Director of Public Prosecutions v Cook
[2020] VCC 1043
•16 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01126
Ind K10669909
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Stephen COOK |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2020 |
| DATE OF SENTENCE: | 16 July 2020 |
| CASE MAY BE CITED AS: | DPP v Cook |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1043 |
REASONS FOR SENTENCE
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Intentionally causing serious injury, sustained attack including head strikes to footpath. Multiple blows to helpless victim. Both limbs of serious injury satisfied. Near fatal injuries including serious brain injuries. GCS of 3. Brain surgery on two occasions including craniotomy; second operation following rapid deterioration; Intubation. 11 days in ICU with discharge into a rehabilitation facility. No evidence of any catastrophic residual impact.
early plea; remorse; mild intellectual disability. 41 years old with some relevant criminal history and disadvantaged background.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Office of Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis | Stary Norton Halphen |
HIS HONOUR:
1.Stephen Cook, you have pleaded guilty to one charge of intentionally causing serious injury. This offence is punishable by a 20 year maximum term of imprisonment.
2.You were born in 1979, you are 41 years old and you have a criminal history which includes some appearances for offences of violence. Your counsel concedes it has some relevance to my task.
3.The details of your offending are set out in the written summary of prosecution opening dated 19 December 2019. The prosecutor Ms Caruso opened the case to me in accordance with that document. Your counsel told me that it was an agreed opening and I marked it as Exhibit A on the plea. For that reason, I really see no need to fully restate the sentencing facts in my reasons. I will sentence in accordance with that agreed summary. I still should say something about the facts.
4.Very briefly stated, you were 39 at the time of the offence back in March of last year. Your victim Alan Divko was born in March 1963 and was 56 years old. You were in a relationship at the time with a young woman named Aleisha Malcolm who lived in an apartment in the Docklands area in Bourke St. You lived with her. However from time to time, you were also a rough sleeper down in the Docklands area as a result of being asked by Ms Malcolm to leave the unit. That was in fact the position on the night in question.
5.Your victim was homeless and had been for about ten years. That is how you met. You had been friends for many years. You ordinarily took care of him.
6.The two of you were well known in the Docklands area, buying wine at the local bottle shop and then consuming it in an outdoor area of a local restaurant. On the night in question, so Tuesday 5 March 2019, you were obviously each seriously affected by alcohol. You had both been drinking together throughout the day. In that state, you committed a most violent and persistent attack upon your victim who was entirely helpless throughout. He could not even stand before your attack. In fact he had fallen over and could not get up. That is how intoxicated he was.
7.There were multiple blows by hand and by foot as well as the repeated striking of his head into the concrete. Your partner Ms Malcolm tried to stop you. Other people tried to stop you. You were unstoppable. Your attack was interrupted but then resumed on more than one occasion. The attack is captured on footage which I have watched. That footage is disturbing and is part of Exhibit A.
8.Various people rang 000.
9.Bizarrely, the event ended with you lying down and hugging the victim and saying that you were sorry. You were sitting next to him when the police arrived.
10.He was waving away the police and was taken by ambulance to St Vincent’s hospital. You were at that stage arrested for being drunk and were later released.
11.You intended to cause serious injury, and of course, you succeeded. It is a matter of pure luck that your victim survived. He was not expected to and had he not, you would surely have faced a murder charge, such was the ferocity of your attack.
12.The summary tries to describe what can be seen on the footage including your physical acts, the gaps in the assault, the resumption of it and the interaction with others. I see no need to repeat it all in my reasons. There were at least 25 punches to the head, five kicks and six occasions on which you slammed your victim’s head into the concrete, with the assault occurring over a 15 minute period, but with the gaps I have spoken of. This was all one way traffic. It was not a fight. All of your blows were delivered to an entirely helpless person who could do, and was doing, nothing to defend himself. As I say, he was helpless and unable to stand even before you launched the attack.
13.I see no utility in descending into all the details of the medical intervention required or the serious injuries actually sustained. The summary sets out each of these matters in great detail. Mr Divko was kept alive and frankly that was a line ball affair as is plain from the materials. He had a Glasgow Coma Score of 3. He spent 11 days in the Intensive Care Unit. He was intubated for most of that period. He had brain surgery on two occasions, the second when there had been a rapid and serious deterioration in his condition on 17 March. He had a craniotomy performed in the course of the first surgery. On 10 March, staff at the hospital rang police to tell them that they thought it likely that Mr Divko would die. He spent further time in hospital and then a period in rehabilitation.
14.The jaw injuries almost pale into insignificance but of course they were far from insignificant and required surgery with the insertion of plates. Both limbs of serious injury are satisfied here. Your counsel conceded the seriousness of the offence.
15.You were re-arrested and interviewed by the police on 14 March and made a series of admissions. You couldn’t explain why you did what you did. On the night of the attack you had mentioned something to the police about Mr Divko saying he was going to sleep with your partner but you have no memory of that at all and it is not in any way relied upon as having been said or in any way provoking this onslaught. You certainly expressed deep regret in the police interview. You have been in custody since your arrest.
