Director of Public Prosecutions v Cody

[2015] VCC 1313

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

AT BALLARAT

CRIMINAL DIVISION

Case No. CR-15-00886

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN CODY

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Ballarat
DATE OF HEARING:	15 September 2015
DATE OF SENTENCE:	18 September 2015
CASE MAY BE CITED AS:	DPP v Cody
MEDIUM NEUTRAL CITATION:	[2015] VCC 1313

REASONS FOR SENTENCE
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Subject:  
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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms S. Keogh-Barnes	Emma Turnbull Lawyers

HER HONOUR:

1       Alan Cody, you have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty applicable to that offence is 15 years' imprisonment. 

2       This crime arises out events which took place on 18 December 2014 and involved the victim of your offending, Dallas O’Keefe. 

3       It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor.  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. 

4       In addition to that, you have a very troubling criminal record, not only by way of number of appearances at court, but also the types of offences for which you have appeared, which have included amongst other matters, violence-related type offending.

5       I turn to a brief summary of your offending.  You are at sentence 59 years of age.  The victim of your offending, Mr O’Keefe, is now 33 years of age. 

6       You believed Mr O’Keefe had been involved in a burglary at a friend’s home the previous night, in which a television had allegedly been stolen by someone driving a black Commodore. 

7       You discovered Mr O’Keefe’s contact details, phoned him and asked him what he knew about the stolen television and if he knew someone who drove a black Commodore. 

8       Mr O’Keefe denied any involvement but thought he might know a man “Dave” who may have been involved.  You agreed to meet Mr O’Keefe at a hotel in Ballarat.

9       Mr O’Keefe went to the hotel at around midday on 18 December and met you.  You were with Paul Boothroyd and Christopher Lewis.  The four of you drank at that hotel prior to leaving. 

10      After leaving the hotel, Mr O’Keefe and yourself parted company from the others and together went to an address to look for the black Commodore allegedly used in the burglary. 

11      After that, you were re-joined by Boothroyd and Lewis and the four of you went to the Ballarat Leagues Club where you continued to drink and played pokies. 

12      At about 4.52 pm, the four of you caught a taxi to your home in Ballarat.  You invited the others into your home and O’Keefe, Boothroyd and Lewis went to an outside area while you waited in the house for a few moments. 

13      When you came outside, you approached O’Keefe in an aggressive manner and shouted “Where’s my fucking TV?”  You produced a knife about six inches in length and lashed out, cutting Mr O’Keefe once to the right side of his face and stabbing him twice in the right forearm. 

14      Mr O’Keefe described the assault:

“The first two blows were in my right arm.  Then he got the right hand on my face and sliced it.  I'm not really sure exactly when it happened.  I was just trying to block him with my arms, it all happened so quickly.  It was all over in about 30 seconds.”

15      Mr O’Keefe jumped a fence and attempted to get help from neighbours but could not find anyone.  He ran towards York Street in Ballarat and called emergency services before waiting for the ambulance and police.  He was taken to Ballarat Base Hospital for treatment. 

16      You were arrested at 5.20 pm at your home.  You had changed into your pyjamas and had placed your bloodied clothing and shoes in the washing machine. 

17      When you were interviewed by police in a formal interview at the police station you made a “no comment” record of interview.  Of course, to answer that way was your right.

18      As a result of your assault upon Mr O’Keefe, he sustained a deep slash wound to the right side of his face from the corner of his mouth back towards his ear, approximately 15 centimetres in length, and two stab wounds to his arms.  Those injuries required surgery.  Mr O’Keefe made reference to the ongoing effect of the injuries sustained by him in his Victim Impact Statement with attached medical certificate from his general practitioner.

19      Aggravating aspect of your offending involved the use of a weapon. 

20      I note you also come to court with a very extensive and disturbing prior criminal history extending from 1984 to your most recent prior court appearance on 4 February 2014, on a charge of unlawfully beating another person, for which you were placed on a 12 month Community Correction Order.  Your offending before me breached that Order.  I am, of course, not sentencing you for that breach. 

21      In the intervening period since 1984 you have appeared at court on a vast number of occasions for offences that have included dishonesty, alcohol-related/driving offences, drug offences (dated), and particularly relevant for the purposes of this offending before me, violence-related offending.  On those appearances charges have involved damaging property, affray, threat to kill, intentionally cause injury, reckless conduct endangering serious injury, intentionally causing serious injury and aggravated burglary. 

