Director of Public Prosecutions v Bland
[2023] VCC 1660
•13 September 2023
*
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02166
Indictment No.M10029775.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN BLAND |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 13 September 2023 | |
DATE OF SENTENCE: | 13 September 2023 | |
CASE MAY BE CITED AS: | DPP v BLAND | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1660 | |
REASONS FOR SENTENCE
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Catchwords: Recklessly Causing Serious Injury. Lengthy prior criminal history. Early plea given circumstances of resolution and more serious charge which did not proceed.- Worboyes v The Queen [2021] VSCA 169. Bugmy v The Queen [2013] HCA 37; 249 CLR 571. Serious attack with knife, Life threatening injuries with sizeable impact.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Wallwork | Office of Public Prosecutions |
| For the Accused | Mr D. McGlone | Leanne Warren & Associates |
HIS HONOUR:
1 Kevin Bland you were arraigned on a short form basis in front of another Judge on 30 May 2023 and pleaded guilty to a single charge of recklessly causing serious injury. The matter was adjourned to Monday of last week (4 September 2023) for the arraignment process to be finalised and for the plea then to proceed. That is what happened last Monday and it went off to today's date owing to an issue arising as to the impact of your crime.
2 The maximum penalty for recklessly causing serious injury is 15 years' imprisonment.
3 You are now 41 years of age and have admitted a lengthy prior criminal history of some relevance to my task.
Facts
4 On Monday of last week, the prosecutor Mr Wallwork opened the matter to the court by reading the written summary of prosecution opening for the plea dated 1 September 2023.
5 That document was marked as Exhibit A on the plea.
6 Mr McGlone who appeared for you and appears again today, told me that this was an agreed summary.
7 I see no point then in restating all of the agreed facts in these my reasons. I will provide only a brief summary of your offending so that anyone who happens to access these reasons will have a better and clearer understanding of the serious nature of your crime and hence the reasons for my ultimate sentence.
8 That agreed summary discloses that on 31 December 2020, you and some others were at a kind of informal New Years' Eve gathering at a unit in Chadstone. The event ran from the afternoon into the evening. Alcohol was being consumed by all and sundry. No doubt, too much alcohol. The gathering was at the Amaroo Street Chadstone unit of a man named Stephen Macdonald. You were a long-term friend of Mr Macdonald. Another of his friends was the ultimate victim, 26 year old Mr Ujum Riam. You and Mr Riam knew each other through that mutual friendship with Mr Macdonald. You and Mr Riam were friendly, though you certainly disguised that very well on this night.
9 There was, in the course of the evening, an argument or disagreement between Mr Macdonald and Mr Riam. There is no real clarity as what provoked the disagreement. Whether it was Mr Riam drinking someone else's alcohol or him promising to play with some children in the park and reneging on that promise, who cares? The fact is neither were matters of any great note and neither seemingly had anything at all to do with you. The upshot was that Mr Macdonald asked the victim to leave the house. Mr Riam was in the act of gathering up his things when you quite unnecessarily involved yourself. Unnecessarily, as it was not even your house and Mr Macdonald had made the request and the victim was acting on it. For no good reason, you sought to involve yourself in what became then an extraordinary escalation.
10 For you approached the victim and aggressively insisted that he leave and then you pushed him out of the house. Well, he was then out of the property. You then followed him and the CCTV footage referred to captured you punching him to the face multiple times causing him to stumble backwards. You then continued to assault him out on the footpath and then used a knife that you were, by that point carrying to stab him once to the left upper thigh and twice to the abdomen. It seems there was also a wound or at least some form of injury to the right arm.
11 He collapsed to the ground. You ran back inside, announced that you had stabbed him two or three times and then you went about hiding the knife.
12 Mr McGlone argued that I could not find that you were using a knife that you had been carrying prior to your arrival at the unit. That I could not exclude that it might have actually come from the unit itself. That it would be in any way mitigatory that you had collected it from the unit before exiting in the setting is a strange notion. I do not think it would actually be an aggravating feature if you had been carrying it earlier in the night and happened to have it on you at the time of these events. After all, no one is suggesting that you went to the premises on the day intending to stab anyone. Mr McGlone was urging me to find that you had gathered up the knife from the unit prior to leaving. I seriously doubt that this would be a mitigatory finding at all. That would speak of a decision being made by you to arm yourself with that weapon immediately prior to the event. It seems to me on reflection that that might even be an aggravating feature, if it was contrasted with someone just reaching in the moment for a weapon that they happened to be carrying. In the end though, it really does not matter. Before me, there is no evidence one way or the other as to where the knife came from and when you first possessed it. I do not know where the knife came from, and it does not matter one jot, for you had it and you used it out on the footpath. That is all that actually matters here.
