Director of Public Prosecutions v Carbis
[2022] VCC 1075
•7 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00268
Indictment No. M10875897
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID SAMUEL CARBIS |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 July 2022 |
DATE OF SENTENCE: | 7 July 2022 |
CASE MAY BE CITED AS: | DPP v Carbis |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1075 |
REASONS FOR SENTENCE
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Catchwords: Intentionally Causing Injury; Aggravated burglary and ICSI in separate incident 10 days later. Confrontational aggravated burglary followed by repeated stabbing. Critical injuries; Summary offence: commit indictable offence on bail; Early Plea; Remorse; Worboyes v The Queen [2021] VSCA 169; COVID-19; Almost 32 years of age with lengthy enough criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. White | Office of Public Prosecutions |
For the Accused | Mr J. Barrera | Stary Norton Halphen |
HIS HONOUR:
1David Samuel Carbis, you pleaded guilty on Tuesday of this week to one charge of intentionally causing injury, one charge of aggravated burglary and one charge of intentionally causing serious injury. You also pleaded guilty to one summary offence of committing an indictable offence whilst on bail.
2You are almost 32 years of age and have a lengthy enough criminal history, which is admitted to be of some relevance to my task.
3This was a confrontational burglary, an entry with intent to assault and with the feature of statutory aggravation being the carriage of an offensive weapon, a knife, and also your state of mind as to the premises being occupied.
4You have been in custody since your arrest back on 28 April of last year. That is by far the longest period you have ever spent in custody.
5A summary of prosecution opening for the plea correctly sets out the maximum penalties and I will not repeat them. Intentionally causing serious injury is a Category 2 offence, though nothing hangs on that, as it is correctly conceded by your counsel that the only disposition available here is a term of imprisonment with a non-parole period being fixed.
Facts
6That summary of prosecution opening is dated 7 June 2022 and was marked as Exhibit A on the plea. It is a quite lengthy summary running to several pages and your counsel, Mr Barrera, told me that it was an agreed summary.
7As a result, I see no need to set out the full sentencing facts in these, my reasons. I will sentence pursuant to the agreed summary supplemented only by those matters in the depositions that were raised by me on the plea. For instance, the medical materials including the report of Dr Tai and Dr Schreiber and also the photographs of the knife and of the injuries.
8By way then of only a brief summary, the victim of Charge 1, intentionally causing injury, was one of your associates, a man named James Minns. You had known each other for several months and you had been associating regularly. How you knew this man or the other victim, Mr Burke, for that matter, has not really been explained by your counsel.
9You turned up at Mr Minns’ place in Henderson Place in Mildura at night on Friday, 16 April of last year, and you sat and chatted together in the lounge room. There was no animosity. You announced that you would stay and sleep in the front of the house. He was uneasy with you being in the house, so locked the door to the lounge, where he remained sitting on the floor in front of the couch, playing with his dog. You unlocked the door at some point later on and then just set upon him with his baseball bat for no earthly reason that I can determine. He was sitting on the floor and was completely vulnerable. He was struck repeatedly to various parts of his body, including to his face. He lost consciousness multiple times throughout this incident. The next morning he awoke and sought assistance. Police and paramedics were called. He had abrasions or grazes to his mouth, right arm and right leg but with no active bleeding. He was complaining of soreness also to the left side of his body but ultimately he refused to attend hospital.
10He provided a very limited first statement to the police but with a far more detailed statement made some days later. It transpired he had been scared to report the details of the incident and feared there would be some repercussions from you.
11You had in the meantime admitted to one of your other associates that you had bashed him unconscious. The reason for bashing Mr Minns remains a complete mystery. You gave instructions to your counsel of having knowledge that he, Mr Minns, had stolen your tools or had some role in that or in disposing of them and secondly, that he had mistreated his own dog on the night in question and that these things had a role to play in motivating your actions. I put your counsel on notice that I saw no basis to accept those instructions on the materials available to me. There was no evidence at all to support them. You were not called on the plea. I do not accept for one moment your instructions. Indeed, I am confident that was not the position at all. This was a totally unprovoked, unwarranted and explained attack.
12The other incident was about 10 days later and involved a quite separate victim named Nick Burke. Again, you had known each other for several months. Text traffic to his flatmate in the lead-up to 27 April mentioned that you were looking for Mr Burke and that he owed you $100. It seems apparent from the concession made by Mr Barrera on the plea that it was a drug debt of some description, though nothing in particular hangs on that. I am not dealing with you for selling drugs. The source of the debt is actually entirely unimportant to me. Whether it was $75 or $100, to take the action that you did take was startling. Again, you provided to counsel your instructions as to your reasons for attending. You instructed Mr Barrera that this attendance likewise was connected up to the theft of your tools and your knowledge that Mr Burke was involved in the theft of, or the resale of the tools. Again, I put your counsel on notice of my provisional views as to your account and, for that matter, the complete absence of any support for it. There was no interview from you, only some very broad statements made to Mr Cunningham but, more importantly, there was nothing in the text traffic or in the utterances at the scene, suggesting your version was in any way true. Nothing about tools being stolen or tools being recovered, nothing about theft and nothing about great sums of money. You were not called on the plea and I do not accept your account at all. I say account, but of course there was no account. There was a debt, and a very small one at that, but your counsel, though conceding it was a drug debt, would or could say no more about how it was arrived at. It does not actually matter. I am confident that there was no greater matter involved here.
13You had in fact attended back at your first victim's home between 26 and 27 April and told your first victim, Mr Minns, that you were due for a holiday and that you would get five years for what you were about to do. You were prophesising a serious enough crime and so it came to pass. For what you then did was attend in company at Mr Burke’s home late at night. How were you in company? You recruited the much younger, Mr Taylor, saying that he should come with you to make some money. You then walked to another address where Taylor changed clothes and then you two walked to the target premise, that is to Mr Burke's unit at Unit 3, 226 Deakin Avenue, Mildura. It was late in the evening.