22      Your criminal record also reflects multiple prior breaches of community-based orders, breach of a suspended sentence and breach of intervention orders.  Your non-compliance and prior history is relevant when assessing your rehabilitation prospects.

23      The victim of your offending has suffered considerably and I shall return to pass some remarks on that subject shortly. 

24      As has been pointed out by counsel, there are some mitigating factors in this matter.  Firstly, you pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial and in that regard in particular I refer to the victim of your offending. 

25      You were arrested and charged with this offending on 18 December 2014, that is, the day it occurred.  On 12 March 2015 there was a committal mention, on 26 March 2015 there was a further committal mention, at which time the matter was adjourned for a contested committal.  On 20 May 2015 the contested committal matter resolved and your plea was listed for hearing in this Court on 15 September.  The victim of your offending was therefore not required to be cross-examined.  Your plea of guilty and timing of it are relevant and mitigate your sentence. 

26      Regarding your remorse for this offending, I accept your plea of guilty indicates some remorse for it, but given your extensive prior criminal history I question the extent of your remorse. 

27      Your counsel, Ms Keogh-Barnes, prepared a helpful written outline of submissions for your plea hearing and I discussed this with her during the course of your plea hearing (Exhibit 1). 

28      Ms Keogh-Barnes sensibly conceded an immediate term of imprisonment was the only appropriate disposition for your offending.

29      She submitted the principles of Verdins & Ors[1] had application in your case, and I shall return to her submission in that regard shortly. 

[1] (2007) 16 VR 269

30      Ms Keogh-Barnes also acknowledged, appropriately, that you had a significant and relevant prior criminal history.  In particular, she noted your history of violence-related type offending.  As I have said, that is extremely troubling.  Before me was the sentence of his Honour Judge Howie, who sentenced you in August 2007 for offences including intentionally causing injury.  Disturbingly I note your use of a knife on that occasion also. 

31      Ms Keogh-Barnes also conceded this offending was serious and it certainly is.  She noted, as have I, your offending was fuelled by alcohol and drug use.  She conceded the impact upon the victim was significant.  Such is obvious, not only from the photographs tendered, but also the Victim Impact Statement and attached medical report (Exhibits B and C). 

32      Ms Keogh-Barnes submitted your offending was spontaneous, with no planning, submitting the dispute between you and the victim at the time of this offending had resolved.  You did, however, obtain the knife which indicated some planning albeit of short duration.

33      Ms Keogh-Barnes tendered two reports on your behalf. 

34      There was a report from Jeffrey Cummins, Clinical and Forensic Psychologist, dated 6 August 2015.  He set out some of your personal background and circumstances. 

35      You described being in an on-again/off-again relationship with Sharon Douglas, the mother of your two children.  You last saw Ms Douglas when you were evicted from the address at Rodier Street, East Ballarat, as a result of this offending.  You are now prevented from seeing your son, although apparently had ongoing contact with your 21-year-old daughter.  You have three other children from other relationships, however have not had any contact with those children in many years. 

36      Your parents live in Ballarat.  Your father was recently diagnosed with Parkinson’s Disease.  He had a history of alcoholism, and had been in trouble with the law for violent offending in the past.  Your father was frequently physically abusive to you, your siblings and your mother.

37      You attended five different primary schools.  For many years your parents were “out of your life”, and you only resumed contact with them in the past 12 months.  Your mother is 75 years of age and previously worked as a nurse at Lakeside Psychiatric Hospital for 43 years. 

38      You are the youngest of a sibship of five.  You have varying degrees of contact between yourself and them.  You said you were “raised in a violent family”.  You also described having been sexually abused when around 5-6 years of age, however, you would not elaborate upon that with Mr Cummins. 

39      After primary school you attended Sebastopol Technical School, passing Year 10.  Thereafter, your employment history was erratic and frequently curtailed as a result of various periods of imprisonment.  At the time of this report you had been unemployed for the previous three years, although had regained your driver’s licence, and had a probationary driver’s licence with a .00 condition.  I was told by your counsel there was a pending charge before the Magistrates’ Court of exceeding the prescribed concentration of alcohol.  You also, as I understand it, have an outstanding charge of theft from a vehicle, also yet to be determined and not relevant when sentencing.

