Director of Public Prosecutions v Casey

[2024] VCC 256

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02381

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDAN CASEY

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2024
DATE OF SENTENCE:	8 March 2024
CASE MAY BE CITED AS:	DPP v Casey
MEDIUM NEUTRAL CITATION:	[2024] VCC 256

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  

Cases Cited:Lukudu v The Queen [2019] VSCA 248; Azzopardi v The    Queen [2011] VSCA 372; 35 VR 43 ; DPP v Green [2020] VSCA 23; Gumwel v R [2016] VSCA 14

Sentence:  Four years imprisonment, non-parole period of two years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Balkin	Office of Public Prosecutions
For the Accused	Mr R. de Kretser

HIS HONOUR: 

1Edan Casey, you have pleaded guilty to one charge of intentionally cause serious injury pursuant to s16 of the Crimes Act which carries a maximum penalty of 20 years' imprisonment.

2Intentionally cause serious injury is a Category 2 offence under the Sentencing Act.  I am required to impose a term of imprisonment unless circumstances specified in the Act had been made out.  Your counsel did not submit that special circumstances exist in your case.

3Accordingly, you understand that a period of imprisonment is inevitable.  

4You have a minor and irrelevant criminal history, and no subsequent matters.

Circumstances of Offending

5The Crown tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows:

6In earlier times, you and victim, Mr Dylan Shaw, had been friends.  Then, in late 2021 you had a falling out when you started a relationship with Ms Elise Saunders.  Mr Shaw and Ms Saunders had been seeing each other before that time.  Mr Shaw took the break-up badly.  The prosecution alleges that you messaged Mr Shaw with photos of you and Ms Saunders kissing.  The defence produced messages from Mr Shaw which were sent to you which were plainly hostile, aggressive and threatening.

7Nevertheless, this was not the atmosphere at the Upwey RSL on 22 September 2022.  On that occasion, you arrived at the RSL with four friends at about
2.35 pm.  Your group moved to around the fire pit in the beer garden.  One of your number invited Mr Shaw to join you and to put previous tensions behind you all.  Mr Shaw arrived just before 4 pm.  He shook hands with you all and took a chair next to you.  CCTV footage shows you all interacting in a friendly manner.  You appear to have been chatting to each other throughout the afternoon. The prosecutor stated that the CCTV footage shows you two variously hugging and sharing a vape.

8From there, Mr Shaw stated to you that he did not like the photos and messages you had sent him.  This angered you; you walked towards the back of the RSL and Mr Shaw followed.  You picked up a barstool and held it as if you were going to hit Mr Shaw with it.  You were ordered by bar staff to put it down.  You gestured to Mr Shaw and pushed him in the chest.

9You moved out of the RSL into the car park where your ute was parked.  Two of your mates were with you.  You looked through the toolbox using the torch on the phone and you found a box cutter/Stanley knife.

10Mr Shaw approached you and asked you what had just happened a moment ago, stating that everything was fine until just a few minutes before.

11I make the observation from the CCTV footage that Mr Shaw was unarmed.  
Mr Shaw was not approaching in an aggressive manner, and in my view, he was taken completely by surprise at what happened next.

12You turned off the torch on your phone and you moved the box cutter to your right hand.  Mr Shaw got within about a metre of you and without warning or words, you pushed past your friends and you slashed Mr Shaw across the left side of the face in a downward motion using the box cutter.  Mr Shaw hunched over.  You intended to slash him a second time but you were held back.

13One of your friends took the box cutter from you and threw it on the roof of the 7-Eleven next door.  You paced up and down and you were generally restrained by your friends.  You approached Mr Shaw and warned him not to 'lag'.  You drove off.

14Mr Shaw was taken to hospital where he underwent repair and plastic surgery.  He suffered:

(a)  A full thickness lower lip laceration;

(b)  His zygomaticus muscle was split lengthways; and

(c)  40 stitches to his face and lip.

15Mr Shaw’s parents reported the matter to police on 23 September 2022.  You were arrested that same day.  In an interview with police, you told police that you had a history of incidents with Mr Shaw.  You said that Mr Shaw was being a 'smart arse' before the attack.  You stated that you were 'pretty pissed' at the time the attack and that obviously you got him with the knife.

16Before I remanded you, you had served no presentence detention.  I note you have now served ten days pre-sentence detention excluding today, which I will reckon as already served.

17On 24 September 2022, three young men broke into your father’s home and assaulted your father and frightened and threatened your girlfriend.  You were not home and you did not witness the event.  The intruders demanded your father and girlfriend tell them where you were.  One of the intruders stated that they were acting because of what had happened to Dylan.

