Director of Public Prosecutions v Bellingham
[2024] VCC 335
•19 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01058
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLINT BELLINGHAM |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 & 26 February 2024 |
| DATE OF SENTENCE: | 19 March 2024 |
| CASE MAY BE CITED AS: | DPP v Bellingham |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 335 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly causing serious injury – glassing at a licenced premises - relevant criminal history – early plea of guilty – remorseful – poor prospects of rehabilitation – Bugmy – Verdins
Legislation Cited: s 5(1) Sentencing Act 1991.
Cases Cited:Muller v R [2022] VSCA 193; Winch v R [2010] VSCA 141; Barbaro v R [2012] VSCA 288; Bugmy v R [2013] 249 CLR 517; R v Engert (1995) 84 A Crim R 67; R v Verdins (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Ellis v R [2011] VSCA 36; DPP v Dix [2015] VSCA 118; DPP v Sorensen [2018] VCC 1900; Muller v R [2022] VSCA 1933.
Sentence: 3 years and 9 months imprisonment. Non-parole period set at 2 years 6 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Mr D. Carolan | James Dowsley & Associates Pty Ltd |
HIS HONOUR:
Introduction
1Clint Bellingham, I will sentence you to 3 years and 9 months' imprisonment and will set a non-parole period of 2 years and 6 months' imprisonment. I will declare the 400 days of your pre-sentence detention as time served under my sentence.
2You pleaded guilty to a charge of causing serious injury recklessly. The circumstances giving rise to this charge appear in the 'Summary of prosecution opening upon plea', which is Exhibit A.
Circumstances
3At about 7.30 pm on 4 February 2023, the victim went to The Deck Bar in Frankston. He was with his friends. They were celebrating the 30th birthday of the victim's wife. At about midnight the victim went upstairs to the smoking area.
4Meanwhile, you arrived at The Deck Bar at about 11.15 pm. You had been at a buck's party and had been drinking throughout the afternoon.
5At about 12.30 am, the next day, the victim argued with some of your friends. He was being aggressive. You watched from about 10 metres away. The argument subsided but you walked up to another person and spoke to him aggressively. When that person denied the victim was his mate, you went to the victim. You were holding a beer glass. Another person, William Mallows, tried to diffuse the situation by putting an arm between you and the victim and attempting to pull you away. You put your glass into another hand, pushed Mr Mallow's arm away, shouted 'You fucking rat' and thrust the glass into the victim's throat. The glass broke and caused injury.
6Pausing there. I was asked to resolve a minor point after viewing CCTV footage. After viewing the footage several times, I simply cannot tell whether the victim raised one of his hands immediately prior to you striking him with the glass.
7The victim realised what had happened because he felt blood running from his neck. A security person rendered some aid and called Triple 0. The victim thought he would die. He felt tired and wanted to go to sleep while the security person tried to keep him awake. An ambulance attended promptly, and the victim was taken to The Alfred Hospital.
8At about 1.40 am, you attended the emergency department of the Casey Hospital and were treated for injuries to your right hand caused by the glass.
9Eighteen days later you were arrested at home. When interviewed you claimed the victim punched you first and you acted in self-defence. You regretted what happened and felt sorry for the victim.
10Dr Schreiber, a forensic physician, examined the clinical records of the hospital. They disclosed:
(a) two wounds to the right side of the neck with one affecting the head bending muscle and the platysma muscle;
(b) an injury to the left mandible;
(c) injuries to the blood vessels of the neck including a fully lacerated left facial artery, multiple lacerated branches of the left facial artery and a fully lacerated right external jugular vein.
11Not unnaturally, there was emergency surgery to repair the wound or wounds and tying off the blood vessels. Since there was profuse bleeding at the scene and continued bleeding, a blood transfusion was necessary.
12Dr Schreiber expressed the view that without the treatment in the hospital, the victim could have died from the bleeding from the artery and the jugular vein.