16.You pleaded guilty after some negotiations once the matter came straight hand up brief to this Court. There were gross violence charges laid against you as well.
17.Well, so much then for my summary of the summary. The agreed opening is of course far more complete and I sentence in accordance with it.
Victim Impact
18.There is a brief victim impact statement here. It was read aloud by the prosecutor. This was obviously a very serious attack with very serious consequences. Your victim speaks of the way his life has been affected by this crime. He no longer feels safe in public, which affects his life in many ways. He has trouble getting around. He is left feeling isolated and lonely.
19.I take into account the impact of your crime. One can easily sense that Mr Divko’s life was none too easy before these events, living on the streets for as long as he had. It then became harder still, courtesy of your crime, a crime that came so close to killing him. The impact has been very sizeable. I take it into account. It seems apparent though that perhaps miraculously, he has not been lumbered with some of the catastrophic residual physical impacts that so easily may have flowed from the serious brain injury he sustained.
Mitigation
20.I turn now then to the matters in mitigation.
21.You may not necessarily fully appreciate the effort taken on your behalf by your legal team. Well I do. It makes my job a lot easier.
22.You are very fortunate to have been represented by Ms Karapanagiotidis. As I would expect of counsel of her very high calibre, she conducted an excellent plea on your behalf. She had prepared a detailed outline of argument dated 14 July which was marked as Exhibit 1. For those practitioners wanting to know how these sorts of documents should actually be prepared, they could do no better than to look at that document. It sets out exactly what needs to be set out. Indeed, I will expand that praise to the manner in which she prepares for an appearance. She has not been before me all that often but when she has been, I have noted that without exception, there is always a high level of care as well as a detailed knowledge of an offender’s personal background and the relevant case law. These things come not by chance, but by pure hard work and preparation, no doubt driven by an appreciation of the importance of her role as counsel. Of course, a barrister can only work with what is provided to her, so it is plain enough that she has been well supported by your solicitor. Someone thought it of importance to access your old Department of Human Services file and it was.
23.Ms Karapanagiotidis reviewed that file. She placed before the court an old Children’s Court report from 1990, an up to date report from a neuropsychologist Ms Carey, as well as a handful of course completion documents. She took me to your background in detail. She made submissions about the level of seriousness of the offence and various features of aggravation which were present or absent. She made submissions as to your prospects of rehabilitation.
24.She relied principally upon:
·Your early guilty plea;
·Your co-operation with the police
·The presence of remorse;
·Your disadvantaged developmental background;
·Your low level of cognitive functioning and the application of the 5th limb from the case of Verdins [2007] VSCA 102; and
·The increased burden arising from the impact of the COVID-19 virus.
25.Your counsel conceded both the seriousness of this crime and the inevitability of a sizeable term of imprisonment of a dimension requiring the fixing of a non-parole period. She really could not have said more on your behalf.
Prosecution
26.The prosecutor Ms Caruso did not make lengthy submissions owing to the sensible and realistic plea conducted on your behalf and the fact that she had prepared herself some quite detailed written submissions dated 10 July 2020. There was an addendum dated 14 July and that was to cover matters that had been raised in the defence plea submissions which had not been filed as at the date of the original Crown sentencing submission. I see no need to set out all of the prosecution sentencing submissions in my reasons. Those written submissions were generally quite uncontroversial and contained reference to matters of aggravation in the instant case as well as matters of firmly established sentencing principle. She submitted on behalf of the Director that this was very serious offending warranting a lengthy prison term but so much had already been conceded by your own counsel. The prosecutor took me to a handful of past sentencing decisions as well as statements as to the seriousness of this offence spelt out in the case of Zullo [2004] VSCA 153. I was also taken to the 2007 sentencing reasons of Judge Howard when he sentenced you back then. The prosecution was suggesting that you could hardly claim to be surprised to be committing serious offences when affected by alcohol. Those sentencing reasons showed it had happened before and on that past occasion, the Court was told that you were even then on notice as to the impact upon you of using alcohol. The prosecution argued before me that you knew the likely consequences of using alcohol and that I should find the use of alcohol to be an aggravating feature here. The prosecution took issue with the application of the principles from the case of Bugmy [2013] HCA 37 and referred me to the case of Snow [2020] VSCA 67. They also challenged the application of the 5th limb from the case of Verdins arguing that there was no evidentiary basis for such a finding. They suggested that your disadvantaged background and low intellect should only be taken into account in a general way. They submitted that your prospects of rehabilitation were bleak or at best guarded.
Background
27.I turn now to your background. Ms Karapanagiotidis outlined your personal background to me in some detail in her written outline as well as her oral presentation. It is also referred to in great detail in the report of Ms Carey as well as in Judge Howard’s sentencing remarks. I have no reason not to accept the family background placed before me and see no need to repeat it all now. I will provide a brief sketch.