13 Police arrived swiftly enough and had they not done so, Mr Riam would likely have died on the footpath where you had left him. That is the reality, for your stab to the upper thigh lacerated his femoral artery, nerve and vein. That sort of injury causes large and rapid blood loss and death. The police who arrived at 8.54 pm resuscitated your victim, who by then, had stopped breathing. They had to perform CPR. The ambulance arrived. He was rushed to the Alfred Hospital, where further urgent steps were taken to try to save his life. The written summary at paragraph 16 sets out the injuries. There is more detail in the Victorian Institute of Forensic Medicine report from Dr Sungaila at p116.1 of the depositions as to the injuries and the treatment received. That document was discussed in the course of the plea as it contained far more detail than in the abbreviated description in the summary. So too the fact of CPR being performed by the first members attending.
14 It was not just death by blood loss which was avoided by a whisker. His small bowel had been punctured by two penetrating wounds and an emergency laparotomy discovered large amounts of blood and faecal matter in his abdominal cavity. He had no recordable blood pressure when he was received at hospital. He received what was an urgent massive blood and fluid transfusion. Without urgent intervention, this man would have died.
15 He underwent further surgeries including another 're-look' laparotomy and he was in hospital until he was discharged on 30 January. In that period, he developed a blood clot in his lower leg.
16 The case against you was an overwhelming one with fingerprint evidence, DNA evidence and personal identification by people familiar with you, including one person detailing the admission that you made to having stabbed the victim. There was also the CCTV footage
17 You made a no comment interview on 5 January, as was your right.
18 You have been in custody since your arrest.
19 The matter resolved on or around 22 May 2023 and you were arraigned on 30 May and pleaded guilty. You had however, been prepared to plead guilty to this charge for a very decent period prior to then. I will say more about that when I come to discuss the stage of the plea.
20 So much then for what is really only a summary of the summary. I will sentence pursuant to the more detailed agreed statement which, as I say, was marked as Exhibit A on the plea. I will also act on the statement from the doctor at the Victorian Institute of Forensic Medicine which goes into greater detail as to the injuries and the dangerousness of them. There are also the various photographs within the depositional material, including one of the fileting knife which you used to inflict these wounds.
21 This was a really serious crime that you committed.
Victim impact material
22 For whatever reason, the victim had at the time of the plea last week, not made an impact statement. That, of course, was his right. However, in the course of the opening, the prosecutor, Mr Wallwork, placed before me detail as to a conversation held in May of this year between his instructor and the victim, where the victim advised that he could no longer work or play any sport. That seemed to me to be a matter of some significance given we are over 2 and a half years down the track from the offence date, and so I asked Mr McGlone if he was prepared to have me act on material offered up in such an informal sort of fashion. He was not, and hence the matter went off to today's date so that a victim impact statement could be obtained. An impact statement has now been obtained. It is dated 7 September. It has been read aloud by the prosecutor and marked as Exhibit B on the plea. There is no challenge taken by Mr McGlone to any of the aspects of the impact statement or the impact in this case.
23 One would hardly need an impact statement to know how devastating this event was, at least in the short term. You almost killed this man. He spent about a month in hospital with multiple surgeries and was very lucky to survive. However, the impact statement now before makes clear how significant and large the ongoing impact has been. It confirms and indeed expands upon what I was told informally the other day; that this man has been unable to work or play sport since this event befell him. His quality of life has reduced very significantly indeed. He relies upon Centrelink benefits. He has sizable scarring both physically and emotionally. He has a host of ongoing physical issues including ongoing pain and nerve damage and has to manage that pain. He feels far less secure in himself with descriptions of anxiety and hypervigilance. He has trust issues. He has trouble sleeping. Though he was lucky to survive, he has regrettably been left with very large ongoing impacts which are likely to persist. He concludes his statement by expressing his forgiveness. It is an extraordinary statement really made by this man, setting out all these impacts and concluding in these terms: 'Due to God giving me a second chance, I have forgiven Kevin for what he has done'.