40      You reported problems with gambling between the ages of 20 and 30.

41      You also described approximately fifteen years ago, when a pedestrian, suffering multiple injuries when hit by a vehicle.  You had never been hospitalised in a psychiatric hospital, despite a recent concerning episode at Eureka Stockade Park.  You have never received ongoing psychiatric or psychological treatment, although in the past had been prescribed Valium.  You accepted you had an anger management problem and had completed an anger management course in Loddon Prison in 2008.  Having completed that course it is concerning to me that you offended again in a violent manner.  I note the ‘overlay’ of alcohol and drug use at the time of this offending before me.

42      You described alcohol consumption, beginning from your early 20s.  You said when you stabbed “this guy” (Mr O’Keefe) you said you were “drunk on beer”.

43      Turning to drug use, you described approximately four years ago being introduced to methamphetamine, and that you had been injecting that drug for three years preceding your offending on 18 December 2014, using up to 3-4 points of methamphetamine daily.  You described never having received treatment for drug/alcohol use and/or dependence.  You said you were now not consuming methamphetamine.

44      At interview with Mr Cummins you acknowledged the seriousness of the injuries you had caused to Mr O’Keefe.  You said you were “maybe … feeling paranoid because you had been drinking alcohol and using ice (when you stabbed him)".  You acknowledged in the past you have attended drug courses and anger management courses.  You said you felt sorry for what you did to the victim, that you just did not know what came over you.  Your lack of understanding of what led to this assault does concern me. 

45      In his report, Mr Cummins also referred to your appearance at Ballarat Magistrates’ Court on 23 October 2013, again involving a knife.

46      Turning to your mental state examination, Mr Cummins noted that throughout the interview you were anxious and agitated and had, at least “mild difficulties maintaining attention and concentration”.  Mr Cummins suggested you be assessed by a neuropsychologist.  In his opinion, you appeared to be of below average intelligence, but he did not form the view that you were functioning in the borderline range.  You presented as mildly depressed.

47      

Turning to his opinion and conclusions, you acknowledged that at the time of this offending you had been under the influence of alcohol and methamphetamine and had “most probably” also consumed some Valium. 

Mr Cummins referred to you never having received any mental health treatment.  He concluded that at the time of this offending, alcohol and methamphetamine, and possibly Valium, may have resulted in you experiencing some form of drug/alcohol induced paranoia.

48      You acknowledged you continue to have an anger management problem.

49      In the opinion of Mr Cummins, it was likely you would attract a diagnosis of Antisocial Personality Disorder given your criminal record, and that most of your criminal history was alcohol and/or drug related.  It was unlikely, in his opinion, you had a Borderline Personality Disorder.

50      I was also provided with a report from Martin Jackson, Clinical Neuropsychologist, dated 23 August 2015, who took a history from you regarding your background and circumstances, which I shall not repeat here, but which I have read.  He had also received the report of Mr Cummins.  He undertook a neuropsychological examination.  On the depression, anxiety and stress scale, you reported symptoms suggestive of severe depression, anxiety and stress.

51      In his summary and assessment, Mr Jackson referred to your long history of substance abuse, primarily alcohol and most recently, methamphetamine abuse.  You also had a history of abuse as a child and a head injury at age 15 when hit by a car.  You had problems with anger control and impulse control and your offending history occurred in the context of substance abuse and/or poor anger control.  The findings at testing were set out in his report (pp. 11 and 12, points 1-9).  Further specific answers to questions were addressed by Mr Jackson, as set out within his report and which I have also read.  He concluded you had very severe impairments in a range of attention skills, with issues with impulse control being a particular concern.  There were several possible diagnoses, Attention Deficit Hyperactivity Disorder (undiagnosed), that you may have sustained a traumatic brain injury (TBI) when hit by the car, and that you may have alcohol-related brain injury, given your excessive consumption of alcohol over a significant number of years.

52      He concluded it was difficult to say whether or not your condition would be temporary or permanent, as you reported continuing to consume excessive quantities of alcohol.  He concluded your ongoing alcohol use may contribute to your problems or, at the very least, exacerbate them, which I have also read.  Mr Jackson noted, as did I, your current offence occurred whilst you were intoxicated.  It was possible, in his opinion, that if you ceased drinking alcohol there may be some improvement in your cognitive condition.

53      Due to your impairments, Mr Jackson noted a number of problems you might experience (p.14, point 3).

54      He concluded your cognitive and behavioural conditions did not affect your ability to understand the wrongfulness of your actions, although your severe disorder of attention, executive functions and impulse control meant you almost always acted without thinking.  Further, you had difficulty thinking clearly and making calm decisions and appropriate judgements.

