Director of Public Prosecutions v Burchell

[2017] VCC 1744

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00026

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BURCHELL

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2017
DATE OF SENTENCE:	24 November 2017
CASE MAY BE CITED AS:	DPP v Burchell
MEDIUM NEUTRAL CITATION:	[2017] VCC 1744

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms E. Clarke
For the Director of Public Prosecutions	Mr M. Fisher

Pages 1 - 9

 

 

HIS HONOUR:

1Daniel Burchell on 1 November 2017, you were found guilty by a jury of the following charges on indictment number G10897334. 

Charge 2; recklessly cause serious injury to Benjamin Holland, and
Charge 4; recklessly cause injury to Nicki Lee Gaitanis.

2The verdicts of guilty follow the trial of over nine days.  You were acquitted of the more serious charges in respect of each of your victims.  They were charges of intentionally cause serious injury to Mr Holland and intentionally cause injury to Ms Gaitanis.

BACKGROUND TO OFFENDING

3Background of your offending is as follows.  In 2014, you had entered into a relationship with Ms Gaitanis.  You lived together at 14 Monaco Parade in Dromana with Ms Gaitanis' children.  You looked after the children - in part, treated them as your own children.  Ms Gaitanis held the lease to the property.

4In the past Ms Gaitanis had been in a relationship with Ben Holland. In or about February 2016, Ms Gaitanis renewed her contact with Mr Holland.  Between February and April 2016, they would socialise and go out driving, and play the pokies at local hotel venues.

5On 2 April 2016, the day immediately before this offending, Ms Gaitanis and Mr Holland had been out on a number of occasions to go driving, drinking, and to the Dromana and Rosebud Hotels to play the pokies.  The two of them had also consumed illicit drugs.

6Early in the morning of 3 April 2016, they returned to the Monaco Parade house.  You were in the main bedroom of the house.  The three of you had a verbal exchange in that bedroom and then Ms Gaitanis and Mr Holland went into the lounge room of the house.  You have entered the lounge room.  There was a fight between yourself and Mr Holland.  Mr Holland was stabbed twice by you and received life threatening injuries.  In the course of that fight
Ms Gaitanis tried to separate the two of you and was also injured with a knife wound to her right arm.  Ms Gaitanis and Mr Holland left the house and went next door to the Ferella house.  You fled the house and were arrested later on that day.

7Mr Holland was airlifted to the Alfred Hospital and underwent life-saving surgery.  Ms Gaitanis was taken to Frankston Hospital and required sutures to repair her injured right arm.

8The above is a brief summary of events the subject of these charges. 

9As a sentencing court I am required to determine the seriousness of this instance of recklessly causing serious injury, considering the following matters:

(1), the degree of probability that serious injury will result, and;

(2), the seriousness of the probable injury foreseen.

10In making this assessment I make the following findings of fact, which are consistent with the guilty verdicts of the jury in respect of the recklessly cause injury.  I make these findings of fact to the standard beyond reasonable doubt.

(1) You had a perception that there was a tension or risk that Ms Gaitanis and Mr Holland would harm you in the early morning of 3 April 2016;

(2) You armed yourself with a knuckleduster knife before you left your bedroom and went into the lounge room of the house, where Ms Gaitanis and Mr Holland were;

(3) When you entered the lounge room, both Ms Gaitanis and Mr Holland were seated on the couch just inside the doorway of the lounge room;

(4) There was a verbal exchange between yourself and Mr Holland which developed into a physical confrontation between the two of you.  I do not accept that Mr Holland had a knife or weapon at any stage in this altercation;

(5) In the course of the fight between yourself and Mr Holland, Ms Gaitanis intervened in an attempt to stop the fight, and to separate the two of you;

(6) In the course of the fight you had activated the knife which was part of the knuckleduster.  It was a flick knife type of weapon.  When I say "activated" I mean that you had it in an extended usual position;

(7) Mr Burchell, you then delivered two stabbing type blows to the abdomen area of Mr Holland in the course of that fight;

(8) You knew that the knife was in an extended position when you made those stabbing blows to the abdomen area of Mr Holland;

(9) There was a high degree of probability that a serious injury would be the result of the blows to Mr Holland's abdomen by you;

(10) Mr Burchell, you would have known at the time of delivering the stabbing blows that a serious injury to Mr Holland could result, and went ahead regardless of that risk;

(11) Mr Holland was seriously injured by the two stabbing blows, and if not for the initial intervention of Diana Ferella, and then the ambulance officers followed by the doctors at the Alfred Hospital, he would have died as a result of his wounds; and

(12) Mr Burchell, you have introduced the weapon to the fight, and the use of the weapon raises the moral culpability of this offending to what I would describe as a mid-range offending for recklessly cause serious injury.