24 Your crime has had and will continue to have a very large impact indeed on this man.
25 I am required to take into account the impact.
In mitigation
26 I turn now to consider the plea in mitigation conducted on your behalf by Mr McGlone. He relied upon written plea submissions dated 30 August as well as a report from Dr Jacques Claassen, a forensic psychiatrist.
27 Mr McGlone, mainly by reference to the expert report, placed before the Court information as to your family and educational background and also your prior criminal and drug use history.
28 He made some submissions about the objective gravity of the offence and your prospects of rehabilitation.
29 In the plea in mitigation conducted on your behalf, he relied chiefly upon the following matters in mitigation:
· Your early guilty plea in the course of the global pandemic;
· The presence of some remorse;
· Your disadvantaged background; (Bugmy[1])
[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 571
· The application of 4 principles from the case of Verdins[2] (limbs 1,3,4 and 5)
[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
· Some increased burden arising from the Prison Authorities' response to COVID-19 in your case;
He conceded the high seriousness of the offence and that a prison term with a non-parole period was required in this case.
Prosecution
30 The prosecutor Mr Wallwork made some detailed oral sentencing submissions on behalf of the Director of Public Prosecutions spelling out the high-level seriousness of this example of recklessly causing serious injury. A knife was employed in a stabbing on a public street. The disagreement between Mr Macdonald and Mr Riam was not even one involving you and yet you sought to involve yourself in it and escalated it in the way that you did. The prosecutor said you then used a knife to inflict multiple stab wounds to the areas of the body identified. These were life threatening, life altering injuries. There was resuscitation required and then intubation, and multiple surgeries. The Crown challenged the application of any of the principles from Verdins and expressed some reservations as to what could really be drawn from the expert report of Dr Claassen. You had not even been diagnosed as suffering from a personality disorder of any description. You only had features present of a borderline or antisocial personality disorder. They submitted that the report was commissioned for a totally different purpose being the impact of a change of medication when voluntariness was being explored and it was speculative in providing any link between any actual mental health condition and the offending, given that drug use and alcohol use were very much to the fore in this case. The Crown argued that one could only be guarded as to your prospects of rehabilitation. The Director of Public Prosecutions, through Mr Wallwork, was calling for a head sentence with a non-parole period, but so much had already been readily conceded by your own counsel.
Background
31 I will turn to these matters shortly but firstly I will set out some bare detail as to your background. I have no reason not to act on what I have been told and I see no need to set it all out in my reasons, which will be long enough as is.
32 You are 41 years of age born in June 1982. Your parents separated soon after your birth. You were placed into the care of the State from the age of two and sadly, as was often enough the case, that care proved to be totally deficient, with some very serious issues arising in foster care. Down the track, you returned to your father, this is when you were about 11 years of age, but that was problematic as your father had serious issues with alcohol. That relationship broke down and you moved in with your aunt at one point. In that earlier phase of your life in foster care, you suffered emotional, physical and sexual abuse. I do not see the need to set out the details. As I say, I act on the background placed before me.
33 Unsurprisingly, you had fragmented education and you left school at 15 or so. Drugs were a problem from very early on and that then coincided with the commencement of a long criminal history. Obviously, I am not privy to the Children's Court history. There have though been some gaps in your adult offending. I was told that that was explained by your breaking away from some of your negative peers and establishing a pretty quiet existence from about 2013 with only a single Court appearance in 2019. I was told that COVID-19 and the response to the virus deeply affected you and you then reengaged with people you had previously thought better to avoid and you drifted back into drug use and alcohol use. There were also a few sad events with your dogs that played on your mind including, as I understand it, the death of one of those pets.
34 I mentioned your father and his issues with alcohol. He is now in a nursing home with, it would seem, alcohol dementia. You have some contact with your sister. You have lost your Ministry of Housing unit but I was told by Mr McGlone that you are confident you will succeed in getting a new unit in due course as you were regarded as an excellent long term renter. I have not mentioned anything about employment in the past. It is a long time since you have held any paid employment. You did intermittent work in the food handling area. You have been on a disability support benefit for many years. Mr McGlone told me that you had been living a quite isolated existence and that in custody you do not receive visitors. That is in some ways by way of choice. Your father is not in a position to visit you and you prefer not to be visited and to be isolated to some extent. You have been doing a number of courses and programs as I understand it.
