Director of Public Prosecutions v Cullie
[2019] VCC 956
•26 June 2019 in Melbourne
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-17-00750
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER CULLIE |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 April and 22 May 2019 in Bendigo |
| DATE OF SENTENCE: | 26 June 2019 in Melbourne |
| CASE MAY BE CITED AS: | DPP v Cullie |
| MEDIUM NEUTRAL CITATION: | [2019] VCC |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Causing serious injury intentionally - use prohibited weapon in licensed premises
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton & Ors v The Queen [2014] VSCA 342
Sentence: 2 years’ imprisonment, 15 months’ non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr D. O’Doherty Ms V. Toong | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr J. Desmond Ms A. Singh | Nicholas Rolfe & Associates |
HIS HONOUR:
1.Mr Cullie, you have pleaded guilty to one charge of causing serious injury intentionally and one charge of use a prohibited weapon in licensed premises.
• − Causing serious injury intentionally carries a maximum penalty of 20 years' imprisonment.
• − The use of a prohibited weapon in licensed premises carries a maximum penalty of 4 years' imprisonment.
1.You were born on 2 September 1964 and are now 54 years old. You were aged 52 at the time of offending in September 2016.
2.You have a short criminal record, about which I will go into more detail later.
3.The victim in this matter is Mr Brendan Jones, born 24 February 1977. On the date of the offences he was aged 39.
4.The circumstances of the offending are as follows.
5.On 14 September 2016 you and the victim, who are both greyhound trainers, attended a Greyhound Racing Victoria meeting at the Bendigo Greyhound Association Track located at Lords Raceway in Junortoun.
6.During the afternoon, the victim and a friend, Karen Wright, attended Chasers Function Centre at the track. Chasers Function Centre is a licensed premises.
7.You and your friend John Accurso also attended Chasers Function Centre. You had a prohibited weapon, namely a flick knife, in your possession.
8.At 6 pm you and the victim were involved in a minor physical and verbal confrontation inside the venue.
9.At approximately 6.14 pm the victim and Ms Wright walked past you and Mr Accurso towards the exit door. As the victim neared the exit door, you and he exchanged further derogatory remarks with each other. The victim walked back towards you. You approached him also. You raised your left arm towards him and put your right hand into your right pants pocket. The two of you grappled.
10.You then removed the flick knife from your right-side tracksuit pants pocket. You stabbed the victim in the left torso, and the knife deeply penetrated his chest. This conduct gave rise to Charge 1 of causing serious injury intentionally, and Charge 3 of using a prohibited weapon in licensed premises.
11.The victim initially thought that he had been punched, but then felt wetness and backed away from you while you pushed the flick knife blade back into the handle and retained the knife in your right hand.
12.The victim then used a chair from a table to provide a barrier between himself and you, which caused you to stop advancing.
13.As the victim continued to retreat, he stated that he had been stabbed and then lifted up his jumper to reveal blood running down the left side of his torso.
14.You continued to verbally engage with the victim in an aggressive manner.
15.The confrontation was witnessed by Karen Wright, Samantha Hooke, Daniel Carswell and Susan Carswell. Ms Hooke and Ms Wright attended to the victim before Ms Wright assisted him to the exit with the intention of transporting him to the hospital.
16.On the way to the hospital the victim began to feel faint and was bleeding heavily. Ms Wright called 000 and the ambulance met them halfway and transported the victim to the hospital.
17.Once the victim and Ms Wright left the building, you called 000 to report that you had just stabbed the victim in self-defence because the victim had head-butted you and made threats towards you.
18.Sergeant Mark Holloway of Bendigo Police telephoned you while you were still at the Bendigo Greyhound Track and advised that police were unable to attend and requested that you attend the Bendigo Police Station.
19.You deliberately snapped the blade of the knife in the car park of the Bendigo Greyhound Track, reducing the length of the blade from approximately 10-14 centimetres to 2 centimetres, and disposed of the broken blade into a rubbish bin.
