Director of Public Prosecutions v Blackwood (a pseudonym)

[2024] VCC 568

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC BLACKWOOD (a pseudonym)

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2024
DATE OF SENTENCE:	29 April 2024
CASE MAY BE CITED AS:	DPP v Blackwood (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 568

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing

Catchwords:              Plea of guilty – family violence – recklessly causing injury – property damage – aggravated burglary – common law assault –  alcohol abuse – Bugmy principles – Verdins principles – Borderline Personality Disorder

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)

Cases Cited:Smith v The Queen [2020] VSCA 159 - Marrah v The Queen [2014] VSCA 119 - Hogarth v The Queen [2012] VSCA 302 - DPP v Meyers [2014] VSCA 314 - Worboyes v. The Queen [2021] VSCA 169 - Bugmy v The Queen [2013] HCA 37 - R v Verdins [2007] VSCA 102 - DPP v Hermann [2023] VCC 1043 - Newton v The Queen [2021] VSCA 207 - Bogdanovich v The Queen [2011] VSCA 388 - Mill v The Queen ([1988] HCA 70; (1988) 166 CLR 59

Sentence:                  Total Effective Sentence of 4 years and 8 months imprisonment, non-parole period of 3 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr L. Barker	Leanne Warren & Associates

HER HONOUR:

1Eric Blackwood[1], you have pleaded guilty to:

·     Three (3) charges of Intentionally Damage Property

·     Two (2) charges of Causing Injury Recklessly

·     One (1) charge of Make Threat to Inflict Serious Injury

·     One (1) charge of Aggravated Burglary

·     One (1) charge of Common Law Assault.

[1] A pseudonym

2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A and this constitutes the factual basis upon which I sentence you.  

Circumstances of the offending

3You had known Jennifer Laurie[2] for about ten years and had been in a relationship for six.  That relationship ended in 2019.  You have two children who reside with Ms Laurie and who, at the time of the offending, were aged six and four.  Ms Laurie also has two children from a previous relationship, a daughter, Annabelle Laurie[3], who at the time of the offending was aged 21, and a son aged 5.

[2] A pseudonym

[3] A pseudonym

4In the months leading up to 21 October 2022, you and Ms Laurie were spending more time together to build a better relationship for your young children.  You both agreed that you could attend her address on 21 October 2022 after you finished work.

5On Friday 21 October 2022, you commuted after work on public transport to
Ms Laurie’s address in Mornington, and arrived at approximately 7.00 pm. You took with you some alcohol and during your commute you had consumed several bottles of Japanese liquor and prescription medication.

6At about 7.57 pm Ms Laurie and you took the dog for a walk with your children, returning at around 8.18 pm.

7At 9.25 pm you were overheard by your 6-year-old son referring to Ms Laurie's mum as a ‘fucking dog’. As a result, he made a hand gesture by cocking his thumb back and pointing at you, which enraged you. You took offence and were convinced that the children had been turned against you.

8You blamed Ms Laurie and started to behave aggressively towards her.  You took her mobile phone and tried to call her mother.  You then tried calling, and then Facetiming, Annabelle and ended up verbally abusing her.  You then threw Ms Laurie’s mobile phone to the ground and picking it up, repeated the action and destroyed the phone. (Charge 1 – Intentionally Damage Property).  At 9.32 pm, Annabelle, concerned for her mother, called Triple 0 and proceeded to make her way to her mother's address with a friend.

9You returned inside the address and began verbally abusing Ms Laurie, telling her that you were going to kill her. You paced around the house assaulting Ms Laurie by punching, kicking, headbutting and smashing a can of alcohol across her head.  At the time your young children were in the house. Ms Laurie believed you were going to kill her.

10You pushed Ms Laurie towards the laundry where you disabled the power to the security camera fixed to the front of the house. The CCTV cuts out at approximately 9.25 pm.