Victim impact statement
13On 28 August 2023, the victim made an impact statement. From a physical perspective, he has been left with scars to his neck and jaw. There has been nerve damage for the entire right side of his neck and is numb. He cannot fully bring his lips together. It affects his ability to speak, eat and smile comfortably.
14He is now constantly anxious. This is particularly so when he is present in a social setting and alcohol is being consumed. His ability to enjoy a normal social life is impaired.
15His wife accompanied him in the ambulance. She was then pregnant. Not only did he fear for his life but the effect upon his wife witnessing what had happened was profound. His three-year old daughter was not present, but she has seen the effect of the incident upon her parents and has left 'a lasting mark on her young mind'.
16Win Tan is a general practitioner who wrote a brief report about the victim, dated 29 February 2024. Not being his treating doctor, Dr Tan simply recites his complaints. There is no prognosis or suggestions as to further treatment. What is recorded is the victim has a pins and needles feeling to the right side of his neck when it is touched and has a 'funny' feeling in the left side of his lower lip.
Criminal history
17Between 18 June 2010 and 3 November 2022, you have appeared in a criminal court on 18 occasions and have been found guilty or convicted of 213 charges. Thirteen of those charges involved forms of assault. They comprise four charges of reckless conduct endangering serious injury, three charges of recklessly causing injury and six charges of assault.
18Not including the short periods of imprisonment due to your contraventions of drug treatment orders, you have been sentenced to imprisonment on
11 occasions with your longest sentence being 12 months' imprisonment.
Personal
19You are now 33. You were born in Dandenong and are the youngest of six children. You have a maternal half-brother, two paternal half-brothers and a sister. One of your paternal half‑brothers suicided in his 40s. You have a good relationship with your siblings and remain in regular contact with them. Prior to this offending, you lived with your mother.
20Your childhood was chaotic and unstable, marred by exposure to substance use, family violence, physical and verbal and sexual abuse, and parental separation. You saw your father being intoxicated daily. He was violent when drunk. You saw him throw knives at your mother. From the age of six, you attempted to intervene but this often resulted in being attacked by your father with a belt or a wooden spoon. You felt targeted by your father compared with your siblings.
21When eight, you parents separated. Later, they reconciled and your father returned when you were 12. Because of the family violence you witnessed, you would run away from home, for days at a time. At 20 your father died from throat cancer. You were his carer prior to his death.
Education and work
22In primary school, you were diagnosed with a learning disability. You had difficulty concentrating, reading, spelling, and understanding information. You attended a technical school until expelled. You went to a high school and completed Year 7.
23You have a short and sporadic history of employment, working in various labour roles such as restoration and concreting. You worked throughout your Drug Treatment Order (DTO) in 2021 up until the completion of the order in November 2022.
24While in custody, you have worked as a carer for an inmate who is wheelchair bound, supporting him in his daily tasks. Upon your release from prison, you would like to return to concreting work with your previous employer.
Relationship history
25You have had two serious relationships. The first occurred between your ages of 15 to 21. It was marred by mutual substance abuse and verbal arguments. You have two children from this relationship. You contact your son through Facebook, but not your daughter. You have not seen your children for a long time. You were the respondent in a family violence intervention order protecting your children and your former partner.
26The second relationship spanned 10 years with Danielle. You have two children from this relationship. While previously living with her and your children, she wanted you to demonstrate you were capable of not reoffending, before allowing you move back in with her. You have had regular contact with your partner and enjoy monthly visits from her with her children.
Substance use
27From the age of 13, you started using drugs and alcohol. Your father was an alcoholic and your brothers have also used heroin and cannabis. You used substances as a coping mechanism. However, you deny your alcohol use ever became problematic even though you were intoxicated on the night of the offending although you had not drunk alcohol for a long time beforehand.
28Since 14, you used numerous substances including inhalants, heroin, ecstasy, cocaine, amphetamines and alprazolam. From 16, you used methamphetamine and GHB. On the night of this offending, you had consumed about 15 to 20 millilitres of GHB.