28.You were born on 17 June 1979. You are now forty-one years of age. You were born in Castlemaine. Your parents separated when you were four. You were one of five children and you remained living with your mother. There was some contact with your father. You moved around a lot as you grew older, mostly in regional Victoria. You were placed into foster care on a number of occasions. You lived in Maffra for a year and then up in NSW with your mother and a boyfriend who were both alcoholics. They did not meet your needs at all. Your mother was at best neglectful of you, her partner worse, in that he was physically abusive towards you. You were shuffled around to your father or your grandparents or into foster care. The Department Human Services as they then were known, it may even have been Community Services Victoria back in that day, had involvement with the family. Your elder sister became a ward in 1989.
29.You were taken before the court on a care and protection application in 1990 when you were 11. There is a report which was provided to the Children’s Court sitting at Sale. The reasons for concern are set out in that document, “Stephen and his siblings are in need of a secure and stable environment”.
30.I am sure there are some people who when speaking to an expert may exaggerate the level of disadvantage in their lives with a view to gaining some sympathy or advantage at court. You are certainly not doing that. Looking back on your childhood now, you seem not to dwell on the unsatisfactory nature of your upbringing and the way it likely impacted upon the trajectory of your life. I note Ms Carey says you described it as being ‘relatively normal and free from abuse and neglect’. Maybe you are wishing away some of the obvious neglect that existed. Maybe it is an aspect of protecting yourself from looking back. Maybe it is as simple as not knowing the difference between the upbringing you should have had and the one you did have. Of not knowing what a ‘normal’ upbringing is. I don’t know and it does not actually matter. There is enough material before me to make it very clear that you had a most unenviable background. It should not have existed but it did. Ms Karapanagiotidis has gone through the Department of Human Services file and placed before the Court a single document. Again, that approach speaks of very good judgement. Better that, than placing a lengthy file before the Court. It was a pretty effective single document which was selected, I can tell you.
31.It is one thing to say that there was a level of disadvantage in a person’s developmental years. It is said all the time in pleas conducted before this court and no doubt that is because a large number of people coming before the court have had some level of disadvantage in their life. We as Judges hear the submission all the time and take into account the disadvantage as far as we are able to. But perhaps we can lose sight of the reality of disadvantage. Of what it actually means. Many of us have had every advantage in life. Then we see a document such as that which makes it crystal clear. A contemporaneous document which speaks through the years of the observed impact of that disadvantage upon the 11 year old Stephen Cook.
32.Exhibit 4 is a pretty poignant report provided to the Children’s Court in 1990 where your mothers lax and neglectful attitude is described. The vice principal at your primary school in Maffra described your poor social skills, isolation and withdrawal from other children and an academic performance which was plainly being limited by your environment. He described your deep pride in coming to school one day in some ‘new’ boots that belonged to your grandfather. Boots that were obviously very worn out and many sizes too big. He described your distress when the other children ridiculed you for wearing such boots.
33.When the author of the report introduced themselves to you as someone from child welfare, you immediately became distressed and said “mummy will be very mad”.
34.You were taken to foster care and it is easy enough to imagine how frequently there would be the request to return home by a child in such a setting. That was not your attitude. You are described in the following way in the report:
‘After arriving at the foster carer’s home, Stephen, while shy of foster carers, told the writer, “I hope I can stay here forever.”
The author describes how your environment was negatively impacting on your self-esteem, social skills and lack of development of sense of self.
35.No child should have had the background which was served up to you. You had no say or choice in it. These were the cards dealt to you and they were not a very good hand. Predictably, you struggled at school leaving half way through Year 9. You had struggled academically and you were bullied. The academic issues can be put down to a quite low level of functioning. Your mother died when you were 17. Your father is still alive, you think up in Benalla, but you are not sure, and you have no contact with him or any of your siblings. You have not had contact for many years. It is all a bit desolate.
36.You have not had a job for well over decade and have had a very limited employment record. You have been on the disability support pension for 20 years with your funds being managed by the State Trustees for the last 15 years. There was a declaration of intellectual disability made in 2000. You have a mild intellectual disability. More recently you have been accepted by the NDIS. Drugs and alcohol have been massively problematic for well over 20 years. Alcohol, heroin, ice and cannabis. You have had great issues securing stable accommodation with homelessness existing as a pressing issue for many years.
37.You have a relevant criminal history. It is not the longest of criminal records and I accept that many of the crimes are consistent with the sort of impoverished life you had been leading and that there are gaps in offending including for a number of years before this crime. You had also seemingly complied with the community corrections order with the Justice Plan imposed by Judge Howard back in 2007. You have been dealt with for crimes of dishonesty and some street type offences. I cannot ignore though that there have been some matters of violence including a couple of assaults and the more serious crimes such as robbery, attempted armed robbery and false imprisonment. You have breached a number of Court orders. Happily you have never been dealt with for a crime as serious as this one and I accept the submission that there is nothing to suggest you are firmly entrenched in some violent way of life. You have been sent to prison on occasions but never for any lengthy period.