35 You have a lengthy prior criminal history with some matters of obvious relevance. I will not set out all the detail within that history. There is a bit of duplication given the existence of appeals from the Magistrates Court to this Court and instances of either breaches or variations of community corrections orders that have been imposed. The history is available for all to see, so again I see no need to set it all out. There is offending dealt with in the adult Courts going back to 1999. There is a mixed bag of offences in that lengthy criminal history. Dishonesty offending, traffic offending, some violence and weapons offences though nothing as serious as this current offence. There are some threats and also some drug offences. There was a robbery and intentionally causing injury dealt with back in 2001. You have received many community corrections orders and it would seem have generally not complied with them though I was told that you got something out of a number of those orders. You have been either detained or imprisoned on multiple occasions including I believe on one occasion with a non-parole period.
36 I want to make very clear that you do not fall to be sentenced a second time for any of these past matters. You received those past sentences and served them. Those matters do not aggravate the matter that I am dealing with. However, I do have to make judgements about the risk of reoffence, your prospects of rehabilitation and the extent of the need to deter you and to protect the community from you. I must try to deter you and community protection is a matter which obviously looms large here given the serious nature of this offence.
Guilty plea
37 I turn to the matters that have been raised on your behalf. The first of those is your guilty plea. You have taken responsibility for your crimes by pleading guilty at what I will treat as the earliest stage. That is because though the matter settled only in May of this year, there had been indications that you were prepared to plead to the charge of recklessly causing serious injury going right back to before the committal. The offers had been made by you and rejected by the Prosecution. Ultimately, for whatever reason, the Crown changed tack and accepted your offer. So I will not treat it as a late plea at all. Indeed, I will treat it as a plea made at the earliest opportunity.
38 Though it was your right to run a contested committal, I cannot really fathom why anyone thought it appropriate to conduct one in this case back in October 2021, where regrettably, the victim was rather aimlessly cross examined. That was not by Mr McGlone, I should hasten to add. That is what happened and he was cross examined with suggestions being made as to him having some role to play in this event, even with hints of self-defence being floated around. Further there was quite a strange, if not bizarre defence response filed in May 2022 denying that you were acting voluntarily. Well, that has been filed on your behalf, but all those things occurred in a setting where there was the more serious charge of intentionally causing serious injury and always a willingness on your behalf to plead to that charge of recklessly causing serious injury. So I do not let any of these matters obscure the fact of the earliness of the plea. It was your right to take the matter to trial in relation to intentionally causing serious injury and all those steps taken along the way cannot now be held against you given your early offer to plead to recklessly causing serious injury and the fact that ultimately of course, that offer has at long last been accepted. If I might observe, if it was going to be accepted, it is a shame it was not accepted a long time ago.
39 As a result of your early plea of guilty, the time, the cost and the effort of a trial up in this Court has been avoided. Witnesses have not been required to give evidence in this Court. All have been spared that experience by your stance in pleading guilty.
40 You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
41 Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[3] A large backlog of cases arose in the course of the global pandemic and it still exists despite the fact that we have sailed out of the pandemic. The backlog remains and owing to the way that this case has been settled, your case must be treated as never having added to that backlog. I take these various matters into account in mitigation.
Remorse
[3]Worboyes v The Queen [2021] VSCA 169
42 I turn to the aspect of remorse and set out my conclusions quite briefly. Your counsel argued that I could find the presence of some remorse as implied from your guilty plea as well as in some statements that you made to Dr Claassen. I accept that submission and I do find the presence of some remorse here and I take that into account in your favour.
Bugmy
43 I have set out some detail as to your background but by no means all of the detail available to me in the report of Dr Claassen. I take into account what I judge to be your disadvantaged background.