11The offending against Ms Gaitanis occurred in the course of a fight between yourself and Mr Holland.  When Ms Gaitanis intervened to stop that fight. You had the knife in an extended position, and Ms Gaitanis' arm was cut in the course of that struggle.  The fact that you, Mr Burchell, had the knife in the extended position, with the risk of the injury to Ms Gaitanis as a result of the recklessness in this offending and the fact that you would have seen the risk of the injury to Ms Gaitanis and have gone ahead regardless, indicates the level of your recklessness in this case.  Your moral culpability of you in the offence against Ms Gaitanis is lower than it was in the offending against Mr Holland. Nevertheless the offence is a serious offence, because you have used the weapon in the course of your offending.

VICTIM IMPACT STATEMENTS

12I turn to the victim impact statements.  Mr Holland did not complete a victim impact statement personally.  His mother, Liz Brien, did prepare a victim impact statement on Mr Holland's behalf, and read it into the record in the course of the plea hearing.  The victim impact statement set out that
Mr Holland has suffered post-traumatic stress disorder and depression as a result of your attack.  Mr Holland has withdrawn from family and friends.  In the course of the evidence in the trial it was clear Mr Holland had a number of residual physical scars from the stab wounds themselves, and the surgical scars resulting from his treatment.  Mr Holland is not able to work and is now seeking the disability pension from Centrelink.

13Ms Gaitanis completed a victim impact statement.  It was Exhibit B. 
Ms Gaitanis states that your crime has caused her to lose everything.  Her children have been removed from her care.  She says her life has been turned upside down.  She has the constant reminder of the scar on her right arm. 
Ms Gaitanis had to move out of her home of some ten years and consequently lost contact with her friends in that area.  She stated that she feels:  "I am the criminal, not the victim".  Your offending has clearly had a significant impact on both of your victims in this case.

PERSONAL CIRCUMSTANCES

14I turn to your personal circumstances.  You are now 32 years old.  You have been raised by your mother.  You have no contact with your biological father.  Since approximately 2009 you have enjoyed the support and help of your stepfather, Chris Bos, who married your mother in 2012.  I note that your mother and Mr Bos were in court every day of your trial, as indeed they are today, and on the day of your plea.  You are fortunate to have strong and wide support from your family.  The references which form part of Exhibit 3 describe an honest, trustworthy and polite man who does not show any signs of aggression.  You are described by family members as "well mannered".

15Prior to your incarceration for these charges you were living with your mother, stepfather and your younger sister, Renee.  You are very protective of Renee, who is currently studying Year 11.  You had a close relationship with your maternal grandfather.  You were “mates", according to your mother.  When you were 12 he passed away, and this left you without a direct male role model in your life.  Mr Reid, a former neighbour, attests to your generosity and care given to him by you when he was injured at work.

16I accept that you are not normally an aggressive or a violent man, but on this occasion you acted well out of character.

17You have spent the early part of your primary education in Tasmania.  You returned to Victoria with your mother and continued your education to Year 10 level at TAFE.  Your younger sister was born near the time you had finished school. 

18Initially you started a painting apprenticeship but decided that occupation was not for you.  You then, between the ages of 17 and 28, worked as a welder with various employers.  You trained for this work on the job.

19Unfortunately in May 2014 you injured your shoulder at work.  In October 2015 you had surgery to your right shoulder, but have not been able to return to work since your initial injury.  Initially you were on WorkCover payments but at the time of this offending you were on Centrelink payments.

20You have had three significant relationships in the past.  The last of those relationships was with Ms Gaitanis.  You have no children.

21You have no prior convictions.  In the course of the trial your cannabis use was part of this case.  It was submitted on the plea that the cannabis use was to assist you with the pain management for your shoulder injury.  You fall to be sentenced as a person of prior good character.