38.Your period on remand to date has been your longest period of confinement.
39.You have been in custody since your arrest in March 2019 and are housed in the Marlborough unit which is very appropriate as I am told that it caters to people with some form of intellectual disability. You are working in the laundry. There are some greater restrictions in play in prison flowing from the response to the COVID-19 virus. I will discuss those matters later.
Guilty Plea
40.I turn to some of the matters raised in mitigation on your behalf. I turn firstly then to your guilty plea. A committal was not conducted here. You pleaded not guilty and the matter came up to this court with the more serious offences of intentionally as well as recklessly causing serious injury in circumstances of gross violence. Your lawyer at the initial mention, (not Ms Karapanagiotidis) told the Court that issue was being taken with intention as well. Some further medical materials were served upon you and the case settled swiftly.
41.I will treat it as an early guilty plea. It has obvious utilitarian value. You, unlike others, took responsibility for your crime and in fact had done so in the interview much earlier. The community has been spared the time, the cost and the effort of a committal hearing in the Magistrates' Court or a trial up in this court. Very importantly the victim Mr Divko has been spared the experience of giving evidence in Court. So too other witnesses. Giving evidence can itself be an unpleasant experience. It can actually add to the trauma and it has been completely avoided here.
42.You have in these various ways, facilitated the course of justice and I will pass a lesser sentence because of your early guilty. In addition, you were very cooperative indeed with the police. I take that into account in your favour as well.
Remorse
43.I turn then to the issue of remorse. Your counsel argues that you are remorseful. She sets out some examples of the remorse she argues is on display here. As brutal as the assault was, I am left in no doubt at all that you are actually remorseful for your crime. You were expressing that on the night, hugging the victim and apologising within minutes of reducing him to that state which we see in the footage. You have pleaded guilty at an early stage. A guilty plea is usually evidence of some remorse. Then I have your interview where you make appropriate expressions of deep remorse. You were upset to even see the still images. You were friends. I am not going to identify every item that is suggestive of remorse for I actually have no doubt that you were and are genuinely remorseful. I take the existence of remorse into account in mitigation of sentence. It is actually important.
Rehabilitation
44.I turn now to your prospects of rehabilitation. What are those prospects? It is never easy to sit up here trying to forecast what lies ahead. You may well have the best of intentions now, but a person can have good intentions and not follow through with them. Will you be able to find a stable home or a job and most importantly achieve abstinence from alcohol and drugs? Abstinence is critical. You have a criminal record and whilst it is not that lengthy, you have breached a number of court orders. You have been sent to prison in the past and yet have continued to offend, though there are a number of gaps in offending. You were a mature man when you committed this serious assault, not some silly teenager with youth on his side. The sentence I will impose will be of a dimension to surely have some role to play in significantly deterring you into the future. So too the time you have spent already in custody. The trouble is you do things when disinhibited by alcohol or drugs. You have had long term issues with alcohol and drugs, which very much cloud your future prospects. You have the intellectual disability spoken of in the report of Ms Carey which is a static condition. The disadvantaged family and developmental background you had will not suddenly evaporate.
45.Ms Carey was impressed by your ability to be engaged for as long as you were in the assessment process and says that you may well be amenable to treatment (See para [40]). You are very remorseful and that is actually a big positive. You know what you have done to your friend and perhaps that may spur you on to change your life.
46.You plainly have complex care issues. Ms Carey mentions in paragraph [41] a large range of interventions required. Maybe engagement with the NDIS will be of some assistance. You need a house, you need a job and you need much by way of counselling. I am told you have been drug and alcohol free now whilst in custody. You have been working in custody and have undertaken a number of courses. Your counsel says you have put on a lot of weight and are much healthier looking.
47.It is hard not to be quite guarded here. I certainly won’t write you off and say that you have no prospects of rehabilitation. If I thought that, rest assured, I would tell you. I do not. Nor am I prepared to describe those prospects as bleak. I am prepared to find that you have some realistic prospects of rehabilitation. That is what your counsel ultimately urged upon me. Plainly those prospects would be better still if you do all the things asked of you during the sentence and upon your ultimate release, whenever that is. But will you? That is what I cannot know now. You must not drink at all or use any illegal drugs. Surely this crime will make that as plain as day to you. For no reason at all, you have committed what was a near fatal attack upon someone you liked and had cared for. You have done something which I am sure you would never have dreamt of doing but for your heavy alcohol use and the use of drugs. Something which shocks you in your sober state as it did when the police showed you the stills in the course of the interview. You must be alcohol and drug free in the future. If not, what hope do you really have? You have a tough enough road ahead without adding drugs and alcohol into the mix. It really is not too late for you to change, it is not, but it will need to be a very sizeable alteration to the way you have lived for many years. I hope that you can succeed upon your ultimate release.