11You grabbed her by the throat and choked her. You then squeezed her with a single hand pincer grip. You re-adjusted your hold for a better grip and squeezed harder. She was petrified and convinced you were going to kill her. You then headbutted her to the left side of her head causing visible swelling and a nosebleed. Your 6-year-old son was standing in the hallway watching helpless as he screamed at you not to kill his mother. You then kicked Ms Laurie to the left leg causing her to collapse to the ground. She suffered injuries as outlined in the prosecution opening at paragraph [15]. (Charge 2 – Causing Injury Recklessly)

12While Ms Laurie was on the ground, you walked to the kitchen and grabbed two large knives from a knife block.

13You then threw an aerosol through the kitchen window. (Charge 1 - Intentionally Damage Property).  You then moved to the living room and sat on the couch telling her that she had ten seconds to find your phone, or you would stab her.  You started counting to ten and gave her the option of being stabbed in the head or chest (Charge 3 – Make Threat to Inflict Serious Injury). As Ms Laurie desperately searched for the phone, you followed her throughout the house assaulting her.  

14Your son pleaded for you to stop hurting his mother and offered to help find the phone.  Both children were hysterical, crying and yelling, 'please stop, please don't kill mum'.  Your daughter asked you if you were going to kill her mum.  You initially responded, 'No' and when asked again you replied, 'Yes'.

15You got up from the couch and threw a school bag belonging to your son through the front entrance window. (Charge 1 - Intentionally Damage Property)  

16You and Ms Laurie moved to the front yard of the address .  You continued to assault Ms Laurie by hitting her numerous times in the face.

17From around 9.36 pm neighbours could hear children screaming and other commotion and called Triple 0, as outlined in the prosecution opening. 

18Gabriel Jordan[4], who resided nearby,  heard Ms Laurie and her children screaming.  He grabbed a crowbar and walked from his house to a neighbour’s home, and spoke to Charles Schultz[5].  Mr Jordan and Mr Schultz walked onto the road, positioning themselves across the street from you and Ms Laurie. Danielle Henderson[6], Mr Schultz’s wife, followed behind Mr Jordan and Mr Schultz

[4] A pseudonym

[5] A pseudonym

[6] A pseudonym

19Mr Jordan yelled at you numerous times to try and de-escalate the situation. Ms Laurie identified that you were going to attack Mr Jordan and attempted to hold onto you.  You slashed at Ms Laurie with a knife, missing her, and then turned and ran at Mr Jordan.  You yelled at him, stating that you were going to kill him.  Within a couple of seconds, you bridged the gap between you both, catching Mr Jordan off-guard.  You raised a knife above your head and attacked in a downward movement.   Mr Jordan stepped back defensively holding his arms to his front and the crowbar vertical to the ground, unsure if you made contact.  Mr Jordan ran to his address, with you following.

20At 9.46 pm Christina Whitehead[7], Mr Jordan’s wife, called Triple 0.  Ms Whitehead stood on the road outside her house holding her one-year-old daughter as you chased her husband towards their address. 

[7] A pseudonym

21At 9.47 pm Georgia Henley[8] called Triple 0 again.  Ms Henley observed you assaulting Ms Laurie from her house, before charging at Mr Jordan.

[8] A pseudonym

22As Mr Jordan ran towards his house, you followed with two knives.  As he attempted to open his front door, you grabbed onto the left side of Mr Jordan's body with one hand and with the other held onto the crowbar.  In a short struggle, the crowbar dropped to the ground, and you stated that you were going to kill him.  He managed to open the security door and you raised the knife above your head and stabbed Mr Jordan in a downward motion connecting to his left arm causing the blade of the knife to break and fall to the ground.  Mr Jordan defended himself from further strikes, causing a laceration to the web of his right hand and a laceration across his right wrist. (Charge 4 – Causing Injury Recklessly)

23Mr Jordan believed that his life was over, certain that you were going to kill him.  As the knife blade hit the ground Mr Jordan managed to pull the door shut behind him and locked it.  You stabbed at the door with the second knife and bashed on the front window several times before walking away (Charge 5 – Intentionally Damage Property).

24While you were focused on Mr Jordan, Danielle Henderson[9] told Mr Schultz to take your son, who at this time was at the front of Ms Laurie’s home,  and Christina Whitehead who was standing on the road, to Mr Schulz’s home, at number 4 of the stipulated street,  where they could seek refuge.  Samuel Schultz[10], the son of Mr Schultz and Danielle Henderson, waited at the front door.

