway wearing just a pair of shorts at the time you threw the contents of the saucepan at Mr Rabi.  The acid splashed onto his right arm and upper body, but there is no charge in relation to Mr King and you are not dealt with for that.

7Mr Rabi followed you down the hallway of the unit, and a struggle ensued between the two of you.  Ms Mildren, who had been asleep in the unit, woke to this altercation and approached the two of you.  Believing that you were being assaulted, she smashed a wine bottle on Mr Ravi's head, causing his head to split open and bleed, and then swiped at Mr Rabi's arm, cutting him.  

8Ms Mildren has pleaded guilty to appropriate charges in the Magistrates' Court in relation to her actions, and you are not dealt with for them.

9Mr Rabi removed his shirt, which had disintegrated from the acid, and attempted to wipe the acid from his eyes before stumbling out of the unit.  He located a hose in the building and splashed water on his face in an attempt to relieve the intense pain and burning.  He ran up the stairwell to the fifteenth floor and asked someone to call the police.  He then left the building and went to a nearby 7-Eleven store.  A customer called the police and they arrived shortly after, followed by paramedics.

10In the meantime, you had showered and changed your clothes.  You were absent when police arrived at the unit, but returned to the unit with Ms Mildren whilst police were still present, and you and Ms Mildren were arrested.

11Mr Rabi was taken to the Alfred Hospital where he was placed in an induced coma for three days in the intensive care unit and then transferred to the burns unit where he remained until 5 February 2016.  He required 12 stitches in his head to treat the laceration caused by Ms Mildren. More relevantly, he sustained extensive burns to his face, head, neck, arms, hands, stomach, back and legs.  He required extensive surgery and skin grafts.  In consequence, he is permanently disfigured.  As to his eyesight, no medical opinion as to the prognosis and the extent of predictive recovery was provided on the plea.  What is known is that Mr Rabi's vision is impaired.  He currently has 50 per cent vision remaining in his left eye and limited vision in his right eye.  

12On the plea, I sought assistance from counsel and it was agreed that I should proceed on the basis that there will be enduring deterioration to his eyesight, and I do so.  Mr Rabi's treatment for his physical injuries continues, and he suffers from ongoing post-traumatic stress and nightmares.  These are the facts that form the basis of the charge, recklessly causing serious injury, to which you have pleaded guilty.

13No victim impact statement was tendered on the plea.  Ms Pillai informed me, and I accept from her, that the victim had been spoken to and in her words, he, Mr Rabi, just wanted to know the answer to one simple question; “Why?”

14I turn now to your personal circumstances. 

15You were born on 2 July 1985 in Melbourne and you are now 32 years of age.  You were 30 years of age at the time of the offending.

16Your father, who was a boiler-maker, passed away in a tractor accident when your mother was three months pregnant with you.  Your mother, who is now 64, re-partnered with a man who was both abusive towards her and, relevantly, towards you.  Over your early childhood years, his violence towards you escalated to include belting you and kicking you.  Significantly, in my view, you were diagnosed with ADHD at the age of eight.  Your stepfather’s increasing violence towards you led your mother to leave him when you were aged nine and ten.  Your mother then commenced a relationship with your current step-father about a year or so later.

17You report an enduring and close relationship with your mother, who attended on the plea, and I note who is here today, and now have a good relationship with your step-father.  They have sold their mechanical repair business in Morwell and are now retired.  You have an older half-sister from your mother's marriage prior to your birth who lives in London and a younger half-sister from your mother's current relationship with your step-father.  To your knowledge, none of your immediate family has ever been in trouble with the law.

18Your mother and her then-partner moved to Welshpool when you were around three and then to Morwell when you were aged 16.  You attended the local primary school and then secondary college, firstly at Leongatha and then in Foster.  You completed Year 11.  Consequent upon your ADHD diagnosis, you were prescribed dexamphetamine and you took dexamphetamine between the ages of 8 and 17 as directed.  You ceased the medication at the age of 17 due the side effects, including providing you with disturbed sleep.