18It is not suggested that Mr Shaw was in any way involved.  No one was charged over this matter.

19This matter resolved to a plea of guilty on 15 December 2022.  The plea was listed for hearing on 27 June 2023 but was adjourned to enable the defence to obtain a psychological report and to allow you to finish the trade school aspect of your carpentry qualification.

20The matter then came before me on 27 February 2024.

Objective Gravity and Moral Culpability 

21I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.

22The maximum penalty of 20 years' imprisonment readily shows how serious the offence of intentionally causing serious injury is regarded.  This is underlined by the mandatory imposition of imprisonment for a Category 2 offence unless an exception is established.

23Your offending is a serious example of this offence.  In the case of Lukudu,[1] the Court of Appeal set out some of the principles on which the objective seriousness of an instance of this charge may be determined.

[1]Lukudu v The Queen [2019] VSCA 248.

24First, you sought out and used a weapon.  The weapon you chose was a box cutter/Stanley knife.  Although this weapon usually has a relatively short blade, the blade is strong and razor sharp.

25Next, I must take into account the circumstances in which the knife was obtained and used.  Despite the submissions made by your counsel Mr de Kretser in his outline of submissions, I conclude that there was no provocation offered by Mr Shaw in his remarks to you before the attack.  There was nothing submitted or suggested on the plea from which I could conclude Mr Shaw had acted in anything but a friendly manner towards you.

26As I remarked at the plea hearing; in the CCTV footage shown, over a minute, and closer to a minute and a half, passed between you moving to the back of the ute, you looking for and obtaining the knife and Mr Shaw approaching.  When he did, you were the aggressor.  There is no question that you engaged in a disproportionate defensive response because Mr Shaw did not approach under any apprehension that violence would ensue; let alone that you would produce and use a knife.

27Of course, I am not satisfied that you went to the RSL with the intention of attacking Mr Shaw but I am satisfied that you formed such an intention when you went out the back of the RSL to your car to look for a knife.

28In fact, you had every opportunity to go to your car and leave.  Instead, you struck by surprise, like a coward punch, and went to strike again whilst the victim was not only still defenceless but rendered helpless by your first blow.  Fortunately, others stopped you.

29I take into account of the nature of the injury.  Both counsel submitted that it was a serious injury because of the protracted nature of the recovery.  You left your victim with a lifelong disfigurement; he still has some restriction and it seems also some loss of sensation. Fortunately, the injury was not
life-threatening and Mr Shaw has been able to return to work.  However, the position of the scar on his left cheek serves as a prominent daily reminder of your vicious, cowardly criminal attack.

30I received the victim impact statement of Mr Shaw.  Mr Shaw stated in the statement made in June of 2023, so quite some time ago, that to that point he was still losing lots of sleep and struggling with his identity.  He had a fear of going out and out in large crowds.  He felt that he was constantly vigilant.  At that time he was still struggling with the fact that he had the scar on his face for the rest of his life serving as a constant reminder every time he looked in the mirror and he said that he had difficulty smiling because of the nerve and muscle damage caused to his face.  He suffered a financial impact because he had four months off work and the social impact as at June of 2023 had also been enormous.  It had impacted adversely on his relationship with his friends and family.

31In the circumstances I am satisfied that:

(a)  You gave your actions some thought before you carried them out;

(b)  That required some action on your part to go to find the knife and to arm yourself with it;

(c)  I am satisfied your victim approached you unarmed and unsuspecting;

(d)   I am satisfied that you intended to, and acted to catch him by surprise; and

(e)  By your use of such a weapon and the means by which you used it you intended to cause him serious injury.

32The Crown submits that I should view your offending as falling at about mid-range.  In my view, there is no need to further categorise the seriousness of your offending.  The facts, and my analysis of the objective seriousness of your offending speak for themselves.  Your moral culpability is high.

33Your offending must be met by principles of general deterrence, just punishment and denunciation.

Personal Circumstances

34You are 22 years old, being born in September 2001.

35You are an only child.  Your father is now retired but previously worked as an Australian Border Force Officer and your mother is a mental health specialist.

36By all accounts you were raised in a loving, law-abiding family in a positive environment.  You reported an unremarkable personal history to Dr Barth and maintain a close relationship with both your parents, who remain supportive of you.

37You attended local primary schools in the south-eastern suburbs of Melbourne before moving to Salesian College from Years 7 to 9 of high school.

38You developed behavioural problems at school and began to struggle academically, and you were asked to leave Salesian and you moved to Upwey High School from Year 10.  You report to Dr Barth that you transitioned in a positive manner, however, you did not improve academically.  You left school halfway through Year 11 to commence a trade.