[9] A pseudonym

[10] A pseudonym

25Ms Henderson hastily moved to the front door of Ms Laurie’s address, where Ms Laurie was holding her 4-year-old daughter. Ms Laurie pleaded to Ms Henderson to take her daughter, telling her that you were going to kill them.  Ms Henderson noticed that the front gate of number 30 of the stipulated street was open and carried the child into the front yard to hide.

26As you re-entered the stipulated street from number 5, you walked to number 4  and removed the fly screen to a large window located at the front of the house.  
Mr Schultz, his son, Ms Whitehead and your 6-year-old son were hiding within the house. You then ripped off the metal netting to the security door and kicked the front door with significant force several times causing the door to bow. (Charge 6 – Intentionally Damage Property).

27Whilst you were at number, Ms Laurie ran to the location where Ms Henderson was hiding in the yard with your daughter.  You observed Ms Laurie and advanced toward her.  Ms Laurie noticed that you had identified her, and she ran through the gate in a panic stating that you were coming.  Georgia Henley opened the front door and offered refuge to her, Ms Henderson and your daughter.

28Other neighbours who could either hear or see what was happening, called
Triple 0, as outlined in the prosecution opening.

29You walked to number 30 of the stipulated street, armed with a knife. Ms Henley was hiding in the master bedroom watching you approach while the others hid in the laundry.  You started punching and kicking the front door attempting to gain entry, and then banged on the glass panel next to the front door.

30You yelled that you knew they were all in the house and that you were going to enter and kill them.  Ms Henley, terrified and fearful of you entering her premisses, yelled out that she was going to call the police.

31You walked to the master bedroom window positioned next to the front door and removed the fly screen.  You then tried to smash the glass with your hands before grabbing a tabletop from the garden area and using it to smash the window. Ms Henley was pleading with you to leave, saying that no-one was inside.

32You climbed into the house via the broken glass window into the bedroom. You cut yourself on the broken glass and left blood on the bed cover and on the floor inside. (Charge 7 – Aggravated Burglary).

33At about 9.57 pm police arrived at Adina Place, Mornington.

34As you gained entry to the premises of Ms Henley, she ran to the front door and outside, closing the gate behind her. You chased her out the front door holding the knife.

35Ms Laurie’s daughter, Annabelle, and her friend arrived at Adina Place.  As you exited the front gate of number 30, you identified her and yelled to her, 'Annabelle you dog, I’m going to get you', and ran after her with the knife in hand. (Charge 8 – Common Law Assault.)  She screamed and ran past the front of the divisional van as you followed.  Police in the divisional van observed you and accelerated the van into you knocking you to the ground and you were then apprehended, still holding the knife.

36Police later examined and photographed the scene, identifying the various damage and photographing injuries, as outlined in the prosecution opening.

37You were highly agitated and required sedation by paramedics before being transported to Frankston Hospital for treatment.  On 24 October 2022 you were transported to Frankston police station for interview.  You provided a mostly
‘no comment’ interview, admitting that you were present, however could not recall the incident.

Gravity of offending

38Mr Blackwood, on the evening of 21 October 2022, you engaged in a spree of serious offending, terrorising your ex-partner and your neighbours; good people who were just trying to help and who were acting out of concern for the safety of your ex-partner and your young children. You behaved in a confrontational, aggressive, threatening and deplorable manner.   As your Counsel put it, yours ‘was a savage, uncontrolled, explosion of rage by a man against innocent people who neither expected nor merited such conduct’.  In broad terms, I accept the submission of your counsel that your offending was unsophisticated and that there was no premeditation or planning involved.   Also, whilst I have no doubt that it may have seemed otherwise to your victims, it was of a relatively confined duration.

