Director of Public Prosecutions v Blake (a pseudonym)

[2020] VCC 262

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHTON BLAKE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	12 March 2020
DATE OF SENTENCE:	12 March 2020
CASE MAY BE CITED AS:	DPP v Blake (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 262

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecution
For the Offender	Mr H. Moodie	Dribbin & Brown

HIS HONOUR:

1Ashton Blake[1], you have pleaded guilty to a charge that on 25 January 2019 you intentionally caused serious injury to the victim.

[1] A pseudonym

2On 14 January 2019 you were released from detention in a youth justice centre on youth parole.  You had been detained in the youth justice centre following sentences at the Children's Court in 2018.  I will more precisely deal with your prior criminal history shortly, but for present purposes what is important to understand is that when you committed this serious violent crime you were on conditional release into the community for less than two weeks.

3It was on 25 January 2019, 11 days after your release, that you travelled to Geelong from your mother's home in Wyndham Vale.  The great concern is that you took with you a knife that, given the injuries that you inflicted, was a viciously sharp and inherently dangerous weapon.  The fact that you armed yourself reveals your concerning focus on violent ways to negotiate simple aspects of life in the community, such as taking a trip on public transport to Geelong to see a friend.

4At approximately 2.20 on 25 January you arrived at Geelong station and then walked to the bus exchange on Moorabool Street, at the entrance there to the Market Square Shopping Centre.  As you stood at the bus stop you noticed the victim simply walking along Moorabool Street towards Malop Street – perhaps to go into the Market Square Shopping Centre.  You knew the victim from your time in the youth justice centre and had previous altercations with him.

5I have seen the chilling CCTV footage of what happened next.  The victim clearly had no idea you were in the vicinity.  He was simply walking on a main street in central Geelong, as were many other people on that day.

6Having seen the victim, you followed quickly - first walking then breaking into a jog.  You got your knife out and had it ready for the attack.  As you got to the victim you rapidly and viciously stabbed him in the groin area, and then again in the chest, and a third stabbing movement was fortunately blocked by the satchel the victim was carrying.  Having brutally stabbed the victim you quickly ran, leaving him bleeding profusely.  You took a complex escape route from the Geelong station back to the Lara station, and then from Lara immediately back to South Geelong and a taxi from there, it seems, to Whittington.  You were arrested the next day and have been held on remand in the youth justice centre since.

7What can be attributed to the sentence that I impose is 268 days of remand.

8Before outlining the extent of the injuries, I turn to your offending behaviour.  While this attack was not planned, it was a deliberate and repeated stabbing of an unsuspecting victim.  It seems, and concerningly, you had brought grievances from the youth justice centre out into the community and you were prepared to act on those grievances.  This attack had all the elements of what cowards do; that is, a vicious surprise attack on a defenceless victim with a deadly weapon followed by running away, leaving the victim bleeding and helpless.

9On any analysis this was a very serious example of the crime of intentionally causing serious injury.  The resort to the deadly knife, and all the circumstances, make that conclusion - that it is a serious example of this offence - unarguable.

10The consequences for the victim were life-threatening.  The stab wound to his groin area severed his femoral artery and vein and punctured his bladder.  The blood loss was significant.  Also, the stab wound to the chest caused damage to the intercostal artery, and thus internal bleeding.  The bleeding, and the loss of blood, led to a cardiac arrest and, consequently, to traumatic hypoxic brain injury.  The stab wound to the upper leg caused permanent nerve damage, which has left the victim with foot drop, and thus problems with his gait and balance.  The victim had to undergo a number of emergency surgeries to repair intraabdominal injuries, including to his small intestine, his bladder and the femoral artery, which required replacement with a graft.  It seems clear that but for the victim's proximity to a large hospital, able to quickly respond, the victim may well not have survived.

