Director of Public Prosecutions v Debono
[2012] VCC 1180
•17 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No CR-12-00895
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAVIOUR DEBONO |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 17 August 2012 | |
DATE OF SENTENCE: | 17 August 2012 | |
CASE MAY BE CITED AS: | DPP v Debono | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1180 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. A. Flynn | |
| For the Accused | Ms J. Fallar |
HIS HONOUR:
1 Saviour Debono, you may remain seated for the time being.
2 You have pleaded guilty to an offence that on 8 November of last year, without lawful excuse, you intentionally caused serious injury to Alma Mopac Debono, your wife.
3 You have no prior convictions.
4 The maximum penalty for the offence is 20 years imprisonment
5 The prosecution has tendered a Summary of Prosecution Opening which is Exhibit A on the plea and I incorporate that in its entirety into these reasons for sentence. The content of that document had been canvassed in recent times. Suffice it to say, that you met your wife whilst on a trip to the Philippines in 2005. She moved to Australia in February 2007 to live with you at your home at Portarlington.
6 You were married in April 2007 and your wife's son came to live with you in 2009 when he was, I think about 16 or 17 years of age. He is 19 years of age now.
7 You apparently separated in March 2010 and your wife moved back to your home on 22 May 2011. Her son also moved back with you to your home in Portarlington. It seems that the relationship in the period after your reconciliation was less than satisfactory, certainly, from your point of view.
8 By November of last year your wife was working as a Constant Patient Observer at the Geelong Hospital. At about 7 am on 8 November 2011 she returned from work on the night shift to your home. You and her son were up and about at that time and you took her son to the bus stop so that he could go to school.
9 When you returned home your wife went to lay on the bed. You apparently went to lay next to her and asked her for sex. She indicated that she wished to sleep first. When you got up from the bed at that stage you appeared to be upset and angry. When she asked you where you were going you said you were going to a friend's house. But about 20 minutes later you returned to the bedroom. At that time you were holding a piece of wood, which it seems from the photographs - Exhibit B - was an old and partly broken pickaxe handle or handle of some other such garden or agricultural tool.
10 Your wife was still laying on the bed. You told her that you were going to kill her. You then set about her with the piece of wood hitting her first on the legs. When she stood up to try and get away from you you punched her twice to the jaw knocking her back on to the bed where you then hit her, apparently with the piece of wood, to the top of the head.
11 Thereafter she put up some resistance and the incident moved to the vicinity of the bathroom door where you apparently grabbed some white packing tape and wrapped it around her neck.
12 It is evident from the Prosecution Opening and from the photographs that you caused your wife serious injury.
13 She was found, when examined at the hospital, to have a ten centimetre full thickness laceration to the crown of her scalp with large surrounding bruising that required seven stitches. There was also multiple bruising and swelling to her face including the cheekbone, temple and jawbone. There was also bruising on the neck, torso and upper back and multiple deep and linear abrasions of both upper arms and a large bruise over her right mid-shin approximately 15 centimetres in diameter.
14 Clearly, this was a serious assault upon a defenceless woman with a weapon, and it was committed in her own home by her own husband whom she was entitled to trust to look after her welfare.
15 The prosecution also tendered a Victim Impact Statement which is Exhibit C on the plea. I take note of the content of that which indicates that there are clearly ongoing emotional issues which affect the victim, your wife, arising from the assault upon her. I take note of objections raised to parts of the Victim Impact Statement said to be inadmissible and I read the document by reference to those parts, which appear to me to be relevant and admissible. Inevitably an assault of that kind is going to, not only cause physical injury, but is going to cause - at least short to medium term, if not long term - psychological consequence to the victim.
16 Turning to the matters personal to you. You are now 62 years of age. Your counsel tendered on your behalf a bundle of documents which consisted of reports from two psychologists, a letter from your treating physician and from the treating physician of your father and a number of character references to which I referred specifically during the course of the plea hearing. Those documents are Exhibit 1 on the plea.
17 It is very much to your credit that, having arrived at the age of 62 years, you have no prior convictions. That is a significant mitigating factor. Nor, it seems, have you had any other issues with the police or the criminal justice system since these events.
18 It is plain that you indicated a plea of guilty at an early stage and I give you credit for your plea of guilty as an indication of your remorse and also in that it has clearly facilitated the administration of justice and spared your wife the trauma of having to give evidence about these events.
