Director of Public Prosecutions v Borgmeyer

[2018] VCC 1889

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00897

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY BORGMEYER

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2018
DATE OF SENTENCE:	22 November 2018
CASE MAY BE CITED AS:	DPP v Borgmeyer
MEDIUM NEUTRAL CITATION:	[2018] VCC 1889

REASONS FOR SENTENCE
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Catchwords:              Criminal law – sentencing – cause injury recklessly (two charges) – theft – immediate custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Robinson	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms. T. Di Paolo	Stary Norton Halphen

HER HONOUR:

1Corey Borgmeyer, you have pleaded guilty to one charge of theft and two charges of recklessly causing serious injury, committed on 15 January 2018. 

2The charges are serious and that is reflected in the maximum penalty prescribed by Parliament and they are ten years imprisonment for theft and 15 years imprisonment for recklessly causing serious injury. 

3In addition, you admitted your prior criminal history. You have a concerning history that spans a period from 9 July 2003 until 24 May 2017l, and there are some 18 court appearances. 

4You have relevant prior convictions for crimes of violence including intentionally cause injury 2003, armed robbery 2004, robbery 2006, unlawful assault 2007, intentionally cause injury 2007, and recklessly cause injury 2007, intentionally cause injury, unlawful assault, recklessly cause injury in 2009, unlawful assault in 2009, affray 2012, intentionally cause injury and robbery 2012, recklessly cause injury 2015, assault with a weapon, theft and attempted robbery 2016, unlawful assaults and contravention of Family Violence orders, Intervention orders 2016 and unlawful assault and threat to inflict serious injury, 2017. 

5Over the years, the courts have put you on a variety of dispositions and you have spent many years in detention at Youth Training Centres and there are multiple terms of imprisonment.

6I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and is marked as an exhibit.  No issue was taken with the summary at the plea hearing. 

7The background to the offending was that you were in the city in the early hours of 15 January 2018.  You joined in a group that were seated on the footpath near the corner of Elizabeth and Collins Street, Melbourne.  The victims in this matter, Leanne Kilpatrick who was aged 36 and Jarrod Hardman aged 33, were also seated with that group drinking.  They were both friends who worked for a praline nut company selling goods at mobile stands located at various points in the Melbourne CBD.  They were not known to you prior to 15 January 2018. 

8Ms Kilpatrick and Mr Hardman had earlier finished their shift and had been socialising with each other.  They sat down with a group which included one homeless woman that Mr Hardman had known and was friendly with.  At some point, Ms Kilpatrick was hit in the face by an unknown assailant when an argument turned physical.  She then said to her friend, Mr Hardman, that she wanted to leave so they both walked away. 

9At about 4.20 am, Ms Kilpatrick and Mr Hardman were seated on some milk crates outside a 7-Eleven store located on the corner of Elizabeth and Flinders Street.  There they were approached by you together with three other people who were in your company.   

10Your group stopped and asked them both for some money and cigarettes. Both Ms Kilpatrick and Mr Hardman remained seated whilst those discussions continued. 

11Ms Kilpatrick had her mobile phone to her ear at one point.  You reached forward and grabbed her phone out of her hands and starting walking off north up Elizabeth Street.  She stood up and followed you and physically attempted to get her phone off you.  A struggle started and she was pushed by you to the ground. 

12Mr Hardman then got up from where he was seated and walked towards you.  He, too, tried to get the phone off you.  Ms Kilpatrick got off the ground and grabbed at you.  You pushed her to the ground again.  You then hit her a number of times while she was on the ground.  Mr Hardman tried to pull you off. 

13You then started struggling with Mr Hardman and at that time, you removed a knife from the waistband of your pants and stabbed Mr Hardman twice to the stomach.  Ms Kilpatrick then started struggling with you again and you stabbed her three times to the torso. 

14You then left with the three other people and police and paramedics attended.  Both Ms Kilpatrick and Mr Hardman were conveyed to hospital in a serious condition.