39I am required to assess the gravity of each charge and also your overall criminality.  Charge 1 is a rolled-up charge involving damage of Ms Laurie’s mobile phone, kitchen window and front entrance window. The reckless cause injury is constituted by the acts outlined in the prosecution opening, including by you grabbing at Ms Laurie's throat and choking her.  She was petrified that you were going to kill her. You then headbutted and kicked her causing her to collapse to the ground.  Your 6-year-old son watched this take place.  She suffered a fracture of the lower left leg involving the proximal shaft of the fibula, and a bruise and small laceration under her left eyebrow.  You then also threatened her.  After grabbing two large kitchen knives, you gave her ten seconds to find your phone, otherwise you would stab her. Your offending against Ms Laurie was significant, brutal and cowardly. In the circumstances of your case, specific and general deterrence, denunciation and just punishment are prominent sentencing factors.  As stated in Smith v The Queen[11]:

… the rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking.  Those who engage, or contemplate engaging, in such violence – in whatever context – should be in no doubt that offending of this kind will attract heavy sentences.  By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.[12]

[11] Smith v The Queen [2020] VSCA 159 [7]

[12] see also Marrah v The Queen [2014] VSCA 119

40In respect of your offending against Mr Jordan, he was just trying to de-escalate the situation and instead you pursued him and attacked him with your knife, right up until the point where he was trying to retreat into his own home.  As outlined in the prosecution opening, he suffered a large laceration to the left bicep region laterally requiring 12 non-absorbable sutures, a 1.5 centimetre laceration to the right-hand requiring four non-absorbable sutures and 2.5 centimetre superficial laceration to the right wrist.   In respect of the common law assault, the subject of Charge 8, after police had arrived, and near the end of your rampage, you saw 21-year-old Annabelle, Ms Laurie’s daughter, threatened to get her and ran after her with knife in your hand.   

41Charge 7 is a charge of aggravated burglary.  This is an inherently serious offence as indicated by the maximum penalty of 25 years' imprisonment.  The community views offending of this kind as extremely serious and there is an expectation that Courts will impose condign sentences accordingly.  In assessing the objective seriousness of your offending, I have had regard to such decisions as Hogarth v The Queen[13] and DPP v Meyers.[14]  I have taken into account a range of considerations in an assessment of the gravity of this offending.  Your intent at the time of entry was to assault.  You were yelling that you were going to enter and kill those who were hiding from you.  You punched and kicked at the front door attempting to gain entry and ended up smashing the master bedroom window and climbed into the house.  You attended the premises carrying a knife.  You were alone.  You clearly knew people were inside the house and you were someone who, in that moment in time, was clearly feared.  The whole event was confrontational and terrifying.  Given your possession of a knife and the forcible manner of, and the violent intention accompanying, your entry into Ms Henley’s home, this is a serious example of such offending. 

[13] Hogarth v The Queen [2012] VSCA 302

[14] DPP v Meyers [2014] VSCA 314

42Your Counsel submits that at the time of your offending you had been trying to
re-establish yourself.  You had been released from your last prison sentence in early February 2022, after serving it in its entirety. In some respects, you had made some progress, securing full time work as a removalist and making attempts to mend your relationship with Ms Laurie and your children.  On the date of your offending, you in fact had been invited over for dinner.  However, you had not addressed your long-standing issues with alcohol.  You were drinking before you attended her home that night and when you arrived you were thoroughly intoxicated. You told psychologist, Mr Austin Campbell, that you were drinking heavily in the lead-up to your arrest.  You told him that your behaviour would become unpredictable, and you would become heightened easily. It seems clear enough that alcohol contributed to your disinhibition, uncontrollable and aggressive behaviours on the night of your offending.   Of course, this is no excuse, and the community cannot be expected to tolerate alcohol-fuelled violence of this magnitude. Also, your children, Mr Blackwood, were exposed to your behaviours, and you should know, only too well, the likely impact of this on them.  Your moral culpability is high, though I accept that some modest reduction is appropriate in the circumstances, which I will return to in a moment.