11The injuries were objectively very serious.  The consequences were described in the hospital discharge report as being a significant, lifelong disability.  In a report of 5 June 2019, approximately six months after, the specialist wrote the following, which was set out at paragraphs 18 and 19 of the prosecution opening.  Dr Rose stated:

'The victim will require ongoing specialist treatment, namely, (1), ongoing neurorehabilitation.  This is required after any traumatic brain injury, either from direct physical trauma or hypoxia.  The victim's mother stated the victim was very forgetful, short-tempered and often impulsive.  She was also concerned about his mental health.  (2), Ongoing physiotherapy.  Physical therapy for the victim's right foot drop, secondary to hypoxic brain injury.  Foot drop was still very evident at the most recent review five weeks after discharge.  (3), Ongoing dietician review due to the significant weight loss in hospital due to prolonged recovery and ongoing weight loss at home due to loss of appetite'.

12The report points out that the victim spent approximately four weeks in hospital following the incident.

13The victim himself has written of the traumatic impact of the injuries on his young life.  His victim impact statement sets out the following matters; that, as a consequence of the injuries, he cannot walk properly.

'I have a permanent limp from my leg injury and I cannot jump, play soccer or run without falling on my face.  I can no longer play soccer, which I enjoy as a social and physical outlet.  I no longer do any physical exercise.  I have lost friends because I no longer play soccer'.

14He goes on to talk about the difficulties in his family.  It has been difficult for his family because his mother has had to give him extra care and attention.  She speaks of this herself in her victim impact statement, which I will turn to shortly.

15He points out now that he is easily out of breath, which he believes is related to the injury, and he may have to undergo further medical investigation and possible treatment.  As to his mental health, he says:

'I feel sad and hopeless and very lonely, 'cause I don't leave the house much.  I'm worried that I will not get a job'.

16He says:

'I am really worried about my health and future, given the ongoing impact of my injuries.  I had a job, lots of friends, went out a lot and was enjoying life before the assault.  Now I no longer enjoy life because I can't do physical activity and enjoy those things I used to do'.

17His mother wrote in her victim impact statement of great shock and trauma going to the hospital and seeing the events unfold in those early hours.  She was told by the doctors that it was lucky that the victim was saved.  She was, at that time, in a state of shock and could not control herself.  Her difficulties with language made things more problematic for her, with children doing their best to interpret.  She said that when the victim came out of the coma after some weeks he had periods of agitation and times when he could not recognise her or the family, which was frightening, and she was worried about a brain injury and if he was going to recover – that is, her son was going to recover mentally.  She has had to care for him a great deal at home, which is difficult because of the victim's behaviour and memory issues.  It is also difficult because she has five children, but as the victim takes up so much of the time the other children get upset, as they feel neglected.  She speaks of the victim still needing help with things - particularly such basic things as putting on his shoes and socks because of his mobility.  She concludes:

'I am really worried and concerned for his future and job prospects because of his ongoing issues with mobility and memory and his breathing problems'.

18I take into account, as I must, those victim impact statements.  Having gone through the injuries, and the impact of them, I assure you, Mr Blake, that I have not let those matters swamp and overwhelm all other aspects.

19As well as the direct impact on the victim there are other broader considerations.  This was a brazen attack in the centre of Geelong in the middle of the day, with many ordinary folk on the streets, just enjoying themselves in the summer holiday period in the shopping centres.  Such a violent attack has a corrosive effect.  People become more and more fearful of random violence in the streets.  This diminishes the community's enjoyment of the city.  It diminishes the social and economic benefits that come with the vibrancy of a busy regional city.  Your crime, foremost, must be punished because of what you did to the victim and the ongoing impact on him and his family, but also, punishment is important so as proper social values are protected and restated.  Those values being that we are all entitled to feel safe in the streets of our community.  Those that attack or diminish our rightful sense of safety must be appropriately punished.

20Because of your youth your moral culpability is not seen as it would be if an adult perpetrated such a violent crime.  You reacted to seeing someone you had clashed with before and, without proper consideration, you stabbed him.  Generally young offenders have not developed the maturity to see consequences; even those that are obvious to an adult.  The young act impulsively.  Thus, while there can be no argument that your crime was objectively a serious example of the grave offence of intentionally causing serious injury, in my sentencing synthesis I apply moderation because your moral culpability must be seen as lower because of your youth.  You were 17 years old and because of that you were, at law, a child at the time.

