Director of Public Prosecutions v Cholodniuk, Luke
[2013] VCC 33
•31 January 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-02180
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE CHOLODNIUK |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2012 & 21 January 2013 | |
DATE OF SENTENCE: | 31 January 2013 | |
CASE MAY BE CITED AS: | DPP v Cholodniuk, Luke | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 33 | |
REASONS FOR SENTENCE
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Catchwords: Plea – sentencing - recklessly causing serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Ms M. Zammit Mr M. James | Office of Public Prosecutions |
| For the Accused | Ms Z. Broughton | Pica Criminal Lawyers |
HIS HONOUR:
1 Luke Cholodniuk, you have pleaded guilty to one charge of recklessly causing serious injury. This offence carries a maximum penalty of 15 years' imprisonment.
2 You are presently 35 years of age, having been born on 10 September 1977, and you were aged 34 when this offending occurred around nine months ago.
3 You have an extensive criminal history, about which I will go into more detail later.
4 The victim is your younger brother who was 25 years old at the time of the offence.
5 At about 5 pm on 23 April 2012, the victim and a friend attended at the 7-Eleven store in Williamstown Road, Newport.
6 While they were in the 7-Eleven store you entered the store and a heated discussion then ensued between you and your brother. He walked out of the store and sat in the driver's side of his car, being a black Toyota Celica. You followed him outside and stood next to the driver's door, where the argument continued.
7 You had an umbrella with you and threatened to stab your brother with it. He became scared and reversed his car in order to leave the car park. As he was reversing the car you walked towards it. As he put the car into drive and drove forward towards you, you jumped out of the way. As a result he drove into the gutter.
8 You walked up to the open driver's side window and used the umbrella you were still holding to hit the victim several times to the head area. He got out of the car and then managed to wrestle the umbrella from you and snapped it in half.
9 The two of you then fought in the car park until you walked off. After you walked off, the victim retrieved a tyre iron he had in the boot of his car and followed you.
10 He located you outside an IGA Supermarket. He stopped his car and confronted you. The two of you then continued your physical fighting, with you punching your brother and him using the tyre iron, and he hit you numerous times to the head.
11 He then left the area and attended at the Altona North Police Station at about 6 pm, in the company of his mother, to report the assault. The victim told police he felt a little light-headed and was advised by police to go to Williamstown Hospital.
12 The victim and his mother arrived at Williamstown Hospital at about 6.30 pm. Upon arrival, the victim was assessed by a triage nurse and told to wait in the waiting area. The victim and his mother were sitting in the waiting room with other members of the public.
13 Just after 7 pm, you walked into the busy waiting room of the Williamstown Hospital and said "Ah, I thought I'd find you here". The victim told you that he had spoken to the police and that he had a restraining order against you. His mother also told you to go away and yelled out for someone to get security.
14 You left the hospital waiting area. The receptionist at the hospital called security. As she was on the telephone, you returned to the waiting area with your wife. You told the receptionist "You can call the police because he ran me over".
15 You and your wife walked over the victim and started hitting him. The victim grabbed your wife's hands and you walked around to the back of the victim and stabbed him in the back, with an unknown object, near his left shoulder blade. The victim yelled out "I've been stabbed".
16 You then held your hands up in the air and said "I didn't stab you. I don't know what you're talking about." You and your wife then left the hospital.
17 The victim had difficulty breathing and was attended to by nursing staff. It appeared that the stab wound had caused a tear in the victim's lung, and he was transferred to the Alfred Hospital by ambulance.
18 The victim was treated at approximately 10.10 pm at the Emergency and Trauma Centre at the Alfred Hospital. As a result of the offending, the victim received a penetrating wound to his back near the left shoulder. The stab wound caused the victim to suffer from a collapsed lung, otherwise known as "pneumothorax", and he was required to spend four days in hospital.
19 You were arrested on 29 April 2012 and were transported to the Altona North Police Station, where you participated in a DVD-recorded record of interview. You gave answers of "No comment" to the allegations.
20 You pleaded guilty to the charge appearing on the Indictment on the morning of the contested committal and before any evidence was called.
21 You were remanded in custody after your arrest. However, on 15 October 2012 you were sentenced for other offences to a total effective sentence of 18 months' imprisonment with a non-parole period of nine months. On that day, for that offending, pre-sentence detention of 169 days was declared, the starting date being 29 April 2012.
22 Therefore, for this current offending, you have no s.18 pre-sentence detention available.
23 I now turn to your personal circumstances.
24 You are now 35 and were 34 at the time of this offending. You have an extensive criminal history, with your first appearance in an adult court when you were 17. Thereafter you have accumulated convictions for offences relating to violence, theft, robbery and illicit drugs. There have been breaches of community orders and of suspended sentences of imprisonment.