Victim impact

43Georgia Henley provides a statement in which she powerfully and eloquently speaks of the far-reaching and profound impact of your offending.  It has affected all aspects of her life, at home, at work and socially.   She states: ‘What he did to me, changed my feelings of security forever, both physical and emotional.  A home that I once felt so proud of will now always be a place of fear.  Everything that I built for myself was ruined by what he did that night.’  She speaks of her security concerns and how she is now easily triggered by so many surrounding circumstances, such as a sound in the street, or a person wearing the same clothing that you were wearing on the night, a loud male voice and the squealing, crying or shouting of children.  These triggers are experienced more profoundly as she works as a primary school teacher and feels that she has no relief from what now causes her anxiety.  She speaks of her own trauma and the vicarious trauma she experienced by what she also witnessed that night.  While your offending has clearly caused her considerable harm and has been financially and emotionally draining, she is determined to prevail and not be a victim. 

44Gabriel Jordan was only trying to help on the night of your offending.  To use his own words, ‘That night all I wanted was to investigate and help my neighbours when I heard the loud shouting and a child screaming for their mother to not be killed.’  Sadly, his good deed has now ‘stripped [him] of [his] fervour and adventure for life.’  He speaks of his terror on the night and how he believed he was about to die.  He suffers PTSD and is now hypervigilant, anxious, fearful and rarely goes out in public.  The scars on his arm and hand bare an ‘incessant reminder’ of what you did.  His trust in people has been destroyed forever.  He speaks of his significant physical injuries and his acute psychological distress which has impacted all aspects of his life, including his ability to maintain employment.

45Christina Whitehead is married to Mr Jordan and she refers to the trauma of having to contemplate life without her husband and the thought of raising their young child alone.  Every day, in her home environment, she is reminded of your aggression and violence.  She states, ‘Since the incident I have been overly anxious, hyper aware of noises and hyper vigilant of security.  I am fearful in my own home.’ 

46Charles Schultz refers to the life changing consequences of your offending.  It has impacted his family, it has affected his sleep, outlook on others, his sense of security and, regrettably, his willingness or ability to respond in the future to someone in need of help.  Danielle Henderson, who is married to Mr Schultz, speaks of how she has had to move and uproot her life.  As a result of your offending, she has suffered severe anxiety, hypervigilance, insomnia and has felt very guarded and wary around adult males.  It has undermined her sense of trust and security and has affected her relationships with others, including her husband.  She feels distress performing daily tasks and reflects on how much her life has changed.  She speaks of her suffering, her anger at you and her engagement in long term therapy to try and work through the mental, emotional and physical side effects she has experienced.

47In sentencing you, I take into account the impact of your offending.   

Plea of guilty

48Now while your plea of guilty was not entered at the earliest opportunity, and a contested committal hearing did proceed, in all the circumstances, I accept that it does entitle you to an important sentencing discount.  As of mid-2023 plea offer discussions commenced and ultimately the matter resolved to a reduced indictment. Your plea of guilty has important utilitarian value, and I take into account, as submitted by the parties, the Worboyes principles.[15] It has saved considerable resources and the witnesses in the case the further trauma of giving evidence at a trial.  I also accept that your plea of guilty indicates a willingness to facilitate the course of justice, take responsibility for your offending and is indicative of remorse.  

[15] See Worboyes v. The Queen [2021] VSCA 169 {35].

49Given your state of intoxication, you claim to have little or no recall of the events of that evening, although, your Counsel submits, you accept full responsibility for them.  Mr Campbell notes that your ability to assume responsibility for the offending is limited by your stated lack of memory, however despite this, you acknowledge the inappropriateness of your actions and the need to engage in treatment to address issues contributing to your offending.  

Personal circumstances

50Your personal history was comprehensively outlined by your Counsel, Mr Barker, and is outlined in the report of Mr Campbell.

51Recently you turned 32 and you were 30 at the time of the offending.  You are the second of four children in your family.  You grew up in the Langwarrin area with your parents, who separated when you were 7 years of age.

52Your father passed away in 2021. He had worked for Victoria Police in their impounded car lot.  Your mother works as a part-time house cleaner.  You have always enjoyed a strong relationship with your mother and remain close with her.  You also continue to have contact with your siblings and are able to access support from them. 

53As put by your Counsel, notwithstanding the good relationship you had with your mother and her efforts, you had a ‘terrible childhood’, a consequence mainly of your father's behaviours and your vexed relationship with him.  Your father had issues with alcohol and you describe him as a ‘very violent man.’ You were exposed to domestic violence as a child and young person.  You witnessed violence perpetrated against your mother and were a direct victim of severe violence yourself.  Your earliest memories in life are of the chaos wreaked by your father, including serial brutal assaults on your mother.