14Mr Burke and some others got home from a night out at the RSL at about
10.25 pm and were sitting around the lounge room, chatting. You and your offsider, Taylor, can be seen on the CCTV footage approaching the premises. You handed your offsider a bag. You said to Taylor “follow me”, and then you gained access to the unit. You entered via the rear gate into the carport area and then in through the front door. Taylor, who was doing as you bid him to, that is following you, tried to push his way into the unit past one of the occupants, but he was pushed back and prevented from entering. This was a unit that was occupied by a number of people, not just Mr Burke.15Mr Burke was sitting on the lounge. Others were around him. You shook
Mr Burke’s hand and then said, “where is my money cunt?”. He was not too pleased with your approach and he remonstrated with you for entering the premises in such a way and saying what you had said. Your response was to punch him to the face and a struggle ensued and you were struck once yourself, but you were there to assault. You produced a folding knife, and holding it in your right hand, you then stabbed Mr Burke repeatedly. Five stab wounds. Three to the right chest area, one to the left arm and one to his left flank. You meant business. You were heard to say: “you made me do this all over $70”. Again, not one mention of tools or theft or any greater grievance. Merely a trifling debt. Burke was heard to reply, “did you just stab me?”16It was mayhem within the unit. Your offsider, Taylor, ran from the scene, yelling that Nick had been stabbed. Others left the scene. You left without any offer of assistance to the person you had just repeatedly stabbed.
17Mr Burke’s two flatmates were left at the scene and they rang Triple-0 and did what they could do to tend to Mr Burke’s serious injuries. They tried to staunch the bleeding. He was gasping for breath and appeared to stop breathing. The paramedics and police attended swiftly by 10:38 in the evening. Just as well they did, or you might very well be facing a murder charge. For
Mr Burke, as we now know, was in a critical condition, and as a result he was transferred by air ambulance from the local hospital in Mildura to the Royal Melbourne Hospital.18Having left the scene, you visited Mr Minns' house at about 10.50 that night and made an admission as to having stabbed Nick five times, he saw blood on your clothes and also a knife. You visited other people, at one stage asking if Nick was alright. See paragraph 51. At another point saying, “he got what he deserved”. See paragraph 52.
19You dumped some of your clothing in a bin and hid the knife in a shoe.
20Mr Burke’s injuries are summarised at paragraphs 55 and 56 of the opening. The medical materials in the depositions, of course, are far more complete. There is an expert statement as well at page 241, the statement of Dr Schreiber. Some of these were forceful, deep, penetrating stabs. Three ribs were fractured. His right lung was punctured. He had left retroperitoneal bleeding and with no medical treatment he probably would have died. Given the site of the wounds and the seriousness of them, you are very fortunate indeed not to have killed him. As it was, he was hospitalised for a number of days.
21A crime scene was established. Mr Burke disclosed your identity to a treating nurse before being airlifted to Melbourne.
22You were arrested later on in the afternoon and disclosed where the knife was and what you had done to some of the clothing. That was off tape. When it came time for the police interview, you declined to comment as was your right.
23You were on bail at the time for a charge of theft from vehicle and going equipped to steal.
24As I have said, you have been in custody since your arrest.
25Mr Taylor was the offsider that you recruited. I have indicated that he was not able to actually physically enter the premises. He was pushed away at the door with his entry being barred. He was dealt with for trespass rather than aggravated burglary. There is no issue of parity under consideration here.
26So much then for what really is only my very brief summary of the agreed summary. I will sentence pursuant to the more detailed agreed statement, which is marked as Exhibit A. There are photographs of the knife at page 494 and also the site of the injuries to Mr Burke at page 580. Mr Minns is photographed at page 341 of the depositions.
27Your offending simply beggars belief. I do not pretend to understand why you acted in such a way. It was brutal and serious offending and of course now you must be held to account for it.
Impact
28There is an impact statement from your first victim, James Minns. Mr Minns describes how he has been affected. Nothing he says is at all surprising. Now, I do not have regard to the suggestion of there being any prolonged harassment and/or intimidation in the past. I am only dealing with this one event, but it was an event which has understandably left him very badly shaken. He no longer feels as safe and as trusting as he once did. It has had a significant impact upon him.
29There is no victim impact statement from Mr Burke. I hardly need one. You stabbed him repeatedly and you came perilously close to killing him. Your counsel conceded that the crimes would have caused him significant impact. See p5.
30I was informed by the prosecutor via the informant, that Mr Burke has made a good recovery and he has not been left with any long term physical impacts or any medical sequels. He has scarring but he did not wish to provide a victim impact statement.
31I take into account the impact of your crimes.
In Mitigation
32Your counsel, Mr Barrera, had prepared an outline of plea submissions dated 30 June 2022. He filed a report from a psychologist, Mr Cunningham. He relied upon a handful of character references. There was a letter from your mother, one from your father, one from your sister and also your partner, as well as one from an old TAFE and work colleague. Mr Barrera relied upon an individual counselling letter and a shorter completion document from Caraniche, and a couple of clean drug urine screens. Also a remand history document. He made some submissions about what he said was some, 'dead time', to be found in that material.
33He told me about your family background, as well as about your relationship, educational, and employment history. He descended only in a very limited and general way to some of your past offending. He made submissions about the relative objective gravity of the offences to which you have pleaded guilty, as well as the relevant sentencing purposes in this case. Also the need to avoid double punishment. He made submissions about your substance abuse history and your efforts whilst in custody and argued there were at least some prospects of rehabilitation. He placed before me some cases, Nash[1], Barnes[2] and Abdifar.[3] He challenged any suggestion that drug use should be an aggravating feature here, though was not for one moment submitting that it had any mitigatory value.
[1]Nash v The Queen [2013] VSCA 507
[2]DPP v Barnes & Barnes [2015] VSCA 293
[3]Adifar v The Queen [2012] VSCA 66
34He relied upon the following matters in mitigation:
·your early guilty plea in the midst of the global pandemic and some level of cooperation;
·the presence of some remorse; and
·the impacts of COVID-19 upon your custodial experience to date, as well as into the future.