20.At approximately 6.50 pm you attended the Bendigo Police Station with Mr Accurso. You spoke to Sergeant Mark Holloway and stated that you had stabbed the victim in self-defence and produced the knife (with now the broken blade). You stated that you carry the knife for self-defence purposes.
21.Sergeant Holloway advised you to hold onto the knife and then called Senior Constable Lincoln Owens out to speak to you.
22.Senior Constable Owens and you went into an interview room and you told him that you had had a fight with the victim, that the victim threatened you and you stabbed him in self-defence. You stated that you did not think the stab caused any real injury. You produced the knife and it had a broken blade.
23.The victim suffered injury to his diaphragm and a pneumothorax from a single stab wound to the left side of his chest, requiring surgery and a hospital admission from 14 September 2016 to 23 September 2016. He has yet to fully recover from his injuries.
24.The victim impact statements from both the primary victim, Mr Jones, and from his partner reflect the serious consequences of the stabbing incident.
25.Apart from the initial and continuing experience of pain, Mr Jones has suffered emotionally with anxiety, sleeplessness and hypervigilance to the point of exhaustion.
26.The business was affected financially.
27.Mr Jones' partner has also been significantly physically and emotionally affected. She has suffered years of constant worry, feeling mentally and physically drained. In the initial stages of Mr Jones' hospitalisation, she was burdened with caring for him as well as trying to maintain his canine business and mange her own job in Melbourne. The mental and physical effects on both Mr Jones and his partner have damaged the relationship.
28.The incident was captured on closed-circuit television.
29.On 29 September 2016, you attended the Bendigo police station by appointment where you were arrested and interviewed. In the course of the interview:
a. a) You made admissions to stabbing the victim in the context of an altercation with him.
b. b) You stated that you had the knife in your possession because you had taken it from your son some three weeks prior to this incident and had forgotten it was in your pocket. You stated that when you got to the track that day you took the wrong jacket from your car, and this jacket had the knife in the top breast pocket. You stated that when you realised you were carrying a knife in your top pocket, you put it in your pants pocket and zipped it up.
c. c) You stated that the knife was about 4 or 5 inches long and the blade would not close.
d. d) You stated that you did not want to get into a fight but that you were glad that you had the knife, believing that you would have been bashed if you had not used it to stab the victim.
e. e) You stated that the victim head-butted you and picked up a chair.
f. f) You further stated that you wanted to give the victim “a little cut”.
g. g) You stated that you never felt it go in.
h. h) You stated that after stabbing the victim, you told him, “Go to the hospital”, and you said further, “Mate, go to a doctor and get a stitch. Just fuck off and go home and sleep it off”.
i. i) You denied knowing that the knife was a flick knife.
j. j) You later admitted that the knife was collapsible, you carried the knife closed and you had opened it up.
k. k) You admitted that you had smashed the blade of the knife in the car park of the Greyhound Track and put the broken blade in a bin, and that on giving the knife to police that night, you did not tell the police that you had done so.
1.I now turn to your personal circumstances.
2.As I noted earlier, you are presently 54 years of age, you were 52 when this offending occurred and you have a criminal record without conviction for some minor offences and one conviction for a minor cannabis offence in the year 2000.
3.You were born in Glasgow in 1964 into deprived socio-economic circumstances. You have described an unpredictable and violent home environment where both parents were heavy users of alcohol. Your father physically assaulted your mother on a regular basis and your mother was not averse to assaulting your father by hitting him on the head with a cricket bat in retaliation. You grew up in an atmosphere of terror and feared that one day your father would kill your mother in one of his drunken rages. Your father was also violent to you and you anticipated violence as an ordinary part of life.
4.Despite the nature of your circumstances, you remained living with your parents until you were 33 and had met your current partner. You recall being bullied at school and you report difficulty focussing on your work.
5.You left school at age 15 and claim that it was for the purposes of caring for your mother, who was by this time suffering from multiple medical and mental health problems.
6.You developed a hobby for greyhound dogs during your adolescence and began breeding and then racing them. By the time of your arrest for the current matter, you had established a dog stud farm with up to 200 dogs at a time. You were responsible for training dogs for racing and your partner is responsible for running the business operation.