44 An offender’s circumstances and their experience during their childhood and their formative years must be considered in the sentencing task, not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. We understand that these things leave their mark and they are likely to have profound and lasting consequences. Taking lifelong damage that is the result of childhood exposure to violence, or abuse, or neglect into account when sentencing is really just the mark of a humane society. It is also relevant in applying the fundamental principles and the sentencing purposes. It seems to me that you had a very poor start in life; abandoned by your mother, taken into care by the State and then abused in that setting in the very serious manner described. There was dysfunction and fragmented schooling. It is hardly surprising that you used drugs early on in your life or took to crime at a young age or lost your way in life. With that sort of unenviable start, there really can be no surprise that there has been a faltering trajectory in your life ever since. You really were deprived of positive role models in your developmental years. That start in life did not prepare you well for life that lay ahead and it is deserving of some recognition. I am prepared to accept that the Bugmy principles have application in the general sense, not the specific sense that has been mentioned in the more recent cases of Herrmann[4], Sabbatucci[5] and Newton[6].
[4]DPP v Herrmann [2021] VSCA 160
[5]Sabbatucci v The Queen [2021] VSCA 340; 98 MVR 256
[6]Newton (a pseudonym) v The King [2023] VSCA 22
45 It is clear then that there is some reduction in your culpability and that the retributive aspects of sentencing are, to an extent, moderated.
Verdins
46 Your counsel argued that limbs 1, 3, 4 and 5 from the case of Verdins were enlivened here. None of these things had been in any way flagged in the written submissions filed before me, which was quite unsatisfactory. In any event, Mr McGlone relied upon the report of Dr Claassen. That report was commissioned prior to the resolution of the matter, to explore the effect of medication going to matters of mental functioning including voluntariness and capacity, as well as the possible impact of a change in your medication. See paragraph 3 of the report. Mr McGlone relied upon the opinion as to the existence of a persistent depressive disorder as well as what he said was the diagnosis of a borderline and antisocial personality disorder. I reminded Mr McGlone that the report did not spell out any such diagnosis of a personality disorder. There were features of the disorder. That was all. I tried to understand in the course of the plea how these things were said to have any causative link or realistic connection to your offending. Though no causal link is required, there has to at least be a realistic connection. The argument was that you had voluntarily gone off your long-term medication of Mirtazapine from about late 2018. That you experienced a deterioration in your mental health such that you visited the clinic on 16 November 2020 (the report inaccurately states 2023 but I think it is accepted that that must be a typographical error). That you were prescribed a new anti-depressant, Luvox, on that date. I note there were further telehealth consultations mentioned. See paragraph 77. There is no detail available as to those consultations or what took place.
47 The argument is that you were in a dark place, depressed, struggling with the festive season and the loss of a beloved pet and not feeling your usual self and that you felt that the new antidepressant was not doing the job and that you experienced online conflict with others. You told the expert that you were smoking ice nearly daily and ‘drinking heaps’ in the lead into the offending. You told him that you could not remember what had happened on this night as you were pretty drunk. See paragraph 79. Dr Claassen says that it appears likely that you experienced a relapse of your existing persistent depressive disorder in the months leading up to the offence. That you increased illegal drug use leading into the obtaining of the new medication. Dr Claassen makes it clear that it is difficult to confidently conclude the exact impact of the medication going to matters of mental functioning, capacity and voluntariness, given your account of concurrent illicit substance and alcohol consumption at the time of the alleged offending. He noted your report that you had used alcohol and ice prior to the offending. He spelt out that the combination of ice and the antidepressant is a dangerous one. He says that the combined effect of the medication with ice and alcohol would have caused you to experience worsened anxiety, agitation, restlessness and possible perceptual disturbances such as hallucinations. He went on to say that in this heightened state, you would have demonstrated impairment in mental functioning by virtue of reduced insight and judgement into your own actions in response to others and/or circumstances around you.
48 Well, there is no evidence at all that you were hallucinating or having any perceptual disturbance. He seems to be speaking mainly of the impacts of your prescribed medication and the interaction with other drugs and alcohol and not any reduced or compromised state arising from your actual depressive disorder.