35He conceded that a substantial term of imprisonment was required here and one of a dimension obviously requiring the fixing of a non-parole period.
Prosecution
36The prosecution called for precisely that outcome and, as I say, it was not in any way in dispute here. Mr White, who appeared on behalf of the Director of Public Prosecutions, had prepared some detailed written submissions dated
4 July, which were marked as Exhibit C. They descended to matters of general principle and then applied those principles to the particulars of your offending. There was really very little in dispute between the parties, and I am not going to wade my way through those various matters in my reasons, which will be more than long enough as is. The major dispute between the parties was whether your drug use could or should be viewed as a matter of aggravation. My provisional view was that it could not be, and I voiced that, and upon hearing that, the prosecutor withdrew his submission to the contrary. The prosecutor made submissions as to where on the spectrum of offence seriousness your conduct fell, as well as on the need for a level of cumulation in this case.37The prosecutor challenged your instructions as to the reasons for the offences, pointing to the agreed summary and the absence of any evidence in support of your account, I have already dealt with my conclusions on that topic. The prosecution challenged the submission that there should be any allowance for the period of 101 days of so called, 'dead time'. It was entirely speculative that this time had not been taken into account on other occasions, argued the prosecutor. He submitted that I should not be speculating on that score.
38I will discuss these various submissions shortly.
Background
39I will turn firstly though to your background but I will do that quite briefly, as I have no reason not to accept what I have been told as to your background. Much of that is set out in the written outline on p1, as well as in the report of the psychologist, Mr Cunningham. There is no point in my restating it all.
40You were born in July 1990, so are now almost 32 years of age. You were the youngest child of three. You have an older sister and a brother. You had a decent enough background with loving parents but it is clear there were some issues of violence at the hands of your brother when you were younger. Your parents separated when you were still in primary school and you started to rebel a bit from that point. Your sister’s reference speaks of that phase of your life.
41You started using alcohol and drugs at an early stage. You began to use ice when you were about 20 and that has been a problem. You were educated up to year 10 but struggled along. It is claimed that you were diagnosed with ADHD. I have no idea if that is so or not.
42You did a pre-apprenticeship course at TAFE and then entered an apprenticeship, which you never completed. I was taken to the details of your work history. I see no need to repeat all of the detail provided to me. You have had a large number of jobs over the years, though difficulty in staying with one employer for any significant period. You have, however, worked as a diesel mechanic, and work it would seem has been pretty consistent. There have been a few stints at working in the mines and also as a truck driver and even in a firewood business.
43You left home at the age of 18 and, as is the way with drug users, have had, it would seem, an on/off relationship with your family. Plainly, they still support you and your father and others, including your sister, Sharlene, and your partner, Ms Bilton, have noticed a change since you have been in custody. You have one 12 year old son, who you do not see, and an 18 month old son from a more recent relationship. You have rekindled your relationship with Ms Bilton, and she has written a long and useful reference.
44As is often the case, references such as these show you are far more than just the person who has committed these undoubtedly serious crimes. There is a quite different side to you, a better side, and one seen by those who know you best, and one that emerges when drug free and stable, which has been quite rare over the last few years, it must be said. Some of the authors speak of the changes that they have observed in you since you have been on remand from April of last year.
45You have done well in custody. You have completed 21 one-hour sessions of individual counselling and engaged well in that process, and that is to be commended. It is useful for you and hopefully will be so upon your release.
46I should say that as part of your background, you had also taken some steps in the periods from 2014 through to 2017, to rehabilitate from drugs with engagement in a program described as the ‘RecoverOz’ program.
47You have a lengthy enough criminal history. Your counsel describes it as, 'significant'. Though dating back only to 2013, it is troubling enough, though it seems to me that the current offences involve a significant escalation. You have many prior appearances, including one for trafficking in Ice. There are dishonesty and Bail Act offences. There are many weapons offences and driving offences but no offences of violence. I was provided with no detail of the weapons that you had previously carried or possessed or any of the circumstances of the past act of trafficking. What is clear from that record is that you have breached many Court orders. You have been sent to prison on a few occasions for much shorter periods and just continued to offend upon release. You had emerged from a 120-day sentence only some months before this violent foray. You have not taken your chances, having breached four out of five community corrections orders, and as I have said, you were on bail at the time of this serious offending that I am dealing with.
48I must pass proportionate sentences here, and that criminal history does not aggravate the offending that I am dealing with. Nor do you fall to be sentenced a second time for any of that past offending. You received those other sentences and you served them. That history does however, have some relevance to my task because I have to make judgments about your risk of re-offence and your prospects of rehabilitation. I have to make judgements about the need to deter you from future offending, as well as the need to protect the community from you. The need for specific deterrence and community protection is pretty clear here.
49I turn then to consider the other matters that have been raised on your behalf by Mr Barrera.
Guilty Plea
50The first of those matters is your guilty plea. There was a contested committal conducted in this case but it settled before Mr Burke was called on day two of the proceeding. Mr Minns was cross-examined but there were some other charges of theft pertaining to some of his property, and those charges were ultimately withdrawn. There was also the attempted murder relating to
Mr Burke. Likewise, of course, that did not proceed. It was your right to run the committal and it would seem it achieved its purpose.51You have pleaded guilty at what I will treat then as the earliest opportunity.
52As a result of taking this very early responsibility, the time, cost and the effort of a full-blown committal in the lower Court, or a trial up in this Court, has all been avoided. Witnesses have not been required to give evidence at a trial before a jury. Mr Burke did not even need to give evidence at the committal hearing.