54When your parents separated, you had difficulty adjusting and became anxious, agitated and experienced behavioural problems, for which it appears you received some psychological assistance.  For a period of time, you also moved between your parents and experienced homelessness.

55You were educated until Year 7, leaving school at the age of 13.  You struggled at school and experienced learning difficulties.  You were diagnosed with ADHD and your ability to engage in class was impacted by your limited attention and inability to control impulsive behaviours.  Also, you were a frequent victim of bullying at school because of both your diabetes and your learning problems. You told Mr Campbell that you were involved in physical altercations with other students a number of times throughout your primary education.

56Immediately upon leaving school you started to work.  From the ages of 13 to 15, you worked doing concreting with a neighbour.  Since this time, and for varying periods, you have worked in numerous industries. You have worked as a bricklayer’s labourer, a carpenter’s labourer, a bookbinder in a factory and, in the nine months preceding your arrest and remand, as a removalist.

57You began using alcohol from the age of 13, as you were exposed to and had increased access to it through the work context and your association with older peers.   At the age of 17, daily drinking became a habit.   By the time of your current arrest, you were consuming more than a slab of beer each day.  You have also used illicit drugs in the past, notably ecstasy and amphetamines, which you acknowledge had a seriously negative impact on your mental health.  You managed to stop using methamphetamines following the birth of your son when you were aged 24.   

58You have had one significant intimate relationship, and that was with the victim in this matter, Jennifer Laurie.  The relationship commenced when you were around 22 and as already noted you have children with her, a son now aged 8, and your daughter aged 5.   Over the years the relationship has apparently been on and off, impacted by your substance, mental health and unpredictable and destructive behaviours. 

59In terms of your physical health, I note that at around the age of four, you were diagnosed with Type 1 diabetes and required daily insulin since.

60You have an extensive and relevant prior criminal history including for dishonesty and violence matters.  More recently on 1 June 2020 you were sentenced in this court, on charges including persistent contravention of family violence order, carjacking, intentionally cause injury, make threat to kill, damaging property and assault with weapon.  The victim in most of those matters was Ms Laurie.

61In sentencing you, I take into account your personal circumstances and the matters canvassed in the report of Mr Campbell.   

62Your counsel submits that in your case the Bugmy[16] principles are enlivened.  The High Court in Bugmy recognised that a deprived and disadvantaged background such as yours:

'may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending'.

[16] Bugmy v The Queen [2013] HCA 37

63Your Counsel submits that, given the circumstances of your background, it is perhaps not surprising that you became reliant on alcohol and drugs and in trouble with the law.  Your upbringing lacked any real family involvement. Your education was poor.  You were exposed to domestic violence from an early age.  Later, you were rejected by your father and experienced homelessness.  Mr Campbell assessed you against the Adverse Childhood Experiences Questionnaire and your score was found to be clinically significant, representing a higher-than-average amount of adverse childhood experiences.   Mr Campbell also opines that you appear ‘to have developed an insecure attachment style in response to [your] experiences in early childhood.  Attachment styles are patterns of interpersonal relationships that are established in early childhood and influence an individual's emotional and social interactions throughout life.’[17]   Your exposure to violence from a young age also ‘appears to have resulted in the development of belief systems which are supportive of the use of violence and aggression to resolve interpersonal conflict and problem solve, predisposing [you] to the development of violence-supporting attitudes and maladaptive behaviours later in life.’  Your diagnosis of ADHD at a young age, further predisposed you to maladaptive behaviours because these developmental issues appear to have impaired your ability to acquire and reinforce adaptive strategies to, in particular, manage distressing emotional experiences. 