49 Upon stabbing this man, you turned around and went back into the house and set about hiding the knife.
50 How much of this conduct on this evening can even be put down to the mental health condition? How much to the new medication? It is impossible to know. In so far as the final 3 paragraphs of the report are relied upon, well it is in the realms of speculation it seems to me as to what role the mental health issue actually had, or the medication. You are not even diagnosed as suffering from the personality disorder, which was being relied upon to a degree by Mr McGlone. Secondly, the depressive disorder is one where you had chosen to take yourself off your prescribed medication and then chose to use illegal drugs and alcohol instead. What role did your mental health condition actually have in this offending? What role the new medication? What role the effect of illegal drugs and alcohol, either in combination with the medication, or even quite aside from that? I have no idea. I am meant to engage in a rigorous examination when considering these Verdins submissions.
51 I am not satisfied on the balance of probabilities that there is any realistic connection between any mental health conditions and the offending. It could easily all be put down to disinhibition brought about by drug use and alcohol consumption. There is in my judgment no reduction in culpability on a Verdins basis in this case. Nor is there any basis to reduce the weight to be given to specific or general deterrence. The reliance on the 5th limb of that case was quite puzzling. There was simply nothing in that report or elsewhere in the materials spelling out any increased custodial burden posed by your mental health conditions. You were stable and seemingly doing well in custody such that the expert said that your depressive disorder was in remission. Ultimately in my judgment, there was nothing at all in the Verdins arguments. That is not to say however that I ignore the report. I do not. Or the issues that you have had with your mental health, I do not ignore those either. I take these things into account in a general fashion, just not in a Verdins fashion.
Rehabilitation
52 Let me turn to your prospects of rehabilitation. You have pleaded guilty at what I will treat as the earliest stage. You seemingly have no real support available from family. You have no job prospects to speak of that I am aware of. Your long-term addiction to illegal drugs casts something of a large shadow over your future prospects. You have a lengthy prior criminal history and you have not complied with a number of court orders in the past. You continued to offend in the past, notwithstanding that you have seen the inside of a prison. There are however some decent gaps in that offending particularly from 2013, and that suggests to me that you do have some ability to take stock and to reform. I was told that you have been doing some courses and programs whilst in custody.
53 Regrettably, you have committed the most serious offence of your career in committing this instance of recklessly causing serious injury. It involves a sizable escalation of offending. You will be deterred, to some extent, by the time in prison that you have already served, and by the time that lies ahead in a prison setting.
54 I have no reason to be particularly optimistic in this case. You do not have youth on your side, as some do. This crime was really serious. You were a mature man using a weapon to inflict really serious injury on a friend. I can really only be quite guarded about your future prospects but having said that, I certainly will not write you off. I do find that you have some prospects of rehabilitation and if you can abstain from illegal drug use in the future, those prospects would no doubt improve very significantly. If you cannot, then of course those prospects would be very much reduced.
COVID-19
55 Your counsel placed no strong reliance on the impact of COVID-19 virus upon your burden as a prisoner. He only made a brief submission to me on this score after I raised it with him once his plea had been pretty much concluded. You have been in custody since January 2021 and that is why I raised it lest the issue had been overlooked. So you have been held during a period where, on occasion, there were restrictions arising from the pandemic. Such as, the absence of visits and also the limitation to the full range of courses and programmes and sometimes greater periods spent within a cell. I do take that into account as representing an increase in your burden. Things looked up significantly in March of last year when most of the onerous restrictions were phased out. Visits resumed from about March of last year, though as I said earlier in these reasons, you choose for whatever reason, not to have visitors.
56 Since then, you have probably been exposed to some lock downs, that is not a matter of any great weight at all.
57 As to what lies ahead in the future on the pandemic front for prisoners, that is impossible for me to know. I am not here to guess about that. I suppose there might be the odd quarantine but who really knows? It is impossible to know if there will be any ongoing significant impact and, if there is, the authorities would then be empowered to take it into account. I am not free to speculate about whether they would or they would not, by the way.
58 I take into account the impact of the virus in the manner that I have described.
The offence
59 Let me turn then to the offence. I have already summarised the offending. I will not repeat all that I said then or the other details that are spelt out in the agreed opening. This is an unmistakably serious example of what is an inherently serious offence. It was totally unprovoked. It was totally uncalled for. Someone who had been given their marching orders and it would seem was marching, and it was not even your unit. It represented an extraordinary overreaction to what was a complete non-event. An event that is so inconsequential that many of the players cannot even remember the reason for the disagreement. You take it a step further; you cannot even remember the event. It has all the hallmarks of drug and alcohol misadventure and disinhibition brought about by those things.