53There was some cooperation with the police in identifying the location of the knife and some clothes, though of course that cooperation dried up once you were put on tape. I take your cooperation into account as well, though your counsel was not suggesting it was a large matter overall. Of course, it was not. It was a bit rich to speak of the admissions that you have made to other civilians as evidence of your cooperation. See the written submissions at p2. You were not cooperating by speaking to Mr Minns or Ms Blanke. What you were doing was speaking to peers, and in the case of Mr Minns, warning him that he must not tell others what you had said or you would be back.
54You have, though, facilitated the course of justice in the ways that I have described.
55Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[4] A large backlog of cases has arisen in the course of the global pandemic. Your case was really never one of them. It was always going to settle. It was a matter of which charges, and it was very swiftly settled.
[4]Worboyes v The Queen [2021] VSCA 169
56So I take these various matters into account in mitigation.
Remorse
57Are your remorseful for your crimes? Your counsel argues that there is some remorse here. He was not suggesting that it was particularly fulsome. He relied upon your early guilty plea and the expressions of remorse found in some of the defence materials, including the character references and the report from Mr Cunningham. Well, Mr Cunningham reporting you as, 'Stating you are remorseful and regretted your actions', is of no great value to me at all, nor was I impressed by what you said at the time of the attack upon Mr Burke about what he made you do, 'all over $70', or saying after the event that he had got what he deserved. He made you do nothing and he deserved nothing. Of course, those were things you said at the time, and that time was well over a year ago. I must say I am concerned as to the current instructions given by you to your counsel as to the motivation for the offences. I am confident they were not your actual motivations at all. That did not convey to me much regret or remorse at all actually and reeked of an aspect of justification or attempted minimisation and that was the current position, not something existing back in April of last year.
58I do, though, have your early guilty plea, and that is often, though not always, indicative of some remorse. I am more impressed by the written references, though there is a bit of self-pity lurking there, as well as regret for letting down your family and annoyance at your own position and loss of your own reputation. I am prepared to find that there is at least some remorse in this case. So I take the existence of some remorse into account in your favour.
Rehabilitation
59I turn now then to your prospects of rehabilitation.
60To put it in perspective, your counsel argued that you had some prospects of rehabilitation. He could put it no higher than that. It is a bit hard not to be guarded here. You have not taken your chances when offered them by the Courts over the years. You have seen the inside of prison on a handful of occasions. That has not deterred you sufficiently. Courts have tried to lead you away from crimes with multiple community corrections orders with treatment and rehabilitation conditions, and that has not been successful. You had sought out rehabilitation through RecoverOz in the past and that also was not entirely successful either.
61You were on bail at the time of this offending.
62You were not some silly teenager, committing youthful crimes. You were a mature man with a lengthy enough criminal history, engaging in unmistakably serious crimes. These crimes involve a significant escalation of offending. You have no prior offending for violence. You have had long term and serious issues with drugs for decades, and that sort of thing casts a real shadow over a person’s future prospects. The written references spell out how people have tried to encourage you to change in the past.
63Mr Cunningham speaks of your level of risk of violent offending and the increase in that risk in the event that you continue to use drugs.
64However, you also have some family support and you do have and have had a decent enough employment record over the years. You have done some useful counselling in custody and it has been no picnic for you whilst in custody. Conditions have been tough. It is the longest you have ever spent there by a large margin. Those who know you have seen a change in your attitude, a change in the way you speak about the future, and of course they all hope that change is within you. You speak of your desire to get some acreage and conduct your own business.
65Words are easy enough to utter, promises easy enough to make, especially when they are uttered by a person who is in custody and awaiting a court hearing. The real test will come for you upon your ultimate release from custody, and that is years away, but I certainly will not write you off and say that change is entirely beyond you. I hope it is not. I hope it is not for your sake. I hope it is not for your family's sake. I hope that you can change.
66Having considered all of the materials, I am prepared to accept the submission that you have some prospects of rehabilitation. Those prospects will be very much conditional upon abstaining from drug use in the future, and that has been a very big problem for you over many, many years.
COVID-19
67I turn then to the issue of COVID-19 and its impact upon you. Your counsel argued that there had been hardship arising from the impacts of the global pandemic. He submitted that on your instructions there had been over
125 days, 128 to be precise, in lockdown or quarantine. I accept that the COVID-19 virus and the response to that virus by those running the prisons has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time that you have been there since April of last year.68I am sure there has been worry about catching the virus in such a setting where, unlike someone who is out in the community, there really is no level of autonomy or control. In fact, you have caught the virus already but were lucky to suffer minor enough side effects.
69I accept that you have experienced the increased burden of quarantine or lockdown on a number of occasions.
70There undoubtedly has been some limitations to visiting and the full range of courses and programs in a decent amount of the period in which you have been held. Indeed, I was told you had only one visit from April 2021 to March 2022.
71It certainly has not been a good time to be locked up.
72Things have looked up in recent times, in the community but also in a prison setting. That is accepted by your counsel. Personal visits resumed from about March of this year and I was told that you have had visits.
73As to what lies ahead in the future on the pandemic front, well, it is impossible for me to determine and I am not free to guess. Those whose job it is to run the prisons will be able to actually reflect on the actual impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the sentence which I will soon impose. I cannot know if that will take place or not and I certainly do not proceed on the assumption that it will. To take that into account in that way would have me contemplate future 'executive action', which is prohibited. However, case numbers are still high in the community. It is not that unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming months. There will be at the least, a lack of certainty as to what lies ahead. I take that into account as well. The prisons have tended to lag a bit behind the community in terms of restrictions being lifted. They also tend to bring restrictions back in more rapidly and it is pretty plain to me that we are not yet, 'out of the woods', in terms of COVID-19 and its ramifications, both in the general community and for prisoners. But it would be quite wrong for me to conclude at this point that your sentence as a whole will be served under more onerous conditions. That strikes me as entirely unlikely given the dimensions of the sentence demanded in this case. There have been the issues to date, which I do take into account, and some uncertainties in the short term ahead, which likewise I factor in, but beyond that, really, it is pure speculation. The authorities will be in a much better position to assess the actual impacts which lie ahead.