48.I do assess your prospects as being realistic and that may not sound much to you. Still, having realistic prospects is a lot better than having none.
COVID-19
49.I accept that the COVID 19 virus and the response to it by those running the prisons will increase your prison burden. It has already to this point for the last few months. Prison is a more stressful environment. You cannot make a decision to self-isolate. Social distancing cannot be easy. No doubt there is much uncertainty as to what lies ahead. It is impossible to know precisely how the virus or the response to it by those running the prisons will impact upon you in the future. There are some lockdowns but they do not exist across all prisons so I cannot conclude that they would necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things would persist. Cessation of visits sadly has no impact upon you as you had previously not received any visitors.
50.According to a Corrections publication that I mentioned to your counsel, any prisoner who is well behaved and who is suffering disruption or deprivation due to the prison response to the COVID-19 virus will automatically be considered for emergency management days. It is not exactly clear what that would mean for you and the extent of any relief will certainly be decided on a case by case basis. It will not be attracted by the suspension of personal visits.
51.
It is impossible for me to forecast the impact of this virus either on those in the community or those in prison. Two or three months ago, things looked very bleak. Two or three weeks ago they had looked up with a significant easing of restrictions. Things looked far less promising a week or so ago with the spikes in infection and further lockdowns including the first “hard” lockdown. Last week, Metropolitan Melbourne and one outlying regional area were plunged into a six week lockdown with a resumption of the very strict stay at home directions. That does not suggest to me that there will be relaxations in a prison setting anytime soon. I believe it is reasonable for me to conclude that there are no prospects in the short term of the prison conditions being returned to the
pre-COVID-19 setting. That undoubtedly makes prison life tougher for you and has done so since those measures came into force a few months ago. You are receiving less time working in the laundry and less time out of your cell and have already experienced some issues in terms of programs and courses being offered. I accept that there is an increased custodial burden in your case for the various reasons that I have listed. I take this into account in your favour.
Verdins and Bugmy
52.I turn now to the submissions made based on the cases of Verdins and Bugmy. I have already mentioned already the report of Ms Carey. I have dealt with aspects of the report already. I am impressed by the level of detail in that report but opt not to set out slabs of that report in my reasons which already will be very lengthy. I am also impressed by the assessment process which she undertook and her level of rigour, each of which are so often lacking in reports placed before this Court. I act on this report in the manner contemplated by your counsel. It sets out your background in detail and I will not repeat all that I have said.
Bugmy
53.An offender’s individual circumstances will always be of importance. Your background was one of significant deprivation and disadvantage. It is no answer to say that those events occurred all those years ago. The effects of profound childhood deprivation do not diminish with the passage of time. They leave their mark. Your background has shaped you. You were exposed to alcohol abuse and some violence, as well as neglect. It does not actually explain the offending but may well explain a fair bit about the trajectory of your life including your isolation from family members and your issues with homelessness, alcohol and substance abuse. You were certainly not well equipped for adulthood. You had some special needs as a child with your low level of functioning and they were just not catered for at all.
54.Alcohol and drugs obviously had a sizeable role to play in this offence and that is not mitigatory. The crime I am dealing with is closely connected to your totally disinhibited state flowing directly from your high level of drunkenness and drug use on the night in question. There is no direct link or nexus between your background and the criminal acts as there sometimes is. See the case of Snow [2020] VSCA 67.
55.Now it will always be matter of what weight to attribute to evidence of a disadvantaged background. Social disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to reduction or even a substantial reduction in moral culpability and also sizeable reduction in the weight to be given to general and specific deterrence. Sometimes it might be enough to take it into account in a general way without those sizeable reductions. It will be determined by the nature of the evidence. It will depend on the nature and extent of the disadvantage, the nexus if any with the offending but also the nature of the crime and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation. See Terrick [2009] VSCA 220. Plainly where there is a strong nexus then the mitigatory value will rise. It does not all flow in one direction either by the way. It can even lead to a finding of a greater need for community protection.
56.Your counsel was explicit. She was not relying upon any Bugmy reduction in relation to specific or general deterrence or any of the other purposes of sentencing. She argued that there should be only a small reduction in your culpability based on that line of authority. The prosecution argued against any Bugmy reduction in culpability here, pointing to the lack of direct nexus. They argued that the disadvantaged background could be taken into account in a general way. I asked what that actually meant? If I was taking it into account in a general way and presumably in a mitigatory fashion, what was the difference between that allowance and a Bugmy type reduction and the answer to that question was not entirely clear either to the prosecutor or to me.
57.It occurs to me that it will be really quite rare to have evidence of a direct link between the commission of a crime and events occurring many years, sometimes many decades, in the past. Rightly or wrongly, I take the view that the Bugmy principles do not depend on such a direct nexus. They will plainly be given much greater weight where there is a direct nexus.