60 Then there is the mechanism. Punches and then at least three stabs, two of them to the abdomen. So it is the completely unprovoked use of a knife against an unarmed person. It was not some pitched battle. It was not some response or overreaction to some perceived harmful setting. That was not the setting at all.
61 The offence of recklessly causing serious injury is only committed if the offender foresaw the probability that his or her action would cause serious injury to the victim and went ahead regardless of that probability.
62 As the Court of Appeal spelt out in Ashe[7], a case which was cited with approval in a later case of Winch[8], the courts assessment of the seriousness of a particular instance of recklessly causing serious injury will involve a consideration of both the degree of probability that serious injury will result and the degree of seriousness of the injury thus foreseen. Winch dealt with glassing cases but the principles apply more generally. Since those cases, the threshold for serious injury was significantly raised with a new and much higher definition.
[7]Ashe v The Queen [2010] VSCA 119
[8]Winch v The Queen [2010] VSCA 141; 27 VR 658
63 There are some instances of recklessly causing serious injury where there can be something of a disconnect between the mechanism and the extent and nature of the injury, for instance a punch or a kick that might send someone flying to the ground where often, it is the fall that occasions the serious injury, often enough one to the brain. It is an outcome that is actually out of contemplation though there might have been the foresight of the probability of some other form of serious injury. You however were stabbing an unarmed man for no reason and targeting the abdomen with two of the blows, with the third into the upper thigh. There is the extent of the wounding. They are sizable wounds. All of them were inflicted in a public place and he was leaving the scene. You turned away and you left the victim, this is your friend, to his fate and that brings me to the nature of the serious injury. ‘Serious injury’ can be constituted by injuries that endanger life or which are substantial and protracted. I have had discussion with the parties earlier today about this and sought any submissions as to whether there was any dispute taken that either limb was amply satisfied here. There is no dispute. They are amply satisfied here.
64 This man came about as close to death as was possible. Even all of the interventions may not actually have saved him. Very fortunately for him and for you, he survived. So for this instance of recklessly causing serious injury, the injuries inflicted would have led to his death without swift first aid at the scene and then urgent and intense medical intervention at the hospital.
65 Your response was to go and hide the knife.
66 Then there is the ongoing impact. It has been really large. That much is made plain by the impact statement that has been filed today and again, there have been discussions between the Bench and counsel as to the impact. In the course of those discussions I said perhaps it could be contrasted with the totally catastrophic residual outcomes that are from time to time seen, such as an enduring brain injury with a person left in a vegetative state and someone who in that sort of setting, has just no quality of life at all. Those outcomes are often enough arrived at with a far less direct mechanism. Well we do not have that very worst of outcomes here, that much is plain, but there are some instances of recklessly causing serious injury where life has been endangered and where there is very little, if any, ongoing impact. There are some instances where there can be a swift and uneventful recovery, sometimes even without much medical attention. That is not the position here. Your victim's life was endangered. He survived. The impact has been really large. We are over 2 and a half years down the track and his life is still deeply affected. These are life altering injuries.
67 This is a high-level example of the crime of recklessly causing serious injury. It is a crime punishable by a maximum penalty of 15 years. It was committed by a mature man with a long criminal history. The only reduction in culpability arises from your disadvantaged background and the allowance that I have made for it. You do not have youth as an excuse. I am very confident that excessive alcohol use and illegal drug use had a very large role to play but that is in no way mitigatory. It is often enough the case.
Purposes
68 I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to your prospects of rehabilitation and I do.
69 I am required to punish you justly and proportionately.
70 I must also denounce your conduct. That is important in this case. This was really quite extraordinary and dangerous violence inflicted for no reason. I strongly denounce your conduct.
71 I must give real weight to specific deterrence in this case. Specific deterrence relates to the need to deter you from offending in the future. It is an important consideration here. You must be deterred from ever acting in this way again.
72 Then there is the need to adequately reflect general deterrence. General deterrence relates to the need to deter others. It looms large in the setting of this case, one of pretty extraordinary public violence committed with a knife, with grave consequences. I must seek to deter others from offending in the way that you did. This Court must send a clear message that conduct such as yours will simply not be tolerated and will be met with stern punishment.