74I take into account the increased burden posed by the response to
COVID-19 in the manner that I have described.Mr Cunningham
75I have mentioned already the report of Mr Cunningham, the psychologist. You might have gathered I was not greatly impressed by that report. It strikes me as yet another report with very little by way of rigour. Prepared after a single attendance, whether by video link or in person conference I cannot really determine, and dependent on your self-report. It was mostly being relied upon as setting out your background. It was useful in that respect at least. There was the risk assessment and also mention of your stated remorse.
Mr Cunningham described a generalised anxiety disorder. There is no satisfactory explanation of your offending at all and nor was your account to him of trying to recoup possessions challenged, as it really should have been, in light of the complete failure to have mentioned those belongings in either attack and the mention of a small debt as plainly being the reason for the second attack. There is just no rigour on display in that examination brought to bear by
Mr Cunningham.76This report was not being relied upon to enliven any of the principles from the well-known decision of Verdins v R.[5]
[5]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
77It is not of any great use to me but I take it into account in the ways urged upon me by your counsel. See paragraphs f. and g. on p4.
Dead Time
78Undeclared pre-sentence detention periods in custody are sometimes called, 'dead time'. The Court of Appeal has said of that phrase that it is a period of time that, with the benefit of hindsight, should not have been served. It is particularly relevant to time spent on remand for charges that are discontinued or withdrawn or for which the person was ultimately tried and later acquitted. So in a setting where there can be no formal s18 Sentencing Act pre-sentence detention declaration.
79Courts may take pre-sentence detention, 'dead time', into account by reducing the base sentence or moderating orders for cumulation to reduce the head sentence. Taking, 'dead time', into account is not some mathematical exercise and the court does not need to reduce the sentence by the precise amount of, 'dead time'. Instead, the court should reduce the sentence by the amount it considers appropriate in the circumstances.
80I am mentioning this only as your counsel pointed to what he said was 101 days of so called, 'dead time', served by you back in 2019. Your counsel placed before me your central records movement sheet. He submitted that you were taken into custody on 1 February 2019 for those offences that were ultimately dealt with on 12 June 2019, remaining in custody until that sentence was imposed at the Heidelberg Magistrates Court on that later date. You got one month's imprisonment with 30 days declared, and so it was argued you had served 101 days more than the pre-sentence detention actually declared on that date and that it was likely that it had never been taken into account at any other stage and that you should get some benefit for that dead time for these completely unrelated crimes committed by you two years later. It was an optimistic submission in that I have no idea at all that it has not been taken into account in a general way, either on that day or on a later time in Court. The fact that there is not reference to a ‘Renzella’[6] type allowance on the LEAP history means nothing at all. I have not in my 12 years as a Judge seen that sort of reference in a Magistrates Court extract or even in formal orders signed out of the County Court. It is the sentencing reasons which will descend to that level of detail and none are available to me. The suggested inference that it has not been taken into account in the past is nothing but pure guesswork. It would depend on what a Magistrate has been asked to do and what he or she then did, and your counsel made it clear he could not say one way or the other whether this period had previously been raised before a Court and taken into account in some way in the past or not. Maybe it has, maybe it has not. For instance, when you appeared at the Heidelberg Magistrates' Court on
17 November 2020. For all I know, it may even have been taken into account in a broad fashion in reaching the view as to a fine being the appropriate outcome for the various Community Corrections order breaches dealt with on the same date that you got the one month in June 2019. Who knows? There have been some strong, and I believe, entirely justifiable criticisms of this notion of an offender having a bank balance of pre-sentence detention to draw upon for future unrelated crimes. See Callaway JA in the case of Kotzman[7] and Weinberg JA in the case of Karpinski.[8] Nonetheless I apply the case law to my task. I do not accept the argument that there should be some credit for that, 'dead time', that you have served. I am not even satisfied on the balance of probabilities that it is, 'dead time', that has not been previously taken into account.[6]R v Renzella [1997] 2 VR 88
[7]R v Kotzmann [1999] 2 VR 123
[8]Karpinski v The Queen[2011] VSCA 94
General
81I now wish to make some general remarks. I am required to take into account a large range of matters including the maximum penalty and the impact of the crimes. Also the gravity of the instant offences. I will come back to this issue of gravity in a short moment. As to the maximum penalties, well, you have heard them read out. 25 years for aggravated burglary and 20 years for intentionally causing serious injury, 10 years for intentionally cause injury. That gives you more than a hint of how seriously Parliament views crimes such as these.
82You heard your counsel mention sentencing practices, and that is because as a Judge I am required to take into account current sentencing practices. As
Mr Barrera correctly submitted, current sentencing practices are only one factor amongst many and they are not a controlling factor.83I have looked at a variety of materials including the Sentencing Advisory Council Snapshots No. 263 for intentionally causing serious injury, 265 for intentionally causing injury and 262 for aggravated burglary, as well as the more up to date online statistics for each offence. I note that the average sentence for intentionally causing serious injury rose to over six and a half years in the year 2020/21.
84I have looked also at the Judicial College of Victoria sentencing case collection of sentences for these various crimes.
85I have looked also at the various cases to which I was referred.
86As is often the case, I was not greatly assisted by looking at other cases. Certainly, in terms of penalties, those other cases say virtually nothing as to the penalties required in this case. There were a range of differing aggravating and mitigatory factors at play in all of them. The case of Barnes& Barnes had very lenient penalties imposed on a person who was complicit but not the main physical actor, and then those very low penalties came strongly into play by way of the pull of parity for the more physically involved player. The case of Nash was the most useful case to which I was referred, in that it reviewed a number of examples of sentences and, far more importantly though, dealt with matters of principle. It is the view of each counsel before me that the intentionally causing serious injury is the most serious of the offences, and I agree that that is so. I will come back to that in one moment.