19You have had minimal paid employment.  You worked in a restaurant kitchen when you were aged 21 for one and a half years, but ceased that employment because of your drug use.  You worked as a furniture removals labourer for around 12 months in 2014-15.  Essentially, you have been receipt of Centrelink benefit from the age of 16, and you have unsuccessfully applied for disability support pension.

20On the plea, there was tendered Exhibit 6JBK, a report from Mr Jeffrey Cummins, forensic psychologist, dated 28 March 2018. 

21You told Mr Cummins, in his consultation with you, that you had started smoking cannabis around the age of 13 and you then became a regular user.  Aged around 18, you had your first intravenous heroin addiction and it seemed, tragically for you, that heroin addiction has been a constant in your life ever since.  More recently, you had begun to inject methamphetamine.

22In 2010, you married Martina with whom you shared an interest in drugs and a life of mutual drug addiction.  This was clearly an unhealthy and a toxic relationship of co-dependence.  Your marriage came to an end in November 2015 when your wife resolved to stop using illicit drugs.  Your response to the end of your marriage was to surrender yourself completely to your drug addiction.  You told Mr Cummins that at the time of this offending, you were a daily, “full on” drug user; “heroin, ice and weed and I was also taking some Xanax and Valium and I reckon I’d hardly had any sleep for about 15 days before this.”

23I was told by Mr Rattray, counsel on your behalf, that approximately ten years ago you attended a residential drug detox program in Abbotsford.  You had never undergone any extended residential drug rehabilitation, and you expressed to Mr Cummins, spontaneously, that you would welcome an opportunity to participate in the residential drug rehabilitation program.

24In interview with Mr Cummins, you expressed regret and remorse concerning your offending, and you acknowledge the enduring injuries that had been suffered by your victim.  You spoke of your embarrassment and shame for your offending, and stated that you had never thought of yourself as being a violent person or as having an anger management problem.  You are able, with the benefit of hindsight and being drug free, to appreciate the impact upon you of your wife's separation and of how you descended into complete drug dependency.  You recognise that to date, drugs have controlled your life, preventing you from developing your full potential.  This was something you are now motivated to explore and to build upon in a constructive manner for the future.  You said to Mr Cummins, "now I’m motivated to get off the drugs".

25Mr Cummins assessed your current risk of committing a further offence of violence as moderate, although he stated, “I would expect this level of risk to reduce to low if he is able to remain illicit drug free in the community”.  The question mark that hangs over your future is whether you can remain drug free in the community.

26I turn now to the submissions of learned counsel.

27Ms Pillai for the prosecution submitted that this was a serious example of recklessly causing serious injury.  In this regard, she pointed to the unprovoked nature of the attack without any apparent reason or motive.  The fact that the attack came without warning denied Mr Rabi any opportunity to take avoiding action.  Ms Pillai conceded that I must sentence you on the basis that you threw the acid at Mr Rabi on only one occasion.  She pointed also to the extensive and permanent injuries, both in terms of permanent disfigurement and enduring damage to the eyesight, and to his ongoing psychological trauma.  She submitted that whilst this had not been planned in advance, there was nonetheless a level of pre-meditation.  You had to leave the front door and pour the MO-FLO substance into the saucepan, preparatory to throwing the contents into the face of Mr Rabi.

28She submitted that general deterrence has particular significance for sentencing purposes in assaults of this kind.  Moreover, the absence of apparent motive does not reduce the significance of general deterrence, but rather, is of particular relevance where violent crimes of considerable brutality are committed in the absence of any explanation.  Ms Pillai also identified the need for specific deterrence due to your risk assessment by Mr Cummins and your recognition that you have a short fuse.

29Ms Pillai submitted that yours was a late plea at the door of the Court, and I should therefore exercise caution before viewing your plea as attracting more than a utilitarian benefit.  Whilst an offer to plead guilty to recklessly causing serious injury had been made earlier on in the proceedings, such a plea, she reminded me, was proffered on a different factual basis. 

30Ms Pillai submitted that your remorse for your actions in this case is limited.