21As to your personal circumstances what is inescapable, and ever important, is you were - as I have said, in the eyes of the law - a child when you committed this serious crime.  Though I will refer to other concerning aspects of your personal circumstances, I have never lost sight that you were a child when you offended.  However, as I have noted already, you were on parole at the time.

22You have a very troubling history of criminal behaviour.  You were first before the Children's Court at the age of 14 years and nine months.  To date you have been sentenced to two probation orders, three youth supervision orders and five youth justice centre orders.  You have been held on remand multiple times in the years 2016 to 2019.  The number of offences from that age of around 14 to 17 is well in excess of a hundred.  More importantly, many of the offences involve violence and weapons.  Concerningly, your violence continued even when you were on remand in the youth justice centre.  That violent propensity continued after your remand for this offence when you stabbed a custodial officer in the neck with a homemade knife that you had put together in the youth justice centre in October of 2019.

23The experienced youth justice centre worker, who prepared a pre-sentence report at my request, wrote the following.

'The writer had discussions with Ashton about his propensity to use violence while in custody; especially to the degree of stabbing a staff member in the neck while he was waiting sentence for a stabbing incident.  Ashton tended to justify his actions, clearly lacking insight to the difficult position he puts himself in when he has the propensity to use extreme violence as a problem-solving mechanism.  Ashton also appears to have a distorted mindset that he needs to use violence as a form of protection'.

24I make it clear that you are not to be repunished for your earlier crimes committed and dealt with by the Children's Court.  However, your regular resort to violent behaviour makes protection of the community from you ever more important.  The pre-sentence report sets it out this way:

'According to the youth justice file it is outlined Ashton has displayed behavioural problems from an early age, where he was reported to be the perpetrator of bullying within the primary school setting.  This violence has continued to evolve into adolescence and has now played out in criminal behaviour and is escalating in severity'.

25This matter was before the Children's Court but upon application, which was opposed, an experienced magistrate determined that this was a case that, under the provisions of our law recently, enacted the matter should be dealt with in the County Court, but, again, I stress that - notwithstanding that you are not in the Children's Court – that sentencing you as a child means I continue to give emphasis to your rehabilitation, as you may be, in the future, reclaimed.  That would be the best form of protection of the community.  It is, ultimately, in the community's interest that you do change your ways and reform.

26Despite your record and your grave crime on this occasion there are factors in your life that mean the prospects of reform are not entirely extinguished.  While at first blush your behaviour may bespeak of a family upbringing that was beset with dysfunction caused by adults with addictions or mental health problems, their own criminal propensities and general neglect and inadequacy, I emphasise that this is not at all your family life.  Your mother has, with great tenacity and love, provided you with support, come what may.

27The experienced psychiatrist, Dr Adam Deacon, saw you in June of 2016 at the request of the Royal Children's Hospital.  You said to him that your childhood was relatively happy, though your relationship with your father deteriorated in your adolescence.  You spoke well of your mother, though you thought her chronic fatigue syndrome – her illness – had kept her from caring from you.

28The author of the pre-sentence report wrote the following:

'Ashton is a young person who had reasonable family support in the community – predominantly his mother, who he is particularly close'.

29It goes on:

'Ashton's behavioural problems throughout childhood strained his parents relationship'.

30She points out that you had a long history with child protection and was subject to care by Secretary orders which expired on 18 November 2019.

'Child protection became involved due to Ashton engaging in high risk behaviours, offending and family violence.  Ashton has resided at out of home care and attempts to return him to his mother's care have been unsuccessful'.

31The picture painted is that your behaviours were the cause of you being placed in care by the Children's Court, but your mother, in particular, has stuck with you and provides you with support, which continues.  She sees you regularly now on remand.  You have a brother who you do not see but speak to on the phone.  Things have improved, or been up and down, with respect to your father.