87It is accepted by each, though, that the aggravated burglary is no minor crime. Plainly it is not when one considers the various factors which are often taken into account in assessing the seriousness of an aggravated burglary. The Court of Appeal in this State has spoken often enough as to the seriousness of confrontational aggravated burglary, which this was. The case of Hogarth[9] was one such case which spoke of the seriousness of that style of offence. That case has been picked up by many others, including cases of Meyers[10] and Bowden[11].
[9]Hogarth v The Queen [2012] VSCA 302; 37 VR 658
[10]DPP v Meyers [2014] VSCA 314; 44 VR 486 (“Meyers”)
[11]DPP v Bowden [2016] VSCA 283
88In those cases and many others since the Court of Appeal has set out what are described as the non-exhaustive considerations relevant to the assessment of the seriousness of the offence of aggravated burglary. I have regard to those matters, though I do not see any need to slavishly set all those criteria out in my reasons. This offence was at night. It was committed upon residential premises. It was confrontational. There was an intention to assault and involved the carriage of an offensive weapon. Intention upon entry and the carriage of a weapon are, of course, elements of the offence. They cannot be doubly counted. You were the motivating force behind this entry. You recruited another with the hint of money. There was plainly a level of planning and, not just that, an understanding on your part as to the seriousness of what was about to be engaged in, given the earlier discussions with Mr Minns. All over a trifling amount of money. It is true you did not force entry or kick the door off its hinges, but this example of aggravated burglary is a long way removed from the lowest level examples coming before the court, and you were on bail at the time. It is true I must not doubly punish you for the crimes that took place following entry, as they are separately charged and the aggravated burglary is complete upon entry. So what occurred after entry does not then heighten the seriousness of the aggravated burglary. See the case of Meyers. See also the more recent decision of Salvaggio.[12]
[12] Salvaggio v The Queen [2022] VSCA 88
89It should not be forgotten that the aggravated burglary here had a number of victims. Not just your actual target, being Mr Burke. He shared those premises with others.
90As to the earlier attack on Mr Minns, it was simply merciless. It involved being admitted into his house. So he had extended hospitality to you, albeit uneasily. He was entirely vulnerable and he was sitting on the floor in front of the couch, playing with his dog. It really was not as spontaneous as your counsel might suggest. You unlocked the door and then entered the room. Without any warning, without any hint of animosity or any hint of any forthcoming violence, you simply took to him with a baseball bat and you delivered multiple strikes to his body, including to his face. He was defenceless. You rendered him unconscious on a number of occasions. I accept that the injuries do fall at a relatively low level, but the mechanism was extraordinary. So too the complete lack of explanation and the fact that you just left him to his own devices. Your culpability was high. It was totally unprovoked and unexpected. As moderate as the injuries were, it is no low level example of intentionally causing injury by any stretch of the imagination, nor does your counsel suggest it is. There is also, as I have spoken of, the sizable impact derived from your crime and you were on bail at the time.
91I turn now then to the most serious of the charges, that is the charge of intentionally causing serious injury.
92Cases such as Lukudu[13] and Evans[14] speak of the importance of general deterrence and the reality of sentences in the high single figures and into double figures for some instances of this crime.
[13]Lukudu v The Queen [2019] VSCA 248
[14]DPP v Evans [2019] VSCA 239
93As I have said already. I was referred to the case of Nash.
94In that case, Priest JA said at paragraph 55, that the circumstances of the commission of this offence are almost infinitely variable and therefore the sentences imposed widely vary. He went on to say that there were cases involving protracted savagery, whilst others were constituted by a single punch. Some involving a variety of weapons. Further, that the injuries widely varied from permanently disabling injuries to others that barely cross the threshold of serious injury.
95I have mentioned the statistics, and they reflect a spread of sentences as one would expect them to, for the reasons pointed out by Priest JA. So there are sentences from between one to two years up to north of 13 years.
96Statistics have inherent limitations. They say nothing at all about the individual features of the other cases. They are silent as to all of the many features of aggravation or mitigation which would explain a particular sentencing outcome.
97Other cases also have significant limitations. They are not precedents, to be followed unless somehow distinguished. There are always differences, as there were in the few cases to which I have been referred or those that I have looked at on the Judicial College of Victoria site.
98Well, what were the differences? Well, there were different mechanisms of injury, different duration of offence or number of blows, different injuries, different impacts, different consequences. Sometimes a weapon or weapons, sometimes not. Sometimes a group attack, sometimes a single offender. Sometimes provocation, sometimes not. Differences in so many other areas, including whether there is remorse or not, the stage of the plea, the prospects of rehabilitation and the existence or otherwise of a criminal history. Youth is often a factor that is brought to the fore. See, for instance, the case of Jawahiri.[15] It is not present in your case.
[15]Jawahiri v The Queen [2021] VSCA 287
99Further, there is no such thing as one correct sentence, and another Judge in any of these other cases that I have looked at might permissibly have imposed a different sentence, either a higher one or a lower one.
100I note though, that sentences have increased for this crime. See the case of Lukudu at paragraph 46. Some of the statistics bear that out as well.
101What I have got to do is pass an appropriate sentence in your case..
102That is an outcome which will never be driven by what has happened in other cases, or by what the statistics disclose as to what has most commonly been done in the past or what the median or the average sentence might be. They are just statistical terms and they do not inform my task. I am exercising a sentencing discretion.
103I have to take into account the various purposes of sentencing.
104Rehabilitation is one such purpose. I do not ignore that purpose. You have some prospects of rehabilitation but it is not the only purpose of sentencing. Given the seriousness of your offending, and your past failures to take any chances offered, rehabilitation surrenders some ground to the other sentencing purposes including deterrence, community protection and punishment.
105Punishment is an important sentencing purpose. That is conceded. You must be punished for your crimes, justly and proportionately.
106I must also denounce your conduct. That is an important purpose of sentencing for crimes as serious as these. This was outrageous behaviour.
107Community protection is an important purpose of sentencing. This was startling offending on two separate occasions. It was totally unprovoked on each occasion. There was planning in terms of the offending on Mr Burke. Each victim was attacked in what should have been the safety of their own home. Each attack was quite brutal.