15The entire assault was captured on CCTV footage that was played in court and that CCTV footage has been viewed by me many times subsequently. 

16I am satisfied that the description set out in the prosecution opening is an accurate description of what is depicted on the CCTV footage.

17The three other people who were in your company were arrested that night, but police cleared them of any involvement in these assaults once they had viewed the CCTV footage.  Images of you were taken from the CCTV footage and released to media.  A number of people nominated you as being the person that was depicted. 

18On 20 January 2018, you handed yourself in to Ringwood Police Station and were arrested.  You were cautioned and explained your rights. 

19During the initial conversation with police and prior to formal interview, you admitted that you had stabbed two people in the CBD. 

20You told the informant where the knife used in the assault was located, and that was at an address in Lilydale.  Thereafter you made a no-comment record of interview when the matters were formally put to you.

21The consequences of your actions for the two victims have been serious.  Ms Kilpatrick sustained three stab wounds to the abdomen, flank and chest area.  The stab wound to the abdomen was 10 centimetres deep and required emergency surgery, opening the abdominal cavity to repair her colon. 

22The wound to the chest was three centimetres and caused a left 8th rib fracture.  Ms Kilpatrick had surgery to repair the diaphragm that had been penetrated.  The third stab wound was three centimetres deep to the left flank. 

23A chest drain was inserted to treat a lung injury and full particulars of the injury and treatment are as described in the statement of Dr Schreiber dated 28 February 2018 that was tendered at the hearing. 

24Mr Hardman was hospitalised till 8 February 2018.  He suffered two stab wounds to the abdomen which required emergency life-saving surgery.  Part of his small bowel was removed and his abdomen wall repaired.  He required treatment for lung collapse. 

25On 16 January 2018, he suffered a stroke, most likely due to blood clots as a result of the assault.  The stroke resulted in left side body weakness and speech impairment.  He required speech therapy and rehabilitation to correct the effects of the stroke.

26A further statement of Dr Schreiber dated 38 February 2018 sets out in full detail the description of the injuries and the treatment provided and that was tendered at the plea hearing.

27The effects of your crime have been devastating for both victims. 

28The prosecutor read to the court the Victim Impact Statement declared by Ms Kilpatrick on 8 August 2018. 

29In her statement she sets out both the physical and emotional consequences.  The attack has affected every aspect of her life and she is still coming to terms with the actual fact that she almost died.  She has been scarred for life.  Her scars are a continual reminder of what occurred.

30Physically, she has had treatment for her stab injuries.  She has scarring from both the laparoscopy and the laparotomy that was performed to repair her injuries as well as scarring from the video-assisted chest surgery to repair the diaphragm.  She required extensive treatment including antibiotics and strong painkillers which adversely affected her and made her physically sick.

31She suffered a bad infection to the main stab wound which prolonged her hospital stay, resulting in her having to take more antibiotics and strong pain relief.  She was unable to work for two months and then had another two months before she could regain regular work hours and duties, and it took her some six months to regain her physical strength and she has only, in the last two months, been able to return to regular exercise to assist her recovery.

32Financially, the crimes have had a large impact.  She was evicted from her home because of her inability to pay her rent and she had many outstanding bills.  She was required to take out a large personal loan from her employer to assist her in funding her bills. 

33Emotionally, she is still suffering the effects of this traumatic event.  She did not have any immediate family in Australia as her parents live in New Zealand and Canada respectively.  She relied on her very few close friends and her employers in Melbourne for continual support.  Her mother travelled to Melbourne from New Zealand to nurse her following her discharge from hospital. 

34Ms Kilpatrick has struggled emotionally since the attack.  She is hypervigilant and has a heightened alert for threats which she finds quite stressful as her work requires her to work on the street with the public.  She is having counselling to assist her emotions and anxiety. 

35Mr Hardman provided a statement that was given to the court, that sets out the effects on him, of your crimes.  The statement was provided without objection from defence.