58.I believe there can be some small reduction in your moral culpability on the Bugmy principles for the reasons flagged by your counsel. In that sense I am giving full weight to your background. See Bugmy [2013] 249 CLR 571, Marrah [2014] VSCA 119, Snow & Terrick (op cit).
Verdins
59.The report also comments on your level of functioning. Now in terms of pure IQ, you are probably a line ball as to whether you are to be described as intellectually disabled. You have a mild intellectual disability. That is the view of Ms Carey and it coincides with other materials she had access to as well as the previous finding giving rise to a Justice plan. There is also reference to it in the reasons of Judge Howard who had expert evidence placed before him as well.
60.I will act on Ms Carey’s opinion as to the existence of a mild intellectual disability and her opinion as to that level of functioning operating to increase the burden of imprisonment in your case. That is developed in your counsel’s written submissions. The prosecutor challenged the application of the 5th limb but not the existence of the intellectual disability. They go hand in glove as far as I can see. A mild intellectual disability is not like having a mild cold. The word ‘mild’ has a very different meaning when applied to an intellectual disability and speaks of a sizeable enough deficit in functioning.
61.You have, as a result, a lower level of resilience to deal with the rigours and challenges of prison life. You are socially isolated. I find the 5th limb of Verdins to be engaged. I give it some modest weight. It is not being relied upon to engage any of the other limbs from that case of Verdins. There is no realistic connection at all between your cognitive deficits and this offending nor any reason to reduce the weight to be given to general and specific deterrence. Again, your counsel was explicit in limiting the Verdins submission to the 5th limb.
62.However, the intellectual disability is also a matter I can take into account in a general way and I do.
General
63.I now make some general remarks. I am required to take into account a large range of matters including for instance the maximum penalty and the impact of the crime.
64.I am required to take into account current sentencing practices. Current sentencing practices are but one factor. They are not a controlling factor. I have looked at a variety of materials. The prosecutor referred to the Sentencing Advisory Council Snapshot No. 238 for Intentionally Causing Serious Injury, as well as some examples of other sentences imposed for this crime. More significant than the actual sentences were the statements of principle as to the serious nature of the crime of Intentionally Causing Serious Injury and I will return to some of those matters shortly.
65.I have looked also at the new Judicial College of Victoria sentencing case collection of sentences for this crime. I have looked at cases such as Lukudu [2019] VSCA 248 and Evans [2019] VSCA 239 which speak of the importance of general deterrence and the reality of sentences in the high single figures and into double figures.
66.The snapshot demonstrates that when prison was imposed it spanned a large range of sentences from periods of less than one year to over 12 years. The most common band fell between 5 to 6 years. Those statistics are not surprising. They simply confirm that there can be many differences between cases and offenders and hence outcomes.
67.Statistics have inherent limitations. They say nothing about the individual features of the case. They say nothing about the particular offender or the particular crime. Nothing about the extent of injuries or impact. They are silent as to the whole range features of aggravation or mitigation, which are the very things which will lead to the given sentence.
68.Other cases also have significant limitations. In so far as they disclose actual sentences imposed for the crime of Intentionally Causing Serious Injury, they do not stand as authorities or precedents, to be followed unless somehow distinguished. They are not precedents. They are merely instances of another Judge or Court sentencing another offender for another crime. Some things present in other cases are not present in this case. There are different mechanisms of injury, different duration of offence or number of blows. Different injuries and impacts. Different consequences. Differences in almost every area including remorse, stage of the plea, and criminal history. A host of different matters in mitigation and aggravation for that matter. Even differences in the definition of serious injury which was significantly altered in July 2013 and became far more difficult to establish. Sentences have also increased for this crime as is made plain in the case of Lukudu (see para [46]).
69.At the end of the day, what I have to do is to pass an appropriate sentence in your case. That outcome is not driven by what has happened in other cases, or by what the statistics disclose or by what has most commonly been done in the past. I pay regard to current sentencing practices but there is no such thing as one correct sentence and another judge in any of those other cases may have imposed a different sentence and been entirely within his or her rights to do so.
70.I have to take into account the various purposes of sentencing.
71.Rehabilitation is one such purpose. Those prospects or rehabilitation exist here as I have announced but I can only be quite guarded. I believe that rehabilitation must surrender some sizeable ground to some of the other purposes here given the nature of this crime. Punishment is an important sentencing purpose. You know that. You know that you must be punished for your crime. I must punish you justly and proportionately.
72.I must also denounce your conduct. That is also an important purpose. This was a terrible crime and you should be ashamed of yourself. I believe that you are. There is not the slightest aspect of revelling in the offending. You are appalled by it and that can only be a good thing.