55      Your Impulse Control Disorder would have been exacerbated at the time of the current offending and, in the past, by your alcohol consumption. 

56      Mr Jackson addressed the adverse impact of imprisonment upon your mental health (p.15, para 6).

57      Regarding your rehabilitation prospects and re-offending, Mr Jackson was very concerned about the likelihood of your re-offending, and your rehabilitation prospects, as am I.  To reduce the risk of recidivism you would need to stop drinking alcohol altogether, and you would need to receive treatment for your attention impulse control problems.

58      Mr Jackson noted you had not previously undergone any appropriate treatment for impulse control.  Mr Jackson noted two main protective factors against your re-offending were stable accommodation and having something to do during the day, whether it be vocational or avocational.  However, at this stage, neither of those protective factors were applicable and, in his opinion, that should be the focus of immediate intervention.

59      Also before me, there was some evidence provided by Ms Bradley, who has known you for approximately 25 years.  She described you as a really good friend and you helped her when she was diagnosed with cancer.  She was aware of your offending.  She had last seen you a few weeks ago.  In the past she used to see you on a fairly regular basis and she referred to you being otherwise, apart from this offending, very helpful with her in many respects.  In the times she had seen you, you had not been alcohol or drug affected. 

60      Initially Ms Keogh-Barnes submitted all principles in Verdins applied when sentencing you.  I discussed this with her, and in particular that your offending occurred in the context of consumption of alcohol and/or methamphetamine use.

61      In my opinion the principles in Verdins are not enlivened in this case, with the exception of the restatement of Tsiaras Principles 5 and 6 in Verdins.

62      Ms Keogh-Barnes, in her outline of submissions, acknowledged punishment, denunciation, deterrence, both specific and general, had significant application in cases of violent offending and also in relation to you.  I agree. 

63      She conceded, appropriately in my opinion, that a custodial sentence was the only appropriate sentence to give effect to those objectives. 

64      Ms Keogh-Barnes referred to your plea of guilty and the importance of that when sentencing as being indicative as an expression of your remorse, facilitating the administration of justice and having utilitarian benefit.  Of course, those all apply when sentencing you.  As previously noted, you pleaded guilty prior to the need to cross-examine the complainant at that hearing. 

65      I accept, as I have said, your plea of guilty is a relevant sentencing consideration and it was entered at a reasonably early opportunity.

66      

Turning to your rehabilitation prospects.  Ms Keogh-Barnes, again, correctly noted that the court would at best have guarded optimism regarding your prospects of rehabilitation.  I note there is some hope in that regard from

Ms Bradley.  She submitted a longer period on parole, with you having previously completed two periods on parole without incident, would further assist your rehabilitation prospects and it does. 

67      I remain concerned regarding your prospects of rehabilitation overall.  However, in fixing an appropriate sentence I must seek to maximise the chances of your rehabilitation as they may be. 

68      I discussed with Ms Keogh-Barnes the need for you, whilst serving your sentence, to access and participate in as many programs directed to your rehabilitation prospects that are offered, and that means not just turning up, but participating.  Also you should try and seek out programs if they are not offered.  Ultimately you will be in the community on parole for a period of time, although perhaps not the lengthy period urged by Ms Keogh-Barnes.  When on parole you will need to continue to access the supports available to you to enable you to remain offence free.

69      There was a Victim Impact Statement in this matter and the victim of your offending has suffered considerably in the manner described in his statement as a result of your offending.  Mr O’Keefe stated that since he was stabbed he has had a lack of motivation and low self-esteem.  He was constantly on edge, paranoid, hypervigilant and was frustrated that he put himself in a situation where he could have been stabbed in the first place. 

70      He required ongoing treatment for depression and anxiety and was taking prescription medication to assist. 

71      When he experienced an episode of anxiety and paranoia, he said it could be debilitating for him. 

72      As a result of the stabbing, he had nerve damage to the right lower cheek and chin area, which felt numb and was like a continual stabbing pain.  He had a scar on his face which made him feel self-conscious.  He had been advised that it would not heal any further which meant it was a permanent reminder of assault by you upon him for the rest of his life. 