108As to Mr Burke and that attack, you could easily have killed him and over what? $70 or $100. It’s quite incredible really.
109It is possible you were affected by drugs at the time of each crime. It is hard to know one way or the other as I do not accept your account of the offending. However, I note that you were rambling when speaking to Ms Blanke. Perhaps there was some disinhibition arising from drug use. If there was, and that is, 'if', it would not be in any way mitigatory. Nor though, could I treat it as an aggravating factor.
110Specific deterrence is another matter of importance here. This relates to the need to deter you. You must be deterred from offending in the future. Courts have tried to lead you away from crime and to deter you in the past and with limited success. Prison has not deterred you in the past either. You have been in custody now for the longest period and in tough conditions and that period, as well as the large period which lies ahead, will surely have a sizable role in deterring you in the future. There are also signs that you might be amenable to change, as spoken of in the references and your efforts whilst in custody. Still you must be deterred. You must never act in this way again.
111General deterrence relates to the need to deter other future potential offenders. It is an important sentencing purpose for all of these crimes. The courts have a role in deterring other people in the community who might be minded to commit this type of serious offence of violence as represented by the intentionally causing serious injury. We are sick of those who think it is open and appropriate to carry and to use weapons such as knives. The use of a weapon raises the stakes very considerably, as it did here. The message must be sent loud and clear to likeminded potential offenders that this sort of serious crime of violence will be met with strong punishment.
112In the same way I must send a message to those who might be intent upon entering another’s home and committing a confrontational type aggravated burglary such as yours. It is a serious crime to enter residential premises as a trespasser intent upon assaulting someone within. The Court of Appeal has spoken frequently enough and loudly enough about the seriousness of confrontational aggravated burglary. I must deter other likeminded offenders.
113I have to pay regard to the gravity of the offences before the court. I have spoken already of the seriousness of the aggravated burglary and the intentionally causing injury.
114As to the intentionally causing serious injury, Mr Barrera submitted that this was a mid or, as he put it, a 'moderate', offence. The prosecutor submitted that one could almost always hypothesise a more extreme or serious example of a crime but that this one had enough features of aggravation to be judged as approaching the high end of seriousness.
115These sorts of submissions where adjectives or labels are applied by one party or the other to describe where a crime might fit on the spectrum of offence seriousness, are prone to be misunderstood. No one is saying intentionally causing serious injury is anything other than a serious offence. Intentionally causing serious Injury is an inherently serious crime with a maximum prison term of 20 years.
116This constant quest to place an offence as though with some mathematical precision onto some spectrum of offence seriousness is greatly overrated, in my judgment, nor, for that matter, is it uniformly approved of. See the case of Weybury[16].
[16]DPP v Weybury [2018] VSCA 120
117It seems to me it is much more valuable to look at what you actually did.
118You used a knife, and you used it to repeatedly stab an unarmed and defenceless victim in his own home. Over nothing. There had been no forewarning at all. You shook his hand then launched a physical attack firstly by fist and then by a knife which you had carried offensively at the time of entry, and which at some point you had taken out, unfolded and then used. No hint to your victim that such violence lay ahead. It just exploded upon him. He was for that reason vulnerable. You were armed with a knife. There had been a plan to assault him. The aggravated burglary relates to that armed entry as a trespasser. Nonetheless, of course, the venue is a relevant consideration. He was in his own home. He should have been safe there. Multiple stabs and to dangerous or vital areas of his body, most of them. Deep blows. You came perilously close to killing him. Your offence falls comfortably above mid-level in my view. Plainly, it is a serious example of this serious offence.
119Serious injury is defined as, 'injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted’. Well, your victim was left in a critical condition. You just walked away. He had life threatening injuries and would likely have died but for the swift treatment obtained. He had to be evacuated by air ambulance to Melbourne. Very luckily for you, he survived. Very luckily for you, he has made a decent recovery and is not left with any residual physical issues other than some scarring.
120As I said a moment ago, when dealing with the wide variation of offences captured by this crime, some can be caused by a single punch. Some with injuries which just barely cross the threshold of the definition of serious injury. That is not what I am dealing with here. I am dealing with multiple knife wounds to vital areas committed upon an unarmed man at night in his own lounge room.
121Critical injuries resulted, and unlike a single punch where there can sometimes be a disconnect between the injuries intended and those actually produced, that cannot be said for a man repeatedly stabbing a knife into the chest of another man. There was no disconnect at all between the mechanism that you used and the actual serious injuries caused. Your victim did not fall to the ground, for instance, and sustain a serious injury in that way by a head strike.
122This was a deliberate, ruthless, armed attack. I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.
123The Court of Appeal had a fair bit to say about the use of a weapon, the context of the offence and the severity of injuries, at paragraph 35 to 40 and 46 of the case of Lukudu, to which I have referred.
124As I have said, and as you know, these injuries could so easily have proved fatal but for the prompt medical attention and a fair dose of luck actually. As a Judge of this Court, regrettably, I do see from time-to-time injuries that are far more catastrophic than these in terms of their ultimate physical residual effect. So injuries, if you like, with a much greater lasting impact. We, as judges, see some hapless victims who are reduced to a highly compromised, even a dependent state, as a result of a brain injury. We see some unfortunate victims who have sustained spinal injuries. They might be wheelchair bound for life with all of the massive adjustments to be made in the life that stretches out ahead of them. I am not dealing with those sorts of impacts here. That is obvious.
125But the serious injuries which I am dealing with were of a very high level in that they so easily could have proved to be fatal. Well, very luckily, that was not the ultimate fate for Mr Burke. These serious injuries were of a high level, they could so easily have proved fatal, and the mechanism, an unexpected armed attack with multiple stabs to his chest, was pretty extreme. The crime, viewed objectively, is, in my view, a serious example of the crime of intentionally causing serious injury.