32Your education has been very limited and most effective when you have been in youth detention.  You have never had employment.

33Dr Deacon wrote, in 2016, the following:

'Ashton's history can perhaps be best understood to reflect an underlying attachment problem combined with low self-esteem and poorly formed identity formation'.

34He went on:

'Ashton's emotional and behavioural problems stem from a relatively early childhood, although only demonstrably became serious since completion of primary school.  The early onset of problems may have related to his strong-willed temperament, combined with difficulties with his mother experienced in parenting, secondary to her debilitating chronic fatigue syndrome.  Ashton's father appears to have been relatively absent and unhelpful when present.  His father's tendency to belittle Ashton and provide negligible positive regard likely shaped his low self-worth'.

35He went on:

'Ashton initially ventured into offending behaviour through direct contact with similarly inclined peers.  He was initially anxious and cautious.  This was promptly quelled by perceived benefits including recognition, validation, attention, credibility and status.  Offending behaviour compensated for past gaps in his development.  He also financially benefitted and was able to purchase cannabis.  Cannabis has become a dependency over the last six months.  Ashton also enjoyed the risk and associated adrenaline response to escalating offending.  He became impervious to concerns regarding the unlawful nature of his behaviour and indifferent to the impact on victims.  Instead of it he adopted an insidiously engrained anti-social stance without care and consideration of others, including the effect on his family.  Crime became a passion and a source of identity.  During his multiple stints in youth justice he was further influenced by detained youths.  He has sadly learnt new techniques to engage in more serious crimes.  He also felt more comfortable in detention than the home environment, as it provided a cohesive peer group stimulation and challenge.  Detention has not deterred him from future offending'.

36Dr Deacon spoke of your moral compass having been unfortunately markedly skewed over the last two years – that is, in his report in 2016.

37In his more recent report in 2019, from his attendance upon you once you were on remand for these matters, Dr Deacon wrote the following:

'Ashton's prognosis and prospects are unclear, but his history is remarkably dysfunctional for such a young person and this alone signals a very bleak future.  Unless he can actively engage with professionals who can assist him in managing his engrained anger issues and anti-social tendencies he'll pose a high-risk of further violent offending.  Previous risk assessment has shown he is at very high-risk of recidivism'.

38Unlike many you have never moved, it seems, from cannabis use to other drugs, such as methamphetamines or heroin.  You have, in the recent past, reported hearing voices and have been treated by the expert youth mental health professionals at Orygen Youth Health.  You have, however, said to
Dr Deacon – again, in recent times – the following:

'Ashton has been working with a psychologist at Malmsbury Youth Justice to address his anger problems, but he then noted that psychological interventions had never been helpful and he considered it futile.  Ashton was adamant that psychological interventions – whether individual or group – were unhelpful.  He said he was only able to stop offending if he decided to and this needed to be driven independently, rather than through the assistance of professionals.  He didn't think he could be guided, influenced or assisted.  He said he needed to change his mindset.  When further explored he clarified that he needed to choose to refrain from endorsing violence as a means of managing situations.  He thought he was capable of committing such a monumental change'.

39However, in a supplementary report dated 22 October 2019 – the earlier report being 1 October 2019 – Dr Deacon said that he had spoken to the treating psychiatrist at Malmsbury, Dr James Gallagher, and he outlined aspects that flowed from that discussion.  He said that you were referred to Orygen Youth Health in December 2017 in the context of experiences suggestive of attenuated psychotic symptoms.  You reported hearing non-specific whispering and feeling a presence in the room and you reported an interest in ghosts and cults.  You were prescribed a low dose of anti-psychotic medication Seroquel.  The provisional diagnosis was a first episode of psychosis and conduct disorder and you were case managed until 2018.