29You were abstinent for almost two years, however, after the current offending you relapsed and used methylamphetamine in an attempt to supress your feelings of paranoia in the context of being arrested. You used methylamphetamine consistently across a nine-day period before your arrest. In an attempt to address your methylamphetamine use, you have been on an opioid replacement therapy, Suboxone, for a number of years.
30In 2021, you were sentenced to a two-year Drug and Alcohol Treatment Order. You completed it within 13 months and graduated in November 2022. You remained abstinent from drugs throughout the period of the order and returned clear urine tests and engaged with a counsellor twice a week. The exit report concluded[1]:
‘Mr Bellingham should be commended and congratulated for his exceptional progress throughout the time on his DATO…Despite an extensive history of illicit substance use and criminal offending, Mr Bellingham has maintained abstinence through his DATO, demonstrating commitment to his recovery goals and prosocial lifestyle…He has demonstrated focus and motivation in meeting all of his obligations, making excellent progress since the commencement of his order.’
[1] DATO Graduation report, dated 28 October 2022 at pages 4-5.
Psychologist
31Daniella Kocic is a psychologist. On 26 September and 3 October 2023, she interviewed you at the request of your solicitors[2]. She took a detailed history from you.
[2] Report dated 27 October 2023.
32Ms Kocic diagnosed you as suffering from several psychological disorders and substance use disorders: a major depressive disorder, a panic disorder and a complex post-traumatic stress disorder. She linked the last disorder with your childhood trauma and the assaults upon you in prison and elsewhere.
33At paragraph 134 of her report, Ms Kocic said:
‘Taking into consideration Mr Bellingham's history, the circumstances leading up to the offending, and his functioning at the time of the offences, several factors likely contributed to the offending behaviour. His exposure to adverse childrearing experiences impacted his mental health functioning within society and predisposed him to have a higher susceptibility and lower threshold for perceived threats, psychological distress, and emotional dysregulation. Additionally, his early exposure to family violence likely normalised and predisposed him to an increased susceptibility to model his behaviour as a form of intergenerational violence (i.e., a perception that violence solves problems).’
34She noted persons with your kind of post-traumatic stress disorder are more likely than those without a trauma history to respond to situations disproportionately when their threat system is reactivated, as was apparently in your case.
35She considered your drug and alcohol use would have heightened your risk-taking behaviour, impulsivity and behavioural disinhibition. In that regard, your consumption of alcohol and drugs leading up to this incident is remarkable. On the night you used cocaine with, you believe, methamphetamine cut into it. Also, you had consumed 15 to 20 millilitres of GHB throughout the night. Earlier that day, you had been at a friend's place and drank alcohol to the point of intoxication.
36Ms Kocic considered you are a high risk of general re‑offending. She was unprepared to assess your risk of violent re-offending and recommended a specialised risk assessment.
37As to the effects of imprisonment, she said[3]:
…it is noted that imprisonment would likely weigh more heavily on
Mr Bellingham than a person without his conditions. In individuals with Major Depressive Disorder (MDD), Panic Disorder (PD), and Complex Post Traumatic Stress Disorder (C‑PTSD), there is potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate his symptom profile and risk of decompensation.[3] At paragraph 141.
Discussion
Purposes
38Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
39Each of those sentencing purposes is relevant to your sentencing.
40In glassing cases, general deterrence and denunciation are important sentencing purposes. Why this is so was explained in the case of Muller v R[4]:
But the judge was surely right in saying that denunciation and general deterrence were very important factors to be taken into account. Alcohol fuelled violence is a major social evil. Not infrequently it arises in licensed premises and in circumstances where a glass or bottle will be close at hand. To use a glass as a weapon and to smash it into the side of the victim's head carries with it the gravest risk of serious injury and must be denounced. To the extent that they can, the courts must impose sentences that bring home the seriousness of this offending, the risk of serious injury that is involved and the catastrophic consequences that may follow.