73.Community protection is also self-evidently an important purpose of sentencing. This was quite startling offending in a public place with people looking on. You were totally disinhibited by alcohol and drugs but that is not in any way mitigatory as your counsel made clear in her submissions. I will not however do as the prosecution suggest and treat it as a matter of aggravation. I don’t imagine there were many days where you were not drinking to excess and there had been a gap of some years between offences. I am just not satisfied to the requisite degree that you were on notice as to this sort of event being a likely consequence of drinking alcohol or ingesting drugs. It is then neither an aggravating feature or a matter in mitigation. It is just the context.
74.Specific deterrence is also a sentencing purpose to be given adequate weight. That is the need to deter you. You must be deterred from offending in the future. No doubt having been in custody to date will serve to deter you to a degree. So too the sentence I will impose. So too hopefully your understanding of what you did to your friend and your feelings of remorse. Specific deterrence is still an important purpose. You must be deterred.
75.General deterrence is of real importance in this sort of case. An instance of wanton violence. This was a violent and sustained attack in a public place. The courts must seek to deter other people in the community who might be minded to commit this type of offence. The message must be sent loud and clear to likeminded potential offenders that this sort of serious crime of violence will be met with a very strong response at court.
76.I have to pay regard to the gravity of the offence before the court. Intentionally Causing Serious Injury is an inherently serious offence. It is accepted by your counsel that this was no low level example of the crime of Intentionally Causing Serious Injury. Of course it was not. Both limbs of the definition of serious injury are after all amply satisfied here. Serious injury is defined as, ‘injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted’. Both limbs are made out. Your victim would certainly have died but for the treatment obtained. Serious invasive operative and medical treatment was required to keep him alive and easily might not have. Further, the effects had been substantial and protracted.
77.Your victim was totally defenceless and vulnerable. It was a brutal and sustained attack. It is true that there was nothing by way of planning. The crime was just senseless and no doubt just arose quite spontaneously in the setting of being totally disinhibited by alcohol and drugs. You described to the expert ‘just exploding.’ You do not know why you did, but you did. Maybe something was said by your victim. Who knows? You do not.
78.People tried to stop you, to no avail. You at one point returned to your seat, had a drink, plugged in a device to charge the device, looked at the device and then got up and walked over to victim and resumed the attack, this all after some minutes. You were very fortunate you did not kill Mr Divko. You intended to cause him serious injury and you succeeded very handsomely.
79.As I said in the course of the plea yesterday, there was no disconnect between the mechanism that you used and the actual injuries caused, as there sometimes is. Mr Divko did not, for instance, fall to the ground and sustain serious injury in that way. This was not some flurry of blows with someone fighting back or some confused melee.
80.Your counsel raised in paragraph 4 of her written submissions, the absence of a few matters of aggravation. Not being in company and not having a weapon. It is true you were alone. Alone with your friend who was literally ‘legless’ before you launched your attack. Group attacks are often judged to be serious as there is an outnumbering of a victim and the use of those superior numbers to render helpless the victim. Mr Divko was totally helpless before you started this attack.
81.It is true you did not have a weapon. Your fists were, in the setting of this attack, very dangerous weapons indeed. You were punching and kicking him and banging his head repeatedly into the concrete. Given the nature and duration of the attack and the focus on his head and his total state of helplessness, you must have intended to cause the sorts of serious injuries contemplated by that sort of sustained mechanism. Serious head injuries, though I am not suggesting for one moment, necessarily the actual injuries he sustained.
82.The absence of a few matters in aggravation does not remove the many matters in aggravation which do exist in this case. There are many and again that is conceded by your counsel.
83.These injuries would have been fatal but for prompt medical attention and a fair dose of luck. We as Judges see injuries that are far more catastrophic than these in terms of their physical residual effect. I am speaking of unfortunate victims reduced to a near vegetative or dependent state or to a wheelchair for life. Well, thank heavens that is not what we are dealing with here, but it is always a matter of degree. These serious injuries were high level, would have been fatal and the mechanism was pretty incredible. The crime is, as far as I am concerned, a serious example indeed of Intentionally Causing Serious Injury, which is inherently a serious offence.
84.As Nettle JA said in the case of Zullo, to which I was referred;
“This court has said repeatedly that those, who when disinhibited by alcohol, engage in unbridled violence in public places, must expect condign punishment in which the principles of general and on many occasions specific deterrence will play major roles”.
He went on to make it clear that sentencing practices had moved on from those days where there had been a lesser maximum penalty and that the top of the range was in 2004, upwards of 15 years.
85.In the case of Terrick which I referred to a moment ago when dealing with the aspect of disadvantage, the Court of Appeal referred to a series of cases handed down in August 2004 where statements had been made as to the seriousness of the offence of Intentionally Causing Serious Injury. See paragraph 76 of that decision. Those cases included DPP vZullo [2004] VSCA 153 but also DPP v Lawrence (2004) 10 VR 125, R v Huynh [2004] VSCA 156 and R v Sa [2004] VSCA 182. It restated what I have already mentioned from Zullo. The Court of Appeal made clear that the aggravating features common to many of the cases with the high level sentences were;
·that the attack on the victim was unprovoked,
·the attack continued after the victim had become unconscious and
·the victim sustained very severe injuries.