19 There is other evidence which supports the proposition that you are genuinely remorseful. It seems that your conduct during, to some extent, and after the event, and what you have said to two psychologists who have reported and indeed to those who have provided character references, suggest that you are genuinely remorseful for your conduct.
20 This is to be characterised as an isolated instant, out of character in an otherwise blameless life which is characterised by service to and care for others and a good deal of effort put into parenting three children, substantially alone, and also care for your father in more recent times.
21 You were born in Malta and came with your family to Australia in 1964 aged 14 years of age. You had little schooling in Malta and I think no schooling in Australia yet you went to work soon after your arrival and you demonstrated a solid work ethic which you maintained until you suffered a work related back injury in 1985 when you were in your mid 30s. You have been unable to work since.
22 That has consigned you to reliance upon a disability pension, which despite that, has not inhibited your ability to parent the three children which you brought up and who have come to court today.
23 I do not think I need dwell on the details of your previous relationships with women. There were three substantial relationships, the last one of course, being that with the victim of this offence. The detail was canvassed more fully in the course of the plea.
24 Ms Fallar, on your behalf, has also very helpfully submitted a summary of her submissions in written form which is Exhibit 2 on the plea and they too set out more fully many of the matters personal to you which are relied upon. I have read all that and they are, I think, reflected also in the reports of the two psychologists to whom I have already referred.
25 All of that, I think, underscores what I have already said about you, is that you have led a blameless life up to this offending conduct and since. Your behaviour in the community has been exemplary in all other respects.
26 Without going into great detail about the nature of the relationship with the victim of this offence it seems that your feelings for her were not reciprocated, at least in the latter period of the relationship prior to this offending conduct, and caused you to feel as though you were being used by her. I do not think I need make findings as to the precise events which led to that but I am satisfied that you did have that view the you were being used and all of that caused you considerable anxiety over the period, particularly the latter period of the relationship in 2011, leading up to the date of this offence.
27 The plea was focused on persuading me that your moral culpability was significantly reduced by the mental impairment that was said to have been identified by the two psychologists who have reported upon you. That those symptoms also have the effect that they will impact upon your ability to cope with a term of imprisonment. That these are symptoms which impact, not only on you at the time of the offending, but also impact upon you now at this point, where I have to consider what an appropriate sentence is for this conduct.
28 The plea was put on the basis that mental impairment, or those mental impairments, engaged the principles that have been identified and articulated by the Court of Appeal in this State in the well known case of R v. Verdins and it was submitted that those principles were engaged on the basis of the evidence that is relied upon on your behalf.
29 I was helpfully referred to two relatively recent authorities, firstly, R v. Charles (2011) VSCA 399 and R v. Sikaloski (2012) VSCA 130. In those cases many of the other Court of Appeal decisions where the Verdins principles have been applied were analysed and canvassed. Those authorities do help illuminate the basis upon which a sentencing court should consider the question of mental impairment when it is said to bear upon the sentencing discretion.
30 The evidence relied upon in this case to establish that there was, relevantly, a mental impairment or there were, relevantly, mental impairments, arises from the two psychological reports; that of Warren Simmons and that of Dr Simon Kennedy. Mr Simmons sums up the position on p.5 of his report where he says and I quote, "With regard to the offences Mr Debono was unable to provide any significant insight into why he acted as he did. His actions appear to have been the result of feelings of anger and hostility although he expressed remorse for his actions and did not attempt to justify them. They seem significantly out of character given his previous history. That there were suggestions that he had become frustrated and annoyed at the nature of his relationship and the fact that he felt 'walked over' and taken advantage of. It would seem that in his mind he has always attempted to please his partner. This was not always resulting in any significant reciprocation. While Mr Debono presented with mild depression at the current time there is no doubt that his anti-depressant medication has contributed to his improved emotional state in this regard. He did indicate suffering from depression prior to this and there is no doubt that this may have had an impact on his behaviour but Mr Debono could not provide information with regard to this."