[17] Report of psychologist Austin Cambell, dated 3 April 2024, paragraph 21

64I accept that the Bugmy principles, as advanced by your counsel, have application in your case in the general way. Though of course it doesn’t excuse your offending, however it must be given due weight in the sentencing calculus.[18]

[18] Marrah v The Queen [2014] VSCA 119 [16]

Psychological assessment

65As already noted, you report a history of poor mental health and some contact with services in the past.  You told Mr Campbell that you have attended mental health facilities at least four times throughout your life, due to deteriorations in your mental health and the presence of symptoms of psychosis.  These symptoms increased in the context of the use of illicit substances, alcohol and non-compliance with medication.  You state that at around the age of 19 you were diagnosed with schizophrenia and at around the age of 25 with depression.  You also spoke of being diagnosed with Borderline Personality Disorder (BPD) in the past but [were] unsure when this occurred.  Currently, you are prescribed Risperidone and Avanza and report positive effects. 

66Your counsel submits that even though your actions on the night of the offending were fuelled, at least in part, by your heavy self-induced intoxication, the Verdins principles have some application.  As stated by the Court of Appeal in Verdins, diagnostic labels should be treated as the beginning, not the end, of an inquiry.

‘The sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it - or is likely to affect him/her in the future'.[19]

[19] R v Verdins [2007] VSCA 102 [13]

67Mr Campbell administered a number of psychological assessments, which produced the following results:

(a)   Your scores on the tool measuring psychological distress were consistent with an individual experiencing moderate levels of depression and extremely severe levels of anxiety and stress. 

(b)   Your scores on the tool measuring the severity of borderline personality disorder fell in the high severity range, consistent with your disclosures during the interview.  It appears that you have developed disordered personality features which have resulted in the development of Borderline Personality Disorder (at [28]).  I note this is also consistent with the previous diagnosis of Dr Aaron Cunningham (referred to in the reasons for sentence of 1 June 2020) that you meet the diagnostic criteria for borderline personality disorder (at [41], [42]).

68Mr Campbell also confirmed that you suffer from Substance Use Disorder, which has persisted throughout your life. 

69At paragraph [28] Mr Campbell concludes:

‘Mr Blackwood’s offending behaviour in the current matter appears to have been precipitated by his functioning being impaired by underlying mental health issues and maladaptive behaviours.  Mr Blackwood’s relationship instability and emotional dysregulation appears to have been significantly impacted by features of borderline personality disorder, with him reacting aggressively to perceived rejection and abandonment from his family.  These issues also appear to have been exacerbated by psychosis-related symptoms that appeared elevated due to the impact of Mr Blackwood’s Substance Use Disorder on his functioning.’[20]  

[20] Ibid [28]

70All of these symptoms and issues are perpetuated by your lack of adaptive strategies for managing distress, negative attitudes to medication compliance and underlying belief systems that are supportive of violence as a problem-solving strategy.[21]

[21] Ibid [29]

71Overall, an assessment of your moral culpability for the offending is not straightforward.  I accept the unchallenged opinion of Mr Campbell that your offending behaviour was precipitated by functioning impaired by underlying poor mental health and maladaptive behaviours.  Your borderline personality features have significantly impacted your relationship instability and emotional dysregulation and you lack the adaptive strategies to manage or process distress or problem-solve. The persistent nature of your disordered personality features and reinforced maladaptive belief systems raises concerns and elevates the importance of community protection in your case. Returning to the Verdins principles, I accept that they have some application, as advanced by your counsel. However, given the nature and seriousness of your offending and your intoxication at the time, which exacerbated your symptoms and partly fuelled your aggression, I consider it only warrants a modest reduction in your moral culpability, particularly in circumstances where you seem to be alive to the negative impact of alcohol upon your behaviour.   Also, I do not consider that your mental health is such that either general or specific deterrence should be downplayed to any significant degree. 

Prospects of rehabilitation

72In the circumstances, it is difficult, Mr Blackwood, to view your prospects of rehabilitation as favourable.   As already noted, you have a relevant prior criminal history and have been sentenced now on several occasions for      violent offending, including for serious domestic violence.  Your prospects must be viewed as guarded and largely dependent on you abstaining from substances, including alcohol, complying with medication and engaging in targeted treatment. 

73In your assessment with Mr Campbell, you acknowledged the need to engage in treatment and a willingness to do so.  However, you appeared to lack insight into your ability to control your consumption of alcohol.  He considers you will benefit from engaging in alcohol and other drug specific treatment and he makes other targeted recommendations as to treatment.  This will obviously take an enormous commitment and resolve on your part, which, to date, you unfortunately have not demonstrated in the community. 