7.When you were aged 32, you were physically assaulted by strangers who punched and hit you to the head with a metal pole to the extent that you expected to be killed. You report a significant deterioration in your mental health and general functioning as a consequences of the assault. You could not go outside and experienced panic-like symptoms. Your doctor diagnosed you with post-traumatic stress disorder following the assault. You stopped breeding dogs for a period and felt that you were the one who had now to be cared for by your parents.
8.There was a gradual improvement over a period of about five years, to the point where you were able to train dogs again. You report that you continued to experience startle-like responses, including panic attacks, when confronted with certain triggers, particularly, those of an interpersonal nature.
9.Following the assault, you experimented for a time with regular cannabis use and have been prescribed codeine and other medications for your anxiety.
10.You met your current partner within 18 months of the assault and you have been together since. It appears that your partner generally manages your domestic and business responsibilities including banking, the payment of bills and medication needs.
11.A report from Mr Luke Armstrong, consultant psychologist, was tendered on your plea.
12.Mr Armstrong conducted a comprehensive assessment embracing both clinical interview and specific psychometric testing.
13.In essence, Mr Armstrong concluded that you present as a disturbed individual with chronic and multiple personality and mental health problems. This diagnosis is evidenced by:
• • intellectual functioning within the range of mild intellectual disability without an allocation of formal diagnosis of Mild Intellectual Disability within DSM-5,
• • a background of deprived environment, dysfunctional to the point of extreme, which most likely contributed to your intellectual development,
• • a current presentation involving significant life trauma consistent with child abuse,
• • a condition of Post-Traumatic Stress Disorder long-standing and present at the time of the current offending - this is manifest as a ‘highly anxious, depressed and disorganised’ presentation - whilst this was observed as reflecting situational maladjustment, it was combined with entrenched and chronic disturbance consistent with post-traumatic stress disorder,
• • features also of Dependent Personality Disorder and Borderline Personality Disorder,
• • significant defects in self-management, with difficulties in regulating emotions in an age-appropriate fashion.
1.Mr Armstrong opined also that your legacy of child abuse and serious mental health condition was present at the time of offending and in part explains your use of excessive force in response to your perceived threat. Mr Armstrong also opined that a sentence of imprisonment would likely result in a significant deterioration in your mental state.
2.In mitigation, I take into account the submissions of your counsel and, in particular:
• • Your plea of guilty for both its expression of remorse and practical effect. In so pleading you have spared the community the cost of a contested trial and removed the inconvenience and anxiety occasioned to a jury and witnesses who would be otherwise required. Any jury would have had to grapple with concepts relating to relevant states of mind, alternative verdicts and the issue of self-defence. Whilst, in my view, the prosecution had a strong case, ultimate outcomes are never certain. In the process your plea of guilty has provided certainty to the victim, which can be emotionally healing. I also accept that your decision to plead guilty was understandably an extremely difficult one for you given the circumstances of your own anxiety and mental health and should give additional weight to your guilty plea.
• • Your further expressions of remorse for your act, which I accept are genuinely felt.
• • The circumstances of dysfunctional childhood and adolescence in an atmosphere of deplorable violence.
• • Your irrelevant criminal history, particularly the absence of any previous history of violence.
• • Your history of stable relationship and hard work in establishing your canine business with your partner.
• • I accept that your prospects of rehabilitation are relatively good.
• • I take into account also your mental health, which I accept moderates the weight to be applied to your moral culpability for the offending, just punishment and deterrence, both specific and general,
• • That any time spent by you in custody will weigh more heavily on you than on a person in normal health, and there is a serious risk of imprisonment having a significant adverse effect on your mental health.
• • Furthermore, I accept that the circumstances of your offending cannot be divorced from your mental health. I accept that the history of chronic violence that you witnessed in your early life together with your cognitive deficits and experience of a serious assault in your adult life are likely to have rendered you more vulnerable to an act of aggression than to a person in normal health.