31Finally, it was submitted that the only appropriate sentencing disposition was a substantial term of imprisonment.

32Mr Rattray, learned counsel on your behalf, realistically conceded that the only appropriate sentencing disposition was in an immediate term of imprisonment with a non-parole period.  He submitted that that the circumstance of this offending places it at the upper end of the mid-range of offences of recklessly causing serious injury.

33Mr Rattray accepted that you had caused very serious injuries to Mr Rabi, and that you have always accepted that fact.  He submitted that you did not intend such injuries, and that you did not envisage or foresee the degree of injury that your actions in fact caused.  The response to that submission is quite simple.  You have pleaded guilty to recklessly causing serious injury.  Your plea of guilty represents an acceptance by you of your awareness that serious injury was a probably consequence of your actions in throwing the contents of the saucepan at Mr Rabi.  That is what you have pleaded guilty to, and that alone is the offending for which you are to be sentenced.

34Mr Rattray submitted that the offence was not pre-meditated. 

35Mr Rattray submitted that your plea should attract more than a simple utilitarian benefit, which is the benefit for saving the community the time and expense of a trial.  In this regard, he submitted there had been a willingness on your part to plead guilty to a charge of recklessly causing serious injury for many months, albeit on a very different factual basis.  There is a clear public interest in the resolution of trials and as such, pleas of guilty will always attract a sentencing discount at the very least reflecting the utilitarian benefit.  I give you credit for your plea of guilty, and whilst it cannot be said to have been entered at the earliest opportunity, in my view, your plea should be understood in the context of the earlier attempts at resolution and I give it such appropriate weight.

36Mr Rattray submitted that at the time of the offending, you were so drug-affected as to now be incapable of adequately explaining why you had behaved in the way that you did, but that you are remorseful.  I accept that, as Mr Rattray said, you have now come to the realisation that what you did has had grave consequences both for your victim, Mr Rabi, and also for yourself.  In my view, remorse may take time to develop and even further time to express.  I accept that you are developing insight into your offending and an awareness of the consequences of your actions on others.

37You have a number of prior convictions dating back to 2003 for offences including theft, burglary and driving offences, for which you were dealt with by means of fines and community-based orders, which you were twice convicted of breaching.  In May 2014, approximately 20 months prior to the offending currently before the Court, you were convicted of assault with a weapon and unlawful assault.  That is your only prior conviction for interpersonal violence.  For that offence, you received a 12 month community correction order which it appears was completed.  You have not served a term of imprisonment in relation to any of your prior convictions.

38Mr Rattray submitted that in terms of your prior criminal history, this offending represents a marked and significant escalation to such an extent as to deprive your prior criminal history of any relevance to my sentencing disposition.  I agree with that submission.

39You have been on remand in relation to this matter since 26 August 2016, and you have been subject, for some of that time, to a more restrictive regime.  You have returned negative urine screens over the past six months following a series of positive results.  You are now, I am instructed, receiving methadone prescription daily.  I am told that you have put on in excess of 45 kilograms whilst on remand, which represents an ongoing challenge to your physical health and your well-being.

40As to your prospects for rehabilitation, your mother, your sister and a family friend attended your plea hearing, and I was informed all three are and will remain supportive of you.  However, as Mr Rattray realistically submitted, your prospects for rehabilitation are conditional upon you achieving abstinence, that is to say, being drug-free and remaining drug-free.  This is, and this will remain, a constant challenge for you, Mr Barron-Kevan.  Your prospects for rehabilitation at this stage are in my view, guarded at best.  You must, quite simply, remain drug-free.

41As to the seriousness of the offending, recklessly causing serious injury is a serious offence as is made clear by the maximum penalty that Parliament has seen fit to impose. 

42In my view, this was a serious example of that serious offence. 

43The attack was entirely unprovoked and it was carried out upon a man who was both known to you and with whom there had never been any problems prior to the assault. 

44The assault was entirely without motive.  As Ms Pillai told the court, your victim would like to know why you acted as you did, and you cannot tell him.  You were severely drug-affected at the time and you had not slept for an extended period.  This cannot be mitigation, but it may explain why you now cannot find an explanation as to why you behaved as you did.