74I accept your counsel’s submission that there are ‘some (minor) beacons for hope’.  First, you express a desire to change your life trajectory.  Second, you          hope one day of developing  healthy relationships with your children. Third, you have a relatively good work history.  Fourth, you have made efforts on remand.  You have been in custody now since your arrest.  You are working as a food billet, engaging in educational courses and complying with psychiatric medication to which you seem to be responding well.  Also, you have pleaded guilty to the offences and assumed responsibility.

Sentencing purposes

75The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  I have already referred to the prominence of general deterrence in offending of this nature.  Further, specific deterrence and community protection must play a significant role in the sentencing synthesis, even when taking into account the mitigatory factors I have already referred to.

76I have had regard to the sentencing guidelines outlined in s5 of the Sentencing Act 1991, where relevant in your case. I have also taken into account the maximum penalties for each charge. I have also considered the landscape for sentencing in this offending, in particular for the charges of reckless cause injury and aggravated burglary. Current sentencing practices are to be considered but ultimately each case turns on its own facts and circumstances.[22] 

[22] Newton v The Queen [2021] VSCA 207

77There is no dispute between counsel that your offending warrants a term of imprisonment, structured by way of a total effective term.  I consider, Mr Blackwood, that this is the only just and appropriate sentence.   I sentence you on the basis that you may be required to serve every single day of the sentence I impose.  However, I do intend on imposing a non-parole period that will reflect the relevant sentencing principles and promote your rehabilitation, which in turn, also serves the community.

78The principle of totality is important in your case.  Your offending this night was largely continuous in nature and is capable of being seen as a ‘multi-faceted course of criminal conduct’.[23]  It was however also constituted by separate incidents and victims.   As the High Court stated in the case of Mill v the Queen:

‘the effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate".’[24]

[23] Bogdanovich v The Queen [2011] VSCA 388

[24] Mill v The Queen ([1988] HCA 70; (1988) 166 CLR 59

79In your case, this has required an adjustment and moderation of the orders for cumulation and concurrency.    

Sentence

80Synthesising all relevant matters, including the objective gravity of your offending and its impact, along with the mitigatory factors raised on your behalf including your plea of guilty, you are convicted and sentenced as follows:

81Charge 1, intentionally damage property, six months' imprisonment.

82Charge 2, recklessly cause injury, 18 months' imprisonment.

83Charge 3, make threat to inflict serious injury, nine months' imprisonment.

84Charge 4, recklessly cause injury, 17 months' imprisonment.

85Charge 5, intentionally damage property, six months' imprisonment.

86Charge 6, intentionally damage property, six months' imprisonment.

87Charge 7, aggravated burglary, three years and three months' imprisonment.

88Charge 8, common law assault, six months' imprisonment.

89The orders for cumulation are as follows:

90Charge 7, the aggravated burglary is the base sentence.  Charge 1, one month cumulative.  Charge 2, seven months' cumulative.  Charge 3, one month cumulative.  Charge 4, six months' cumulative.  Charge 6, one month cumulative.  Charge 8, one month cumulative.

91Counsel, that should arrive at a total effective term of four years and eight months' imprisonment.  Do you agree?

92MR TRIANDOS:  I agree, Your Honour.

93HER HONOUR:  All right.  The non-parole that I am setting is a period three years and three months. 

94I declare pursuant to s18 that you have served 531 days' imprisonment already.

95MR BARKER:   Thank you, Your Honour.

96HER HONOUR: I declare pursuant to s6AAA, that had you not entered a plea of guilty to these charges, I would have sentenced you to some six years and 10 months with a non-parole period of four years and 10 months. The disposal order from my recollection Mr Barker was not opposed. Correct?

97MR BARKER:  Definitely not, Your Honour.  Correct.

98HER HONOUR:  And the two compensation orders were not opposed.

99MR BARKER:  Correct, Your Honour.

100HER HONOUR:  I propose to make the disposal order and the compensation orders in the terms sought.