40It went on that since you were incarcerated in December 2018 you were then released from custody and were referred to Orygen Youth Health in January of 2019, while you were on parole.  You were assessed during that time on
15 January 2019 and deemed to be mentally stable and psychotic.  You were to see your case manager in February 2019 but you were incarcerated for these offences in the meantime.  You were on an anti-psychotic medication - counsel advised that you did not take that medication on the day, but rather took a prescription drug Xanax, which had a detrimental effect upon you as you headed off to Geelong.

41Dr Deacon went on and said:

'Dr James Gallagher has considered three possible diagnostic formulations.  (1), A psychotic disorder in evolution over the last few years, but unusually not fully evolved into a clearly defined psychotic disorder consistent with schizophrenia.  Ashton has notably not presented as thought-disordered or delusional.  His personality function has been preserved'.

42The second possible diagnosis was a complex trauma related presentation marked by hypervigilance and broad mistrust with associated mild psychotic symptoms when stressed.  There have been some suggestions that you have experienced post-traumatic stress disorder symptoms related to past assaults, and (3), a personality disorder marked by paranoia and anti-social elements.  Dr Gallagher has recently increased your anti-psychotic medication to a dose of 550 milligrams to determine how you respond to a therapeutic dose.  There have not been, it seems, demonstrable changes, and you may be considered for a trial of different anti-psychotic and anti-depression medication.

43I have received, this morning, a report or letter from the senior mental health clinician, Ms Payne, at Orygen Health.  She indicated that in recent times you have engaged with your forensic youth mental health service provider, that you have been diagnosed with an enduring mental disorder which is currently assertively treated, you attend all your appointments while in custody and you are curious and motivated to learn, despite clear difficulties with your rigid and fixated thinking and persecutory beliefs.  You had a goal to try and manage your anger; that was the priority.

44These psychiatric matters are important considerations but it was, as I understood it, not squarely put that you have an impaired mental functioning, though that matter as to diagnosis is not a deep concern of mine in the criminal justice setting.  Rather, I take into account that your mental health is fragile and you do need help, despite what you said to Dr Deacon, and that seems to be where things are heading at the moment.

45I read your own letter, which was tendered on your plea, in which you spoke yourself of being at the crossroads – a term used earlier in 2016 by Dr Deacon.  You think that you will be more likely to rehabilitate in the youth justice centre and that there would be risks for violent reactions and behaviours if you were sentenced to an adult gaol.  You have, as the report outlines, spoken of realising that you become angry and react violently, and that you could and would reverse that.  Obviously that has not occurred and I am highly cautious as to your expressions of realising that now is the time to reform and a sentence to a youth justice centre will more likely see this happen.

46Overall, I am very guarded as to your prospects of reform.  Your engrained anti-social behaviours indicate a grim future.  Nonetheless, the central question is identified by your counsel's insightful and helpful plea; whether the inevitable custodial sentence ought be again in the youth justice centre, or whether in an adult gaol.

47The pre-sentence report is quoted extensively by me thus far. It considers the questions that I must weigh up, as set out in s.32 of the Sentencing Act, which relevantly reads:

'If a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order if it has received a pre-sentence report and, (a), it believes there are reasonable prospects for the rehabilitation of the young offender, or, (b), it believes that the young offender is particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison'.

48I am firmly of the view that a sentence involving confinement is well-justified.  No one argued otherwise.  Thus, I may make a youth justice centre order if, having received the pre-sentence report – which I have – and then I, (1), believe there are reasonable prospects for rehabilitation of you as the young offender.  As to any belief as to whether you have reasonable prospects for rehabilitation, I must firmly say, as I have thus far, that I consider your prospects of rehabilitation as far from reasonable.

49Realistically assessed, my view is your prospects for rehabilitation are grim.  As to my belief as to whether you are impressionable, immature, or likely to be subjected to undesirable influences in the adult prison, I am of the view that you are institutionalised already; a matter that you agreed with Dr Deacon when it was raised with you in your interviews with him.  You are institutionalised within the custodial setting of the youth justice centre.