36In that statement he describes what happened as a result of being stabbed.  He had part of his large bowel removed as the damage was quite severe and he had been left with scarring on his torso.  He too has scarring from the laparotomy performed on him from his belly button right up to the bottom of his chest and those scars are a constant reminder to him of the tragic events that occurred on that night. 

37He had a stroke as a result of the injuries, and he is now unable to use the left part of his body from his face down to his left foot and he has experienced frustration because of not being able to do ordinary everyday things like tying up his hair, going to the bathroom or even feeding himself.  He says he feels embarrassed, angry and sad about what happened, since it took around three weeks to recover enough from the stroke so that he could use his body again and feel somewhat normal again. 

38He suffered financial loss as a result of not being able to work and ultimately, he was evicted from his flat and returned to live in New Zealand to be supported by his family and to obtain ongoing support for medication and accommodation.  Fortunately, he has now been able to return to full time work. 

39Mr Hardman suffered emotional and psychological damage.  He is drinking more alcohol because of the pain he has experienced.  Previously, he had made a life for himself here in Australia over the past seven years.  He believes that his new life was selfishly stolen away from him because of your actions and his life will never be the same. 

40Mr Borgmeyer, this is very serious offending.  It is serious having regard to the serious injuries suffered by both victims the details of which have already been described, and the consequences have already been described for you.

41In sentencing you, there is a real need for the court to formally denounce your conduct and deterrence and the protection of the community are significant features of the sentence. 

42Ms Clark on your behalf conceded that the offending, the injuries suffered by the two victims and the subsequent impact upon them, was serious.  She conceded a substantial term of imprisonment comprising a head sentence and non-parole period is the only disposition open to the court in all the circumstances. 

43Following your arrest, you were remanded in custody on 20 January 2018.  You were sentenced on 4 July 2018 for unrelated matters, namely charges of assault an emergency worker and resist emergency worker.  You were sentenced to an aggregate sentence of four months imprisonment. 

44I have had regard to your personal history and background.  You are now 32, you have one sister.  Your parents live in Phillip Island.  They are responsible for caring for your daughter who was born in 2009.  The whereabouts of your daughter's mother are unknown.  Your parents have had the responsibility for the care of your daughter for some years.  You had your daughter in your care for only a very short time following her birth, and she has been primarily raised by your parents. 

45You have a maternal aunt, Linda and an uncle John with whom you have a close relationship.  Your uncle John was present during the course of the plea hearing and remains supportive of you.  You have maternal grandparents who are alive and you keep in touch with those grandparents. 

46You were born in Melbourne and as a 12 year old boy you went to live in New South Wales.  Your school years were marred by bullying, both physical and verbal, and learning difficulties.  Your full scale IQ has been assessed at 68, placing you in the borderline to extremely low range of cognitive functioning.  You had assistance with tutors at school but did not complete Year 7.  You returned for a brief period in Year 8 but then left school. 

47Your work history is extremely limited.  Primarily this is due to you being in and out of custody frequently since the age of 17.  The longest period of employment that you had was when you were a teenager and worked for a roof tiler for some two to three months.  Unfortunately, that employment came to an end on the death of your employer. 

48You were sexually abused as a child on one occasion at around age 6, by a family friend.  At school you were subject to serious bullying which included, as a ten year old, being strangled until you passed out and there is also the possibility of - at birth you suffered some asphyxia due to the umbilical cord being wrapped around your neck. 

49You were seen by Dr James Belshaw, Consultant Forensic Psychiatrist, on 21 September 2018, and I have had regard to the contents of his report which was tendered, date 12 October 2018.

50Dr Belshaw notes that you have spent most of your adult life in custodial settings.  Prior to the events, you told him you had been living between your friend's houses in Drouin and Lilydale, interspersed with periods of homelessness.  You told Dr Belshaw you first used alcohol at age 13.  You reported a pattern of binge drinking during adolescence but denied any regular abuse of alcohol or symptoms of dependence.  You first used cannabis at age 12 and have smoked regularly during periods in your life.  Prior to custody you said you had smoked daily. 