The chronology of events recorded in the closed-circuit television video reflects initial mutual verbal aggression, physical posturing and contact on the part of each of you, including striking out. However, in the later stage of the grapple, it becomes clear that you have been pushed by the victim backwards into a bar drinks table and are losing your balance. Given your serious mental health disturbance and particular propensity to experience exaggerated startled response, I cannot exclude the reasonable possibility that at that moment your instinctive reaction to hit out with the knife in your hand was a direct result of your perception that you needed to do so as a matter of self-defence. In Mr Armstrong's opinion, it is not unusual for individuals with such background as yours, when suitably triggered, to strike out as a matter of survival.
1.Nevertheless, whilst it may be accepted that your act was impulsive and reactive, your response with the use of the knife was clearly excessive and unreasonable in the circumstances.
2.Whilst the incident with the victim had graduated from argument and mutual abuse to a grapple between the two of you, it most probably would have simply ended with the pushing and shoving, had you not had the knife. It is a clear example of why it is so dangerous to be carrying a knife in public. You removed the knife from your pocket at an early stage in the confrontation.
3.The offence of intentionally cause serious injury is particularly serious, as reflected by the maximum prescribed sentence of 20 years’ imprisonment imposed by Parliament. The act was committed in the context of the use of a weapon which you were carrying at the time, and that weapon was a knife, an instrument which is capable of causing extreme injury or even death, and the event occurred at a public venue. Your conduct, accordingly, amounts to serious offending.
4.I have carefully considered the submissions of your counsel on penalty and, in particular, the authority of the Court of Appeal in the case of Boulton on the efficacy of the imposition of a community correction order as a sentencing option. I have read and considered the Supreme Court and County Court summaries of sentences imposed in other cases for this type of offending. Even in cases where an offence is mitigated by significant personal circumstances, a sentence of imprisonment may be imposed and commonly for a significant term.
5.In my view, taking into account the mitigating circumstances, the objective gravity of this offending is such that the purpose or purposes of sentencing cannot be achieved by a sentence that does not involve your confinement in custody.
6.The use of the knife was closely bound with the act occasioned in Charge 1 and is an aggravating feature of that offence and, as such, I do not intend to impose any cumulation of Charge 3.
7.On Charge 1 of causing serious injury intentionally, you are convicted and sentenced to 24 months' imprisonment.
8.On Charge 3 of use prohibited weapon in licensed premises, you are convicted and sentenced to three months' imprisonment.
9.The sentences are concurrent.
10.I direct that you serve a minimum period of 15 months before being eligible for parole.
11.The sentence starts today.
12.Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed over all charges is four years' imprisonment with a minimum period of three years to be served before eligibility for parole.
13.At the plea hearing the Crown sought an order, which you through your counsel opposed, for the taking of a forensic sample. I have made that order today for the reasons noted on the order, namely, that the seriousness of the circumstances of the offending warrants the making of the order and that the granting of the order is in the public interest.
14.I must inform you that if at the time of the request for the taking of the sample 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 police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Cullie?
15.OFFENDER: Yes, sir.
16.HIS HONOUR: At the plea hearing, the Crown also sought a disposal order in relation to the items seized by police to which you consented, and I have also made that order today.
17.I just want to address counsel for a moment. Are there any custody management matters at all, Ms Singh?
18.MS SINGH: There are, Your Honour, there is a range of medications that Mr Cullie is taking. We have spoken to the custody officers about those medications this morning before Your Honour came onto the Bench. Should I state them specifically for Your Honour's record?
19.HIS HONOUR: I do not think they specifically need to be mentioned. But is it sufficient if I say 'mental health issues and appropriate medication'?
20.MS SINGH: Yes, and perhaps 'first time in custody' would be appropriate.
21.HIS HONOUR: And I will do that.
22.MS SINGH: Thank you.
23.HIS HONOUR: I think it is important that you provide a copy of the particular medications to the custody officers, but they do not need to be specifically mentioned in the order.
24.MS SINGH: I will arrange for Mr Cullie's partner to do that.
25.HIS HONOUR: I thank you for that. Nothing else, Ms Toong?
26.MS TOONG: No, Your Honour.
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