50I am of the view that you are, to a degree, immature, and that adult gaol, to a degree, may expose you to undesirable influences.  I am uncertain as to whether you are impressionable, but it seems, from all that is set out, that this is something that bedevils you.  You are impressionable as to other undesirable influences, but as I say, my belief is not to a level that I consider that your confinement could only be appropriate or justified if the confinement was in a youth justice centre.

51The report writer emphasised that you were a risk to the safety of staff and other detainees.  It was that matter that had led the report writer to the conclusion that you were not suitable for youth justice detention.

52Your counsel submitted that the criteria of risk to the safety of others in the youth justice centre was not relevant or decisive in my considerations. In my view I must follow the words of the statute. However, as indicated, I do not consider on the basis of s.32(1)(a) - or, importantly, s.32(1)(b) - that youth justice centre, and that alone, is the appropriate disposition.

53Given the seriousness of the crime and your grim prospects for rehabilitation, I am led to the grave conclusion that only a gaol sentence can meet the circumstances of this crime and you as the offender.  In my view the head sentence, or period of confinement, must exceed the maximum that is allowed for as a period of detention in a youth justice centre if imposed by the County Court.

54As required, I have applied the concept and principle of instinctive synthesis, ensuring that the circumstances of this grave offence, and your personal circumstances, have been properly considered.  Thus, in your particular case, given your age – 17 at the time, now 18 – I have endeavoured to ensure that within individualised sentencing I have given emphasis to the words of the Court of Appeal, as expressed in the case of CNK, that as far as possible the sentence is one that fits you as the young offender as much as, or perhaps even more than it fits the crime.  Just as I have said more than once, I have not been overwhelmed or swamped by the seriousness of the crime or the injury that you inflicted.

55While this may be hard for you to see, Mr Blake, I can confidently say that but for your very young age the sentence that I would have imposed would have been much longer than the one I am about to announce – likely double.  I have given you the added benefit of an early plea of guilty.  That is an expression by you of taking responsibility and remorse in that sense, but there is nothing else to evidence empathy or sympathy for the victim and his difficult plight.

56I have considered afresh and applied all the important principles of sentencing young offenders as articulated by the Court of Appeal over the years, but especially in the case of Azzopardi and others.  I say 'especially' because Azzopardi was also a young man – 19 at the time of the offending – with prior convictions who committed a violent offence, including intentionally causing serious injury, amongst many others.

57I have considered the authorities cited by your counsel on the sentencing of children by the adult courts – cases such as Webster.

58I have set a head sentence mindful that you, as a young man, may have to do every day of this head sentence.  I have allowed for a significant period of potential parole so that, if granted, you will be supervised on parole for potentially a lengthy period – longer than might be the case with older offenders.  This is to be achieved by a lower minimum term, which is hopefully both establishing conditions to facilitate your reform, a statutory requirement under the Act, and also showing an appropriate degree of mercy that the law has immemorially shown to the young.  The sentence is, in my view, no more, nor no less, than is just and appropriate for this dreadful crime committed by you as a 17 year old.

59For committing the crime of intentionally causing serious injury you are sentenced to be imprisoned for six years and I fix a minimum non-parole period of three years and four months.

60You have already served 268 days on remand that has been reckoned as part of the sentence that I have just imposed, so I declare that your 268 days is part of the sentence that I have just imposed.

61Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of eight years with a minimum of five.  Is there any other orders required?

62MR BROWN:  No, Your Honour.

63HIS HONOUR:  Thank you.

64MR BROWN:  Your Honour pleases.

65HIS HONOUR:  Mr Blake can be taken now.  He'll be taken downstairs.  The prison – or the Corrections police authorities here - will transfer him to adult custody.  If the Adult Parole Board needs to consider his – where he's to be placed – that's a matter for the Adult Parole Board.  That provision is still available under the Act, Mr Moodie?

66MR MOODIE:  Yes, Your Honour.

67HIS HONOUR:  Yes.  Well, perhaps you could draw it to their attention, thank you.  Thank you, Mr Blake can be taken.  I thank counsel for their very considerable assistance - counsel appeared on the pleas on different occasions.  I'll just stand down before the next matter.

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