126Fortunately for you and for Mr Burke, as dangerous as his injuries were on the night, and as serious as the immediate impacts obviously were, this case does not have those catastrophic impacts that I mentioned a short time ago, such as a lifetime of dependence brought about by a serious brain injury or something from which a victim cannot physically recover. Happily, that has not been his fate. You are the lucky beneficiary as well, for it is only for that reason that you avoid the imposition of a sentence travelling into double figures for this offence alone.
Totality
127I pay regard to totality of sentence. I accept the submissions that the intentionally causing serious injury is the most serious of the crimes. There is the overlap with the aggravated burglary in that you committed the aggravated burglary to enter premises to assault Mr Burke. You then committed the offence within the house, being the intentionally causing serious injury. Not every aggravated burglary leads into another crime. This one did and a serious crime at that. The aggravated burglary itself was a serious criminal offence, not affecting only Mr Burke. You entered those premises as a trespasser with intent to assault, carrying with you a knife and knowing there were people within. It is a serious, separate crime with separate impacts and must attract a decent level of cumulation.
128As to the crime committed upon Mr Minns, well, that was a crime targeting a totally different victim and one committed 10 days before at a totally different location. It had no connection at all to the later offending. It was a serious crime worthy of quite separate recognition. The need for sizable cumulation is clear enough to me.
129Parsimony is a fundamental sentencing consideration. The court must not pass sentences which are more severe than that which are necessary to achieve various purposes of sentencing. I am conscious of the need to avoid a crushing outcome upon you. I must consider whether the sentences and the effect of them is commensurate with your overall criminality. I have taken a last look the sentences and their overall effect. The fact remains your criminality was high. There is no reduction in your culpability as there sometimes is, arising, for instance, where there is youth or some mental health consideration in play. There is nothing like that here. You were a mature offender, committing objectively serious crimes upon multiple victims and, regrettably, a very substantial prison term is the only proper response available to me.
Forfeiture
130There is application for forfeiture of the knife. That is sought pursuant to s78 of the Confiscations Act. There is no issue taken with the making of this order. I am satisfied that the order is appropriate. In the circumstances I will attach my signature to that order and in abbreviated fashion direct that the items referred to in the schedule, the knife, be forfeited to the State, be placed into the Chief Commissioner's custody and dealt with by him in the matter contemplated by the signed order
131Let me then deal with the sentences.
Sentence
132Charge 1, which is the charge of intentionally causing injury to Mr Minns, I convict and sentence you to two and a half years' imprisonment in relation to that charge.
133On Charge 2, aggravated burglary, I convict and sentence you to four years' imprisonment.
134On Charge 3, intentionally causing serious injury to Mr Burke, I convict and sentence you to eight years' imprisonment. That will be the base sentence.
Summary Offence
135On the summary offence of committing an indictable offence on bail, I convict and sentence you to seven days' imprisonment. As I have viewed it as a feature of aggravation that you were on bail at the time of the major offences, I do not believe it is appropriate to cumulate that seven days or make orders for cumulation beyond those which I will announce shortly. That would involve an aspect of double punishment, and I otherwise direct under s16(3C).
Cumulation
136The base sentence therefore is the eight years imposed on Charge 3. I direct that 15 months of the sentence imposed on Charge 1 and 15 months of the sentence imposed on Charge 2, will be served cumulatively upon the base sentence and upon each other. As I have said, the seven-day term on the summary offence will be served concurrently with all other sentences.
Total Effective Sentence
137These orders result in a total effective sentence of 10 and a half years' imprisonment.
Non-Parole Period
138I have to fix a non-parole period. I can make no assumptions as to whether you will be released on parole and in fact I am prohibited from speculating on that issue at all. That will be entirely in the hands of the Adult Parole Board.
139I fix a period of seven and a half years during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
140You have already been in custody already for a period of 435 days and that
s18 declaration is entered into the records of the Court.Section 6AAA
141I have taken into account your guilty plea. If you had pleaded not guilty and had been found guilty of these offences by a jury, I would have sent you to prison for 13 and a half years. I would have fixed a non-parole period of
10 and a half years, and that declaration made under s6AAA of the Sentencing Act is also to be entered into the records of the Court.142Let me just see if there any other matters. Firstly to you, Mr Prosecutor, any other matters from your perspective?
143MR WHITE: No. Now that the disposal order is made that is everything from my perspective.
144HIS HONOUR: All right. Mr Barrera, any other matters from your perspective?
145MR BARRERA: No, Your Honour.
146HIS HONOUR: Just bear with me. It is possible along the way that I have misstated the maximum penalty in terms of the aggravated burglary. If I said 20 years, obviously it is 25 years as I am keenly aware of that, but look, I will review my sentencing remarks and revise them in due course. All right, let me just see. How long have we got this link for then, Ms Todisco?
147ASSOCIATE: Until 3.45.
148HIS HONOUR: 3.45, all right. Mr Barrera, are you wanting to do what you did the other day and use the link for some period of time or not? It is up to you. If you want to, you can.
149MR BARRERA: If it will not cause inconvenience to the court, yes, please, Your Honour, just briefly.
150HIS HONOUR: All right, that will be fine, but you will be hosting it, so you use it for whatever time you want to use it for. I think we have got it - the link exists until 3.45. So it does not involve my staff. Once it is set up then you will be able to exit when you want to exit.
151MR BARRERA: I am grateful, Your Honour.
152HIS HONOUR: That completes the matter then. As I say, I will revise these reasons in due course. That will take a little bit of time. I am not particularly well at the moment. I am home with COVID at the moment myself and then I think I am disappearing off on leave with any luck, so I will be back on deck to revise these towards the end of July I am afraid, but I can deal with an unrevised request if one is forthcoming. Let me just see. Mr Carbis, stay put where you are then and you will be in a room where you will be free to speak confidentially to Mr Barrera, all right? So he will discuss what has occurred here today and your rights in relation to that sentence, all right?
153OFFENDER: Thank you, Your Honour.
154HIS HONOUR: That completes the matter then.
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