39You commenced using alcohol at approximately 16 years old in a social setting. You report that you would often binge and this was a common feature of your friendship group.  Between the years of 17 to 20 years old you admit that you abused Valium and experimented with other substances such as cocaine and MDMA.  By your own admission during this period of your life you were 'hanging around with the wrong people'.

40Your first romantic relationship developed in the wake of this and was characterised by your mutual substance abuse.  You are now, however, in a long-term relationship with Ms Elise Saunders, having been together since 2021.  You describe the relationship as positive and until your remand you lived with Ms Saunders and her mother.

41You are currently in the third year of your carpentry apprenticeship and remained gainfully employed with a construction company until your remand. You have ambitions to establish your own company in the future upon the completion of your sentence.

42As I have stated, you used the time in 2023 to finish the trade school component of your apprenticeship, and you now only have a year of work training to qualify.

43I have received a number of character references from your family and employer.  Those who know you intimately have all referred to this incident as extremely out of character and an aberration from your normal self.  Your references describe you as generally polite, considerate and not aggressive in nature.  Your employer Mr Sutton notes that you are a hard worker who is highly regarded throughout the job sites you have worked on.  In particular, your family all refer to your selfless nature, noting the substantial emotional and financial support you have provided to your partner’s mother in the wake of her cancer diagnosis.

44I received a letter of apology from you for your actions.  I am satisfied that, at least to some extent, you are sorry for what you did.  

45It is apparent that you have good pro-social supports, which you will need on your release from custody.  Furthermore, you have a good employment record and with the wise use of your time leading up to your remand, you have almost finished your apprenticeship.  You should be able to return to carpentry upon your release.

46I read the report of Dr Matthew Barth dated 1 November 2023.  Dr Barth reports that you presented as an unsophisticated and relatively immature man for your age.  Your verbal skills and demeanour were more like those on his assessment of a teenager.

47Dr Barth considers your insight into your emotions is superficial. You have difficulty identifying when feelings of anger are developing.  Dr Barth considers that you are easily provoked to a hostile demeanour when challenged and this contributed to your aggression on the night.

48Dr Barth recommends that you receive anger management treatment and alcohol education and counselling.  Dr Barth notes that you have stated that you would welcome such treatment.

49Overall, Dr Barth considers that, despite your present lack of real insight into your emotional development, the fact that you have positive family support and a strong work ethic contribute to positive prospects for your rehabilitation, so long as you receive the required treatment and counselling.

Sentencing Submissions

50Mr de Kretser of counsel who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

(a)Your early plea of guilty, youth, remorse, delay; during which you used the time positively to complete trade school, you kept your employment and there was no further offending, should all mitigate your sentence;

(b)You have suffered extra curial punishment through the home invasion that has affected family members;

(c)You should get the benefit of the principles in the Court of Appeal case of Worboyes because you entered your plea of guilty when the court was still affected by the COVID-19 pandemic backlog of cases; and

(d)That your prospects of rehabilitation are good, you have prosocial supports available to you and you have a career to return to.  As such, Mr de Kretser submitted that whilst a period of imprisonment was inevitable, a longer than usual parole period should be imposed.

51Ms Dane who appeared for the Crown submitted that the only appropriate sentence is a head sentence and non-parole period.

52The Crown concedes that your plea of guilty was made at the earliest stage at committal mention and that you are entitled to a sentence discount and that the timing of your plea attracts the principles of Worboyes.

Analysis

53I am satisfied that the plea of guilty was made at an early time.  Moreover, I am satisfied that you have used the time since June 2023 in a most positive manner and I was assisted by Dr Barth’s report.  The plea of guilty has utilitarian benefit; it especially saves the need to cross examine Mr Shaw and the running and listing of a trial at a time when the court was working under the strain of the backlog of cases caused by the COVID-19 pandemic.

54I have already remarked that I consider that you have some genuine feelings of remorse and that these contributed in part to your plea of guilty.

55I take into account your youth - that is, your young age at the time of the offending and the fact that you are still a young man now. The case of Azzopardi[2] sets out the three principles which must be taken into account in sentencing young offenders.  First, the court must take into account that young offenders may make rash, immature decisions and act rashly on them.  Dr Barth has clearly found that, because of your immaturity and lack of sophistication, you are prone to this, and I find that that was a factor in your decision making on the night of this attack.  Second, the Court of Appeal warned of the undesirability of young men falling under the influence of more hardened criminals in the prison environment.  Third, the Court of Appeal observed that, at a young age with your life ahead of you your rehabilitation prospects are presumed to be good. In your case, based on all material presented to me and taking into account Dr Barth’s opinion, I am satisfied that, with the recommended treatment and counselling, your prospects for rehabilitation are indeed positive.