51You first abused amphetamines at age 14 and prior to custody you abused crystal methamphetamine between two to four times per week in variable amounts depending on whether you had been smoking or injecting the drug.  You first abused heroin at age 14, graduating to daily injections of the drug by your late teens. 

52You entered into the Suboxone and methadone programs to treat your heroin addiction.  You denied any regular abuse of the drug prior to custody.  You told Dr Belshaw you also experimented with hallucinogens, ecstasy and cocaine during your late teens, but denied regular abuse of these substances.  You also inhaled solvents as paint regularly from age 15 to 19. 

53You gave a medical history that included a series of periods of loss of consciousness and head injuries due to involvement with violence throughout your life.  You reported that you had been seriously injured by stabbing incidents on three occasions, some of which occurred in prison.  The last such event occurred in 2011 and required operative repair. 

54You told Dr Belshaw the context to this offending was that you were in the Melbourne Central Business District carrying all of your possessions in a large rucksack and a sports bag having left a friend's house with the intention of travelling via train to a course that had been arranged.  You missed the train and therefore you were spending the night in the CBD. 

55You said you were invited to join a group of individuals on the street who were drinking alcohol.  You were given some cannabis to smoke and you were later informed it was in fact synthetic cannabis.  You felt horrible after that and the synthetic cannabis made you feel sick.  You said that you had not abused alcohol or any other substances on the day in question, but you estimated the day before maybe you had used ice, but you could not remember. 

56You told Dr Belshaw you took the mobile phone from the victim because she was going to ask acquaintances to harm you and that you had a scuffle.  You told him you fell to the ground and she was grabbing at your face.

57You said that your heavy backpack remained on your back which limited your mobility and you could not run away.  You said the strap of the sports bag became entangled around your neck and you could not breathe and that you just lashed out with a knife.  You denied any planning or intent in relation to the alleged offending. 

58Your account given to Dr Belshaw is in stark contrast to what was shown on the CCTV footage and must be rejected.  What I observed from watching the CCTV footage was the victim was sitting with her friend using her telephone, when you snatched it from her hands and took off, and thereafter there was the scuffle and what occurred is as I have earlier described.

59At no time were you seen on the ground with Ms Kilpatrick grabbing at your face, nor is it obvious that the sports bag became entangled around your neck such that you could not breathe and that then you lashed out with the knife.

60Notwithstanding that you have given a different account of the alleged offending, you did state to Dr Belshaw that you did not wish to seek to be excused for your behaviour.  You admitted that you did a terrible thing and that you are guilty.  You told him, "It's make me sick thinking about it, it was a real bad situation, I wish I hadn't hurt anyone."

61Following his examination, Dr Belshaw concluded you did not suffer from any mental illness such as schizophrenia, bi-polar affective disorder or depression.  He did not believe that you have attention deficit hyperactivity disorder.  It is more likely, in his opinion, that your presentation and difficulties with learning and attention are due to your borderline intellectual disability, particularly the deficits related to your verbal abilities. 

62In his opinion, you do fulfil the diagnostic criteria for post-traumatic stress disorder, secondary to the repeated and life-threatening assaults that you have suffered in the past.  He also says that you fulfil the DSM 5 criteria for cannabis use disorder, severe, in remission due to incarceration, stimulant/ amphetamine use disorder, severe, in remission due to incarceration, inhalant use disorder in sustained remission and opiate use disorder in sustained remission.  He says it was a coalescence of factors that contributed to the alleged offending. 

63Dr Belshaw relied to a large extent on your description of what had happened, and in particular, he thought that your symptoms of post-traumatic stress disorder were relevant, particularly given that your report of the events at the material time were similar to significant childhood trauma whereby you were strangled.  