73      There were also unwanted side effects as a result of the medication he had been prescribed for anxiety and depression.  He had required physiotherapy sessions as a result of the damaged cartilage in his elbows and lower back injuries.  There had also been a financial cost to him as a direct result of your offending, including the need to see a psychologist to assist with the emotional impact of the stabbing. 

74      He said he found employment difficult as it had involved him attending various properties to do maintenance and repair work.  As a result of a lack of confidence and the emotional impact of your offending upon him, he did not feel safe or secure working outside. 

75      Since this offending, he had not seen his twin daughters who are currently residing with his former partner, due to her concern for the safety of his daughters if they were with him.  He had not seen them for eight months which he found distressing.

76      Attached to the Victim Impact Statement was a brief report from Dr James Cannon, General Practitioner, who stated that Mr O’Keefe had been attending his practice for several years.  Since the stabbing, he had suffered a considerable degree of anxiety and post-traumatic disorder.  He was receiving counselling and taking Diazepam to relieve anxiety.  He was self-conscious about the scar on his face and had some degree of nerve damage as a result of the stabbing.  Further, he described that Mr O’Keefe had flash backs and bad dreams of the incident.  Whilst some antidepressant medication had been tried, it was not tolerated.  He described Mr O’Keefe as hypervigilant and exhibiting significant anxiety.  He had not been able to work and had issues with self-confidence and socialisation, and in his opinion, it was likely he would continue to suffer from the effects of this assault for some time.

77      Relevant also in relation to victims is the notion of social rehabilitation, see DPP v Toomey[2] in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[3]. 

[2] (2006) VSCA 90

[3] (2003) VSCA 109, paras 17 and 18

78 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process and also must be mindful of inadmissible parts of any victim impact statement.

79      In determining the appropriate sentence, I have also considered Ashdown v The Queen[4] and current sentencing practices relevant to the offence of recklessly causing serious injury as referred to in the Victorian Sentencing Manual. 

[4] [2011] VSCA 408

80      As well as matters personal to you to which I have referred, including the prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. 

81      There is also the need for specific deterrence when sentencing you, given your extensive prior criminal history for violent-related offending.  Further, I note your offending occurred in breach of a court order when you were placed on a community correction order in February 2014. 

82      

I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.  This continues to concern me.  You have multiple ongoing issues referred to by both

Mr Cummins and Mr Jackson.  You need to address at least your alcohol and drug use and anger management to give me any confidence you will not be a threat to the community in the future.  While you continue to consume alcohol to excess and/or use drugs, there remains the need for me to be concerned about other members of the community. 

83      I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

84      I sentence you as follows. 

85      On Charge 1, you are convicted and sentenced to 4 years' imprisonment and I direct that you serve a period of 2 years and 9 months before you are eligible for parole.

86 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict, I would have sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years and 6 months. That is a significant reduction to what I have sentenced.

87 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 3 days in custody, up to and including 17 September 2015, by way of pre-sentence detention and direct that that be entered into the records of the court.

88      The prosecution made application for a Disposal Order.  Ms Keogh-Barnes consented on your behalf to the order being made, and I make the order in the terms sought. 

89      The prosecution did not make an application pursuant to s464ZF, as you are already on the database, as I understand it.  I do not think there are any other orders. 

90      Can we just sort out the PSD? 

91      MR MOORE:  I think we agree it's three days.

92      HER HONOUR:  I think it was three.  And I make a note of this on the transcript.  You are originally remanded on other matters.

93      MR MOORE:  Bail was revoked. 

94      HER HONOUR:  I revoked bail on this matter and gave him credit for those days for this, so that's why there won't be any declaration, I assume, that any future Magistrates' Court hearing, whatever happens then.  I hope that makes sense.  It is on the transcript anyway.  Can you remove the prisoner please?  Thanks very much, Mr Cody. 

95      (SHORT ADJOURNMENT):  Matter recalled.

96      HER HONOUR:  I note Mr Cody is not here, but I note his counsel, Mr Kenny, is here.  I want it made clear on the transcript, it would appear that the three days for these matters on the sentence I imposed, that means there is one day it seems of 14 September that he should and must claim, whatever happens for those other matters in the Magistrates’ Court that are pending he gets credit for that day.  Because at the moment he’s not getting credit for that day and he should, very important that he gets PSD of a day later on. 

97      Now, this will be on the transcript and I won’t get him back for this unless you want me to, to explain that, and he needs to make sure he claims that one day.

98      MR KENNY:  I will do that your Honour.

99      HER HONOUR:  Thank you.

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