[2]Azzopardi v The Queen [2011] VSCA 372; 35 VR 43.

56Of course, the Court of Appeal also observes that in some instances, the seriousness of a young person’s offending means that the mitigating factors that I have set out must take something of a back seat.  In your case, Mr Casey, I find that the balance of the factors which mitigate your offending and the objective seriousness of the crimes you have committed must be given some prominence but I will not lose sight of the seriousness of your offending.

57On the question of the extra-curial punishment submitted by Mr de Kretser, although I heard of the hurt and fear that your father and girlfriend suffered in the home invasion, I do not consider that it stands as a measure of extra-curial punishment that you have suffered or that it should particularly influence my sentencing decision.  I simply put it in the mix of your background circumstances and I emphasise again that I do not hold Mr Shaw or his family in any way responsible for the actions of those intruders.

58I do not consider that the submission of 'plea in the face of a triable issue' submission can lead to any significant measure of mitigation. There is no question that you were responsible for attacking Mr Shaw with a knife.  Before I allowed you to enter a plea, I questioned both counsel on the basis of which the injury was categorised as a 'serious injury'.  Given the assurance of both counsel, I was satisfied that you caused a serious injury and that the plea of guilty was properly entered.  The triable issue between serious injury and injury was therefore only marginal at best.

59I was referred to a number of cases for comparison.  Mr de Kretser referred to the sentencing decisions of DPP v Green,[3] a sentencing decision of Judge Smallwood, where a 55-year-old man was sentenced to 30 months with 9 months to serve, where he struck his victim with a metal object and the victim was placed in an induced coma for two weeks.

[3]DPP v Green [2020] VSCA 23.

60I was referred to the case of Gully where a sentence of 2 years with 15 months to serve was imposed.  Wilford, which was a bottle to the head causing scarring to the face, where the offender was sentenced to 3 years with 21 months to serve.  I was referred to Peseka where three and a half years with two years two months was imposed by Judge Karapanagiotidis for stabbing a victim and the case of Chol.

61By contrast, the Crown referred to the case of Lukudu, to which I have already referred, to the case of Gumwel,[4] Arnott and Kumar.  Research conducted by my staff discovered the case of May-Jordan where a young man in 2017 was sentenced to three years 10 months with a minimum of two years for intentionally cause serious injury - before it became a category offence.

[4]Gumwel v R [2016] VSCA 14.

62In the end my sentencing consideration must not be overly influenced by sentences imposed in other cases.  I must assess the objective gravity of your offending, take into account the dominant sentencing objectives and balance them, so far as the law allows, against your personal circumstances to arrive at a sentence appropriate to this case.  I also take into account that in the case of Lukudu, which was an appeal heard in 2019, the Court of Appeal said that the sentences for these types of cases is rising. 

63I am sorry, Mr de Kretser, Mr Casey, Ms Balkin, I am just going to stand down for one moment.

(At a later stage).

64Thank you.  I make the observation that both May-Jordan and Judge Wraight's case of Wilford were heard before the announcement in Lukudu.

65I will say this in advance of the sentence that I am about to announce,
Mr Casey.  I do consider that, taking account of your personal circumstances and, in particular your young age, that a longer than normal parole period should be allowed.  What that means for you, Mr Casey, is that you must work hard in the non-parole period of your sentence, that is the period that you must serve before you can apply for parole to ensure that you work towards the grant of parole at the earliest allowable time.  That means that you must comply with all prison rules and complete all necessary courses.  If you are granted parole, it will provide you with the supervision and structure to reintegrate back into the community after your release.

Orders

66Accordingly, on Charge 1, the charge of intentionally cause serious injury, you are convicted and sentenced to period of four years' imprisonment.  I order that you serve two years' imprisonment before you are eligible for parole.

67I declare the period of 10 days' pre-sentence detention excluding today reckoned as already served.

68The 6AAA declaration is but for the plea of guilty I would have imposed a sentence of six years with four years to serve.

69Ms Balkin, are there any ancillary orders sought?

70MS BALKIN:  Yes, Your Honour, the disposal order for the Stanley knife.

71MR de KRETSER:  Not opposed, Your Honour.

72HIS HONOUR:  No objection to that?  Thank you.  Mr de Kretser, are there any matters you need to raise?

73MR de KRETSER:  No, Your Honour.

74HIS HONOUR:  Thank you.  Mr de Kretser, do you want the opportunity to speak to Mr Casey over the link?  I can take everyone else out.

75MR de KRETSER:  I will speak to him briefly and just let him know the arrangements but I'd be grateful for a very short period with him, Your Honour.

76HIS HONOUR:  All right.  Thank you, I will adjourn now.

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