64My observation of the CCTV footage is that what you told him, the description, is not consistent with you being strangled and therefore I do not accept this aspect of his expressed opinion.  He further postulates that it is likely the repetition of this event exacerbated by disinhibition due to the use of synthetic cannabis and ongoing use of amphetamines, lowers your threshold for acting in an impulsive and violent manner.  Given the particular circumstances of this offending, I consider that this is the more likely explanation for your offending on this occasion. 

65Dr Belshaw recommends trauma focused cognitive behavioural therapy for your post-traumatic stress disorder.  He also recommends abstinence from alcohol and use of illicit substances and a referral to a drug and alcohol program to assist you with your rehabilitation and monitoring required to achieve abstinence.  He recommends support and assistance in respect to your cognitive defects. 

66In the event of a custodial disposition, he says you need to continue to be monitored by prison mental health services and you need to engage with prison psychological services, such as Caraniche.

67I note that you did report to Dr Belshaw that you had had four counselling attendances with Caraniche already in prison and that has been of great assistance to you and I urge the authorities to continue that treatment. 

68Ms Laura Scott, clinical psychologist, also examined you and provided a report.  Her report of 6 August 2018 sets out her findings in respect to your cognitive functioning. 

69She too makes a notation of your description of these events.  You told her the stabbings occurred in the context of you being involved in an argument with a number of people from a group, that quickly escalated.  You told her a man and a woman had become increasingly angry and were starting to become violent and that you were increasingly frightened.  You told her after making several requests for them to stop or leave you alone, you eventually became too distressed and frightened at which time you pulled out a knife out of you bag and stabbed them both.  Clearly, that version of the events is wrong, having regard to what is set out in the prosecution opening and what is observed on the CCTV footage. 

70Again, notwithstanding that this version of events is contrasting to the established facts, you did express to her a clear awareness of the impact of the injuries to the victims and the hurt you have caused.  You told her, "I feel bad, I feel so sorry for what happened, I shouldn't have been carrying a knife."  You were aware in particular that the male victim had suffered a stroke and you were especially concerned for his well-being and deeply remorseful for the role you played in that event. 

71Ms Scott concluded following her neuro-psychological testing, that you have a full scale IQ score of 68 which places you in the borderline to extremely low range and mildly below pre-morbid estimates.  She noted that there were significant discrepancies between the test results which limited her interpretability of the score and that is set out in full detail in her report.

72Having regard to the expressed opinions of Dr Belshaw and my findings in relation to the fact that Ms Scott was given a different history than that which has occurred, I have placed less weight on her expressed opinions. 

73She did, however, note that there was a complicated mental health overlay with historic diagnosis of Attention Deficit Hyperactivity Disorder, bi-polar spectrum disorder as well as depression and anxiety, and she postulated because of your behaviour at the presentation, there may have been an active psychosis.

74I prefer the expressed opinion of Dr Belshaw who has psychiatric qualifications and who after examining you, found that there is no psychosis present and no diagnosis of bi-polar spectrum disorder or depression. 

75Overall, what I did glean from Ms Scott's report, is that you are a person who has cognitive deficits, you have borderline IQ and verbal learning disorder, and all of those were operative at the time of the offending.  I do not accept that you had been diagnosed with a number of psychiatric conditions that were present at the offending that were likely to impact upon offending.  I do however, accept that your cognitive impairment is such that you do have a disorder that impacts on your impulse control and your ability to regulate your behaviour and I have taken that into account. 

76Ms Scott concluded that your impulse control disorder would have made your behaviour disinhibited and could have contributed to conflict with the victims.  It would make you prone to acting on your first impulse without considering the wider impacts and longer term consequences of your behaviour.

77Overall I do accept that your borderline intellectual disability and cognitive impairments have impacted upon your ability to make calm and rational choices and to think clearly, and to that extent, I am satisfied the Verdins principles are enlivened, and to an extent your moral culpability is reduced and there is a need to moderate specific and general deterrence.

78However, having regard to your past history of violent offending, I consider that there is therefore a need to emphasise the protection of the community in the sentence that I am about to impose.  