73 I must also give adequate weight to community protection. Community protection is of real importance here given the seriousness of this offence. It looms large in my task, for obvious reasons.
74 I have to pay regard to the maximum penalty as well as to the impact of your crime.
75 I have mentioned the impact. It has been very large.
76 I must also pay regard to current sentencing practices.
77 Current sentencing practices are not a single controlling factor but just one of the many matters that I must have regard to.
78 Mr McGlone referred to the sentencing statistics. I have looked at the online statistics for this crime. Also, the Sentencing Advisory Council Snapshot that he referred to (No. 264 of 2021).
79 Statistics have inherent limitations. All of the many details which would explain the reasons for a particular sentence are omitted from the statistical data.
80 Sentencing is after all not a mathematical task. I am exercising a sentencing discretion in your case.
81 I have looked at some instances of sentences previously passed for recklessly causing serious injury as are set out in the case summaries attached to the Judicial College of Victoria website.
82 The fact is though that no amount of looking at other cases or at the statistics will ever provide the answer to my task. There is no such thing as an identical offence or an identical offender. Even if one could find an identical case, there is no such thing as one correct sentence. There is instead a range of available sentences.
83 I have to exercise my sentencing discretion in your case. I know the details of your crime. I know your personal circumstances. I am awake to the matters in mitigation and aggravation in this case, your case. There are many matters in aggravation here. It is in my judgement a particularly serious instance of the crime of recklessly causing serious injury for the reasons that I have spelt out.
84 Prison is a disposition of last resort. Your counsel concedes there is no other option here given the seriousness of the offence. Plainly that is a sensible concession. I will be passing a prison sentence of a dimension where I must fix a non-parole period.
85 I must not speculate as to whether or not you will be paroled. I must not even consider that issue. The Adult Parole Board will determine whether or not you will be paroled. It has nothing to do with me.
Disposal order
86 A disposal order is sought in this case. There is no issue taken with it. Application is made pursuant to the provisions of s78 of the Confiscations Act for the forfeiture to the State of the property referred to in the schedule. I am satisfied that the criteria for the making of this order is made out in this case. I direct that the property referred to in the schedule be forfeited to the State and handled in the manner contemplated by the signed order, which I have announced in an abbreviated fashion.
87 I am sorry to have had you pinned down there for so long, Mr Bland. I will pass sentence upon you now and I will have you stand up now if you would, thank you.
Sentence
88 On the charge of recklessly causing serious injury, Charge 1 on the indictment, you are convicted and sentenced to 7 ½ years' imprisonment. That is the only sentence and hence is the head or total effective sentence
Non-parole period
89 I fix a period of 5 ½ years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
90 You have already served 981 days of this sentence by way of pre-sentence detention and that s 18 declaration is entered into the records of the court.
Section 6AAA.
91 I have taken into account your guilty plea and have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of this offence following a trial before a jury, I would have sentenced you to 9 years' imprisonment. I would have fixed a non‑parole period of 7 years in that setting. Just have a seat then for a moment.
92 Is there anything else from either of the parties?
93 MR WALLWORK: No, Your Honour.
94 MR McGLONE: The PSD, Your Honour.
95 HIS HONOUR: Sorry?
96 MR McGLONE: The PSD, Your Honour.
97 MR WALLWORK: No, no (indistinct) declared.
98 MR McGLONE: Sorry, I didn't hear that it was declared.
99 HIS HONOUR: So anything else?
100 MR McGLONE: I was just wondering if the PSD was declared, Your Honour?
101 HIS HONOUR: Yes, I've declared it. Yes.
102 MR McGLONE: I beg your pardon, Your Honour. I didn't hear.
103 HIS HONOUR: He only gets it once. No, I declared the 901 days, all right. All right, nothing else then. So you'll go down and see your client will you?
104 MR McGLONE: Yes, I will, Your Honour.
105 HIS HONOUR: So Mr Bland, Mr McGlone will come down and have a chat to you downstairs and discuss what's occurred here today and your rights in relation to this sentence. He will be down there to see you soon enough. I will in due course, as is my practice, revise these remarks once I get them back from VGRS. I generally do them on the day that I get them. Well that completes the matter. We will have Mr Bland removed then, thank you. I will stand down for the moment, thank you.
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