45Whilst the assault was not planned, it was, in my view, deliberate.  I of course accept that there was no element of pre-planning in your offending, but neither could it be described as purely spontaneous.  You left the front door of the unit, obtained a saucepan, obtained the bottle of MO-FLO.  MO-FLO is a liquid drain solvent and is a regularly household item, the toxic qualities of which would be well known and a matter of common sense.  You then poured some of the contents from the bottle of MO-FLO into the saucepan before returning with the saucepan to the front door, opening the door, and throwing the contents of the saucepan into your unfortunate victim's face.  Whatever the reason for them, your acts were in my view deliberate and they were considered.

46Your victim's injuries are grave indeed, with permanent scarring and enduring damage to his vision, and lasting psychological trauma.  You may not have intended those particular injuries, but by virtue of your plea, as I have made clear, you have accepted your awareness that serious injury was a probable consequence of your actions.

47Mr Barron-Kevan, in sentencing you, I must have regard to a range of different factors.  I must give effect to the principles of both general deterrence and specific deterrence, that is to say, I must deter others from behaving like you did, and I must deter you from any repeat of such behaviour.  I must express the community's denunciation of your conduct, and, I should promote, if possible, your rehabilitation.  I take into account the effect that your crime has had on your victim, and I must have regard to current sentencing practices for this kind of offence that you have committed, and to the statutory maximum penalties imposed by Parliament.

48In short, I must try to balance your personal circumstances with the circumstances of your offending as I find them to be.  I give full effect to all of the mitigatory factors to which I have been referred:

(1) Your plea of guilty;

(2) Your developing insight into your offending;

(3) Your expressed remorse; and

(4) Your apparent motivation to now "get off the drugs", in your own words.

49I accept that a part of your childhood was taken from you by the violence perpetrated upon you by your mother's then-partner in your formative early childhood years.  Such childhood experiences may very well have contributed to your development of ADHD.  It may very well have fed into your lack of self-esteem, which was a direct precursor to your usage of drugs, to escape from your feelings.  I accept further that your adult life to date has been hijacked by your drug use.

50Nonetheless, principles of general deterrence, specific deterrence, denunciation and just punishment are the primary sentencing considerations in this case.  There can be no other disposition than an immediate and substantial term of imprisonment.

51If you would stand up please, Mr Barron-Kevan.

52On the charge of recklessly causing serious injury, you are a sentenced to a term of imprisonment of seven years.

53I fix a non-parole period of four years and nine months.

54Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to a term of imprisonment of nine years with a non-parole period of seven years.

55I declare that you have served 621 days of the sentence that I have imposed upon you, and direct that this be recorded in the records of the Court.

56Mr Rattray, are there any custody management issues?  I am aware that he is being managed now by a methadone regime.

57MR RATTRAY:  None that needs to be recorded, Your Honour.

58HIS HONOUR:  Alright.  Can I say, Mr Barron-Kevan, that I have imposed a shorter non-parole period than I would have otherwise been minded to do, so that should you get parole, you will be able to work upon the express desire to get off the drugs and rehabilitation.

59There was a forensic order sought and a disposal order that was sought on the last occasion. 

60MR RATTRAY:  That is by consent.

61HIS HONOUR:  In terms of the forensic sample order, I find that the seriousness of the circumstances of the offending warrant the order.  Mr Barron-Kevan, I have made a forensic sample order.  I am permitting a police officer to take a forensic sample from you, which is usually a buccal swab inside the mouth to get the DNA sample.  I am directed by Parliament to tell you that when the police officer comes to take the sample, should you refuse to give the sample, the police are entitled to use such force as is reasonably necessary to take the sample.

62I will also make the disposal order and hand those to my associate. 

63Ms Pillai, there was a summary matter of failure to answer bail.

64MS PILLAI:  Your Honour, I am instructed to withdraw that charge.

65HIS HONOUR:  Yes.  I will strike that out. 

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