[4] [2022] VSCA 193 per Niall JA.
Maximum penalty
41The maximum penalty for the offence of recklessly causing serious injury is
15 years' imprisonment.Nature and gravity of the offence
42Dealing with the charge of recklessly causing serious injury and under the heading 'Glassing cases – a serious example of RCSI', in Winch v R[5], Maxwell P and Redlich JA set out a series of propositions[6]:
(a) striking to the face or head with a glass carries the high risk of serious injury;
(b) the mental element of recklessness means the offender has consciously disregarded a known risk;
(c) in assessing the seriousness of this offence, a court must consider the degree of probability serious injury will result and the degree of seriousness of the injury foreseen.
[5] [2010] VSCA 141.
[6] Ibid at [31] to [35].
43Your blow mainly struck the victim's neck. Given the nature of the important blood vessels in the neck this was an extremely dangerous area to strike.
44I agree with the prosecution submission your offending was due to alcohol-fuelled aggression. There was no element of self-defence and none was submitted on your behalf.
45I would not find there was some degree of planning involved. Although not involved in the original argument, you approached the victim, spoke to him, resisted the intervention of a friend and struck. This blow is graphically depicted in the CCTV footage. These actions do not indicate planning.
Prospects of rehabilitation
46Apart from your guilty plea being some evidence of your remorse, you told
Ms Kocic of your guilt and remorse. Your counsel points out there are limited statements of your remorse when interviewed by the police. In one you said,I definitely regret it, it's nothing I am proud about. I'm sorry for the bloke, I feel sorry for myself.
47On the other hand, Ms Kocic observed[7]:
Mr Bellingham had partial insight into his offending behaviour. He acknowledged the impact his actions had on the victim and expressed remorse. Despite this, he believed his actions were, in part, justified based on his perception of threat and the belief something was going to occur with the victim.
[7] At paragraph 80.
48These views were expressed more recently than your answer to the police. They represent your ambivalent view of the crime. I do not consider you have an accurate appreciation of the wrongfulness of your offending. I could not find you are someone who desires to do what reasonably can be done to repair the damage and to clear your conscience[8]. However, I do accept you are genuinely remorseful and determined not to re-offend.
[8]Barbaro v R [2012] VSCA 288 at [39].
49You negotiated one of the most effective programmes in the criminal justice system to overcome the effects of substance abuse and criminality. I am speaking of the drug and alcohol treatment order. You left the programme in November 2022 and yet three months later you commit this offence. The order had so little lasting effect that you used methamphetamine consistently over a nine-day period before your arrest as well as alcohol and other drugs on the day of the offence.
50The letters from your mother, brother and sister attest to the changed person who emerged from the drug and alcohol treatment order and each, in its own way, asks me to give you another chance. Clearly, your family members support you. You have remained drug-free in custody. You have undertaken three programmes, one related to methylamphetamine and one to alcohol.
51You are a product of your earlier life, which was appalling, but you seem incapable of change. Courts have imposed six community correction orders. They have contained conditions to deal with your drug and alcohol abuse. All, apparently, to little avail. It must be remembered this was your second drug treatment order. The first was imposed on 26 November 2015.
52Your counsel submitted you have reasonable, albeit somewhat guarded, prospects of rehabilitation. Although others have noted a change in your behaviour since the imposition of the drug and alcohol treatment order, it did not prevent you from re-offending within three months of the end of the order. There is your desire to have a meaningful relationship with Danielle and your children and she has the same desire. But that desire existed at the time of this offending. However, you are now 37. You are entering middle age. Surely, the desire to live a normal life is present.
53The sentence I will impose is by far the largest sentence of imprisonment imposed on you. It should act as a deterrent. It may even put you on the path of real rehabilitation.
54Overall, at present, I consider your prospects of rehabilitation are poor. They are not uncertain. Much would need to be done to change that view.