86.You tick a lot of the boxes for those features of aggravation. Had your attack resulted in the catastrophic life altering impacts I spoke of a moment ago, it would have ranked right up there with the most serious examples of the offence given the vulnerability of the victim and the sustained nature of this attack. Fortunately for your victim, and fortunately for you, as diabolically dangerous as his injuries were and whilst there has been serious impact, it has not reached that highest of levels and only for that reason do you avoid the imposition of a sentence well into double digits.
87.I suppose all Ms Karapanagiotidis was saying when dealing with the absence of a co-accused or a weapon or the absence of catastrophic residual impact is that one can always envisage a worse example of an offence. That is undoubtably true. You have pleaded guilty and you have remorse and some run a trial and have none. However being able to envisage a worse example of an offence does not place this crime with all of its aggravating features into a low or even mid-range position. It is, in my judgment, a serious example of the crime of Intentionally Causing Serious Injury.
88.Your counsel correctly conceded the inevitability of a term of imprisonment and one of a dimension requiring the fixing of a non-parole period.
89.Of course, I am conscious to avoid a crushing outcome upon you but I must pass an appropriate sentence. Your culpability was high here. The objective seriousness was also high. Your conduct has left the court with no alternative at all. It was, as I have said, a serious example of this offence and can only be met with a very sizeable prison term.
90.Given the dimensions of the sentence I must impose, I am required by law to fix a non-parole period. I can make no assumptions as to whether you will be released on parole or not. That is entirely in the hands of the Adult Parole Board. In fact, I am not even allowed to speculate about the possibility of release. It is though, as plain as day to me, that you will need structure and support to maximise your chances of rehabilitation. I cannot provide any structure given that the sentence I must impose rules out any consideration of release onto a Community Corrections Order.
91.I will arm the Adult Parole Board with my reasons for sentence as well as the excellent report of Ms Carey and each will, I am sure, drive home the need for you to have some structure in your life upon your ultimate release whenever that is. Ms Carey sets out in some detail the things that you will need and that may be of real use to the Authorities.
92.I will fix a non-parole period which will provide for the possibility of a decent enough period on parole, should you be so released. Whether the Adult Parole Board release you on parole is between you and them and has nothing to do with me.
93.I am sorry to have taken so long to get to this point but I will now pass the sentence of the court upon you.
Sentence
94.On Charge 1, intentionally causing serious injury to Alan Divko, I convict and sentence you to seven and a half years' imprisonment. That is therefore the total effective sentence.
Non Parole Period
95.I fix a period of four years and nine months during which you will not be eligible for release on parole.
Section 18 PSD
96.You have been in custody already for a period of 490 days. That period is reckoned as having already been served pursuant to this sentence and that Section 18 declaration is to be entered into the records of the court. In other words, you get credit for the pre-sentence detention.
6AAA
97.I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison for 10 and a half years. I would have fixed a non-parole period of seven years and nine months and that declaration is also to be entered into the records of the court pursuant to s.6AAA.
98.I will just see if there are any other matters that I have to deal with. Ms Caruso, any matters I need to deal with?
99.MS CARUSO: No, Your Honour.
100.HIS HONOUR: Ms Karapanagiotidis, any other matters at all?
101.MS KARAPANAGIOTIDIS: No, Your Honour, aside from just asking for that indulgence once again, if I could speak with Mr Cook very briefly when Your Honour rises.
102.HIS HONOUR: All right. There will be some other attendance upon him though, will there, or not?
103.MS KARAPANAGIOTIDIS: Of course. No, no, of course there will, yes.
104.HIS HONOUR: Okay, yes.
105.MS KARAPANAGIOTIDIS: Thank you.
106.HIS HONOUR: All right, well look that completes the matter then, Mr Cook. So I will do what I did yesterday. I will, in a moment I will leave the Bench, then the prosecution and the police informant and the solicitor for the Office of Public Prosecutions who are watching on will be removed from the process so that you can have a bit of a brief chat with your counsel about what has just happened. It will be reasonably brief, it will be occurring in the presence of my staff though. No doubt there will be arrangements made to have a more complete discussion with you in due course. Do you understand?
107.OFFENDER: Yep.
108.HIS HONOUR: Okay, great. Well look, let me just look at the formal order, I will sign that and I will leave the Bench.
109.OFFENDER: Thank you, Your Honour.
110.HIS HONOUR: Look I have signed that formal order already. Wait till I have left the Bench. My staff will disconnect the prosecution and you can have that conference anyway, Ms Karapanagiotidis. Thanks both of you for your assistance in this case. Yes, I will adjourn till 10.30 tomorrow then please. Thank you.
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