25 You report being a victim of sexual abuse when you were six and left home at 11 after witnessing, and being a victim of, your father's violence. You lived in the open or in abandoned houses.
26 Employment has been restricted to unskilled roles, often of short-term duration given ongoing substance abuse. You did return to school for some periods and eventually obtained a Year 10 pass.
27 You met your now wife whilst homeless, and she had a child by you when you were 15. With the assistance of your wife's family you have cohabited with your wife from mid-adolescence until your current placement in custody.
28 Your life history is very unfortunate and is informed by your underlying mental health condition. The most recent report tendered has confirmed that you suffer schizophrenia, with auditory hallucinations commencing at the age of eight.
29 You have also developed a longstanding history of illicit drug use commencing with cannabis at age 15, amphetamines from 23 and heroin from 25. You had been drinking Vodka and beer and had injected heroin on the day of the offence, and had not taken prescribed methadone.
30 I am satisfied that you suffer from a serious impairment of psychological functioning co-existing with a serious poly-substance drug addiction. You have been treated at various times, from when you were quite young, with anti-psychotic and anti-depressant medications. There have been times of suicide ideation. At times this has included inpatient care.
31 Whilst in custody you have remained drug free and have attended Alcoholics Anonymous meetings. You have expressed the intention of remaining drug free.
32 In mitigation, I accept that you have had a difficult life, you pleaded guilty at the earliest stage, the ultimate assault occurred in the context of an earlier dispute with the victim when you were hit on the head, you have expressed remorse, have the support of your family, particularly your mother and father, you have applied yourself conscientiously to rehabilitative programs whilst in custody and the offence was committed in the context of a longstanding poly-substance addiction co-existing with schizophrenia.
33 The offence you have committed, however, is very serious. Your conduct involved engagement in a continuing altercation with your brother. Notwithstanding that you also had been struck during the continuous episode, you had time to reflect and consider, but instead of withdrawing and perhaps even reporting the matter yourself, you took retributive action in a public place, being the hospital, whilst the victim was already affected by the earlier incident, and you struck with an object in a manner which had the potential to be fatal. Your victim clearly would have endured substantial pain and was seriously hurt, requiring hospital care.
34 Given the circumstances of the current offence and history of offending, principles of specific deterrence as well as general deterrence remain necessary for emphasis. Whilst there is no clear evidence that your offending was in any direct way connected with schizophrenic illness, and thus your moral culpability is not reduced, I accept that some moderation may be applied to general and specific deterrence because of your mental health and longstanding drug addiction.
35 I also accept that, notwithstanding that to date you have apparently settled appropriately in custody, your mental health condition is likely to mean that a sentence of imprisonment is likely to weigh more heavily on you than upon an offender in normal health.
36 Your prospects of rehabilitation are enhanced by your commendable attitude and application to educational courses whilst in custody.
37
The non-parole period on your 15 October 2012 sentence expired on 26 January 2013. Accordingly, it is not necessary for me to fix a new single
non-parole period in respect of all sentences. I do, however, moderate the sentence I am imposing today by taking into account, in a general way, the time you have served in custody whilst awaiting your plea and sentence in this matter, and further by consideration of the principles of totality.
38 Mr Cholodniuk, could you please stand.
39 On Charge 1 of recklessly cause serious injury, you are convicted and sentenced to 27 months' imprisonment.
40 I declare that you serve a minimum period of 15 months' imprisonment before being eligible for parole.
41 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is 3 years' imprisonment with a minimum period of 2 years to be served before eligibility for parole.
42 At the plea hearing the Crown sought an order for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions as such as to warrant the making of the order, the order was by consent and the making of the order is in the public interest.
43 I inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Cholodniuk?
44
PRISONER: Yes.
45 HIS HONOUR: At the plea hearing, the Crown also sought an order for the disposal of the metal bar, to which you consented, and I have made that order also today. You may be seated, Mr Cholodniuk.
46 Are there any other matters from either counsel?
47 MS BROUGHTON: Is the sentence imposed concurrent on the sentence presently served?
48 HIS HONOUR: Yes, it's naturally concurrent under the Act unless I order otherwise.
49 MS BROUGHTON: Yes. Thank you, Your Honour.
50 HIS HONOUR: So as I appreciate it, what will happen is that he'll have to serve the minimum term of his sentence and then he'll be eligible for parole and the Parole Board will have to consider at the same time the issues of parole on the other sentence. Mr James, anything?
51 MR JAMES: No, nothing, Your Honour. Thank you.
52 HIS HONOUR: All right, thank you. You may take Mr Cholodniuk away now. I will just remain here for a moment.
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