79You have settled well in prison and you are reported to be working in the laundry.  You have been able to access appropriate counselling through Caraniche and you have not required any active medical management.  There does not appear to have been any incidents or conflict with other prisoners or Correctional authorities.  I am not satisfied that there is any evidence that your mental health condition has deteriorated since you have been in prison.

80Dr Belshaw has highlighted the need for ongoing treatment in respect to post traumatic stress disorder and he said having regard to your condition, that prison would be more burdensome for you than if you were not to have the condition he has described. I have taken that into account.

81In formulating the appropriate sentence, I have had regard to all the matters put in mitigation.  I accept that the pleas of guilty have significant utilitarian benefit.  They were entered at the earliest opportunity.  I accept that they are evidence of some remorse and that is also reflected in what you said to Dr Belshaw and Ms Scott as well as to police prior to the formal record of interview. 

82Through your pleas of guilty you do accept full responsibility for your conduct, and acknowledge what you did was wrong.  You have commenced to  deal with the triggers for your underlying offending behaviour and you are now having psychological counselling with Caraniche addressed at your past drug use.

83However it is necessary for you to be supported in the future in terms of having appropriate treatment for your post-traumatic stress disorder.  In addition you require programs that address your propensity to resort to violence when put in stressful situations. 

84You are a man who has spent many years in custodial settings and there is a real risk that you are institutionalised or becoming institutionalised. 

85In terms of your rehabilitation prospects I am guarded about those, but I am mindful that you do have very real support from both parents, your aunt and uncle and that you are motivated to do your best in the future in terms of wanting to be present to be a father-figure for your daughter so that those factors weigh in your favour. 

86I accept that this offending was not planned and that it did occur spontaneously.   Having regard to the nature of your offending, your criminal history, the need for the court to denounce your behaviour and the need to provide for the protection of the community, I consider that the only appropriate disposition in a term of imprisonment to be immediately served. 

87General and specific deterrence are relevant, albeit somewhat moderated for the reasons that I have already expressed.  I have had regard to the principle of totality and the need to impose just punishment. 

88Could you please stand now. 

89The formal court orders are as follows;

90Charge 1 theft, you are convicted and sentenced to 12 months' imprisonment;

91Charge 2, recklessly cause serious injury - is the first charge in relation to Ms Kilpatrick?

92MR ROBINSON:  Pardon me, Your Honour. 

93HER HONOUR:  I have not got the - - -

94MR ROBINSON:  Yes, it is, Your Honour, Charge 1.

95HER HONOUR:  Yes, it is, okay.  Charge 2 is Ms Kilpatrick. 

96MR ROBINSON:  Sorry, Charge 3 of the theft charge - sorry no, I take that back, sorry.  My mistake. 

97HER HONOUR:  Charge 1 is theft.

98MR ROBINSON:  Charge 1 is theft.  Charge 2 is the serious injury to Hardman.

99HER HONOUR:  Which is the male.

100MR ROBINSON:  The male.

101HER HONOUR:  Yes.

102MR ROBINSON:   And Charge 3 is in relation to Kilpatrick.

103HER HONOUR:  Okay, I  just had to check that. 

104So Charge 2, recklessly causing serious injury, convicted and sentenced to six years' imprisonment.

105Charge 3, recklessly causing serious injury, convicted and sentenced to five years' imprisonment.

106I order that one year of the sentence imposed on Charge 3 be cumulative upon the sentence imposed upon Charge 2, making a total effective sentence of seven years' imprisonment and I fix a non-parole period of five years. 

107I make the following declaration pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of nine years to serve seven years. 

108I make the order for disposal noting this order was consented to;

109And finally, I make the declaration of pre-sentence detention.  I declare that you have served 184 days in pre-sentence detention and direct that that be entered into the records of the court. 

110So that concludes my sentencing remarks.  Thank you.

111I have the disposal order here.  That's been signed, that can be provided, otherwise, Mr Borgmeyer can be taken downstairs.  Thank you. 

112We can adjourn. 

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