SENTENCING CONSIDERATIONS

22I turn to sentencing considerations.  The basic purpose for which a court may impose a sentence are just punishment, deterrence - both specific and general - rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances. 

23I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

24I am also required to take into account current sentencing practices in fixing your sentencing.  That enquiry is directed particularly, but not exclusively, to the kind of sentences imposed in comparable cases, and the statistics for those cases.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. 

25I note that current sentencing practices are only one of the considerations I have to take into account in fixing your sentence.

26I am mindful of the provisions of the Sentencing Act, and in particular s.5 (4C), which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which a sentence is to be imposed. 

27Ms Clarke submitted that an appropriate sentence would be a combination of immediate imprisonment followed by a community corrections order.  I accept her submission that a CCO has a punishment component contained within it, but I find that the seriousness of this offending calls for a term of imprisonment with a non-parole period.

28A jury has found you guilty of the charge of recklessly causing serious injury.  Recklessly cause serious injury is a serious offence.  As I have stated earlier; the maximum penalty is 15 years' imprisonment.  Your offending has caused a serious injury to Mr Holland.  In committing the offence you have consciously disregarded the known risk of serious injury when using the knife in this case.  This is not a case of carelessness on your part, rather it is a conscious disregard of the risk of serious injury which you knew to exist at the time of your offence.

29The sentencing principles of general deterrence and denunciation dictate that the only appropriate sentence is imprisonment.  In respect of the charge of recklessly cause injury to your domestic partner at that time, this also requires the principles of general deterrence and denunciation to be given proper weight in sentencing considerations.

30The injury to Ms Gaitanis was not an accident.  The conviction for recklessness in this charge is to be taken to mean you foresaw the high probability of injury to her and went ahead regardless to the risk to her.  Imprisonment, again, is the only appropriate sentence for this offence.

31I accept Ms Clarke's submission that specific deterrence and protection of the community are not significant sentencing factors in your case.  

32I find your prospects of rehabilitation are good based on your lack of prior convictions, your demonstrated work history up until the time of your injury in 2014 and your ongoing family support.  To enhance your rehabilitation the extended period on parole will allow you to reintegrate to society with some added support so that you can reach your full potential as a contributor to our society.

33In fixing your sentence I have carefully considered the degree of cumulation in the sentences for the two charges and have particularly applied the principle of totality.  I find that a degree of cumulation is required in your case to reflect the impact on your two victims and the separate offending involved for each of them.  A term of imprisonment with a non-parole period is the only just sentence when taking into account all the factors set out here in these reasons for sentence.

34On Charge 2; recklessly cause serious injury, you are convicted and sentenced to two years and nine months' imprisonment.  That is the base sentence.

35On Charge 4; recklessly cause injury, you are convicted and sentenced to one year imprisonment.

36I order that six months of the sentence in Charge 4 be served cumulatively upon the sentence in Charge 2.  That is a total effective sentence of three years and three months.  I order that you serve a non-parole period of one year and nine months before being eligible for parole.

37I declare that you have served 54 days pre-sentence detention, which will be deducted administratively from your sentence, and I have signed the disposal orders sought yesterday; 23 November.

38MR FISHER:  Fifty-five days pre-sentence detention.

39HIS HONOUR:  Sorry.  It's 55?

40MR FISHER:  Yes.  There was a day we missed.

41HIS HONOUR:  My error.  I declare that its 55 days pre-sentence detention.

42MR FISHER:  Yes.

43HIS HONOUR:  Thank you.  Is there anything further?

44MS CLARKE:  No, Your Honour.

45HIS HONOUR:  Thanks.  You can remove the prisoner.  Thank you.  I'd just like to thank you both for your assistance in this case - trial and plea - and for you, Mr Fisher, that's the end of blue sky, I think?

46MR FISHER:  It is, unfortunately.  I've enjoyed the last couple of months.

47HIS HONOUR:  Yes.

48MR FISHER:  Thanks, Your Honour.

49HIS HONOUR:  Well, thank you very much for your help over the whole of it.

50MR FISHER:  Thank you.

51HIS HONOUR:  For those in the room it's just been an ongoing court process of listing trials; that's all I'm talking about here.  Thank you.

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