Bugmy
55The principle in Bugmy's[9] case applies. The impact of your earlier life on your behaviour is explained by Ms Kocic. It does moderate your moral culpability.
[9]Bugmy v R [2013] 249 CLR 517.
56Some of the purposes of sentencing point in different directions. The Court in Bugmy’s case quoted the words of a judge in a different case[10]:
A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration.
[10]R v Engert (1995) 84 A Crim R 67 at 68.
57But, like Mr Bugmy himself, the person you are highlights other purposes of sentencing including the need to protect the community from you.
Verdins
58Your counsel relies on principles or limbs 1, 3, 4 and 5 set out in the case of R v Verdins[11].
[11] (2007) 16 VR 269.
59As I say, you are the product of a dreadful upbringing. It has left you with the psychological state described by Ms Kocic. This state sits with your substance abuse. The abuse aggravates some of the symptoms of your psychological state. One could not say your behaviour is due to your substance abuse alone. To an extent, the impact of general deterrence and denunciation as sentencing purposes are slightly reduced. Unfortunately, experience shows there are a significant number of persons in the community who suffer a somewhat similar psychological fate as you. It is not a case where few would identify with you.
60The considerations of Bugmy and Verdins operate to reduce your moral culpability.
61I do not consider your impaired psychological functioning affects the sentencing purpose of specific deterrence. You are not incapable of change, at least, for a while as witnessed by your conduct under the most recent drug and alcohol treatment order.
62The Director's counsel conceded principles 5 and 6 apply, which I did not mention before. Ms Kocic spoke of the combined effect of the three psychological disorders. Potentially, you could experience significant fluctuations of your mood with prison making your symptoms worse and risking the worsening of your psychological state. Those views mean those principles would weigh in mitigation.
Guilty plea
63Your guilty plea was entered during a committal mention hearing in the Magistrates' Court. It is a plea made at the earliest reasonable opportunity given the need to investigate whether you were fit to stand trial and the defence of mental impairment.
64There are several benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. They show the victim and the world in general that you committed the offence.
65Second, they relieve the victim from the need to give evidence against you in a trial. I daresay for him this would have been a difficult task.
66Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
67Fourth, the crisis addressed in Worboyes v R[12] and other cases has abated. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. More recently, this Court announced it had overcome the backlog of cases created by the pandemic. It had reached the pre-pandemic level of pending cases. But in another respect the virus still disturbs the smooth running of jury trials in this Court, principally through the unavailability or loss of jurors. Pleading guilty still has benefits to the system identified in the case of Worboyes but to a much lesser extent.
[12] [2021] VSCA 169.
68Overall, your guilty plea entitles you to a sizeable discount on the sentence which would have been imposed if you had pleaded not guilty to the charge but had been found guilty after a trial.
Current sentencing practices
69I have already referred to the case of Winch in which Maxwell P and Redlich JA examined 16 sentences in this Court between 2007 and 2009 and concluded those sentences did not reflect the serious nature of inherently serious conduct.
70On the issue of current sentencing practices, your counsel drew my attention to two sentencing appeals in the Court of Appeal and one sentence in this Court[13]. While the Director's counsel drew my attention to another sentencing appeal in the Court of Appeal[14].
[13]Ellis v R [2011] VSCA 36, DPP v Dix [2015] VSCA 118 and DPP v Sorensen [2018] VCC 1900.
[14]Muller v R [2022] VSCA 193.
Sentence
71On the charge of recklessly causing serious injury, I sentence you to 3 years and 9 months' imprisonment and set a non-parole period of 2 years and 6 months' imprisonment. I declare the 400 days of your pre-sentence detention as time served under my sentence.
S 6AAA
72If you had pleaded not guilty to this charge but had been found guilty after a trial, I would have sentenced you to 5 years and 4 months' imprisonment and set a non-parole period of 3 years and 7 months' imprisonment.
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