31 Dr Kennedy in his report at p.8 under the heading, "Mental Health Issues" had this to say. Paragraph 26, "Mr Debono has had some heart related difficulties over the last several years and uses an angina spray. He takes cholesterol medication. He has had problems with pain following his back injury and has consistent treatment for the pain. Equally, he appears to have adapted relatively well and has a relatively simple life. Prior to the current circumstances Mr Debono has not had difficulties with depression. His mental health history is unremarkable. He reported from early 2012, in particular onwards, symptoms of depression. Nevertheless he has had depressive symptomology from 2011 onwards with high levels of anxiety in relation to his relationship as he has been uncertain about the progress of the relationship over that time. Mr Debono has been treated with anti-depressant medication over the last two months." The report dated 24 May 2012. I will go back. "Mr Debono has been treated with anti-depressant medication over the last two months. Historical information would indicate that from 2011 onwards he has had significant issues to do with anxiety and depressive symptoms a culmination in November 2011. Major symptoms relate to the stress associated with the relationship. He describes being consistently upset over the last several years in the context of the relationship and the uncertainty associated with the relationship. He describes, in a sense, that he is being used. The anti-depressants, from his perspective, are assisting him but they are keeping him drowsy. There are some negative side effects. Mr Debono has never taken anti-depressant medication or any other psychiatric or major depression for emotional reasons. His general practitioner is prescribing the medication."
32 Then under the heading of "Conclusions" on p.15 of his report, Dr Kennedy describes, or summarises, the history of the relationship between you and your wife culminating in the circumstances in 2011 which left you feeling uncertain about the continuing nature of the relationship. He goes on to say, "This lack of certainty and confusion in the relationship led to Mr Debono's anxiety and depressive symptoms (Adjustment Disorder with mixed anxiety and depressed mood) over 2011 which remained untreated. In November 2011 it would appear that fights regarding these circumstances increased and on one occasion Mr Debono has struck his wife as indicated in the charges. My understanding is that he would plead guilty to these charges. Based on Mr Debono's history, it would suggest that he was experiencing anxiety and depressive symptoms over that time. These symptoms in themselves do not fully account for his behaviour, however considering there is no similar pattern of behaviours at any point in his life, it is inevitable that his anxiety and depressive symptoms contributed in part to his behaviour leading to the short period of disinhibition."
33 I pause there to say that really that seems to be the high point of the evidence upon which it is suggested I should conclude that there is a substantial and a real nexus between the mental impairments identified by the two psychologists and this offending conduct such as should lead to a reduction of the moral culpability attributed to the accused for this offending conduct.
34 It seems to me that the evidence falls well short of establishing what the authorities indicate is an exceptional legal principle, or collection of legal principles, to be applied only where a real nexus has been demonstrated by the evidence. It seems to me that this nexus, or what is said to be a nexus, arises on a speculative basis. At best, a deductive basis postulated on the proposition that the accused never behaved like this before, and therefore his conduct is attributed in some way to these symptoms which go to support the diagnoses of the two psychologists.
35 I do not suggest that his symptomology is irrelevant but I am not satisfied that the evidence is such as to engage the Verdins principles insofar as they go to reduce moral culpability or go to reduce the significance of individual or general deterrence.
36 So far as the question of whether the mental impairments that he suffers from now are capable of engaging the Verdins principles, it seems to me, again, the evidence falls short. Rather, it seems that the medication that he is presently on is effectively treating the conditions. I note reading on in paragraph 41 or Dr Kennedy's report that he says this, "Mr Debono is currently being treated with anti-depressant medication with some positive effect. The psychological condition is temporary and following the cessation of the court proceedings it is likely that he will continue to improve and should recover fully."
37 I think for completeness I should read paragraph 42 where Dr Kennedy says, "Mr Debono's anxiety, anger and depressive symptoms are likely to have contributed to disinhibition in the incident in question and as such contributed to the offensive behaviour." Again, part of the material relied upon by Ms Fallar to support her submissions as to the engagement of the Verdins principles. He goes on, "As I indicated, in my opinion, it is highly unlikely that Mr Debono's depressive symptoms would continue in the future and it is unlikely that they would reoccur. He is a man with a back condition and this may make it somewhat more difficult if he was incarcerated. I think as to the back condition and his ongoing angina/heart conditions that they do have some capacity to make life difficult for him, or more difficult for him, in serving a prison sentence."
38 It seems to me, with respect, that the incident arose certainly against a background of anxiety, a background of depressive symptoms but that it arose out of anger and not from the symptoms that support the Adjustment Disorder and mixed anxiety and depressed mood diagnosed by the psychologists.
39 I do note the period of anxiety and I think it is contextually relevant and I do note, as I have already said on more than one occasion, that you genuinely, I think, felt that you had been taken advantage of by your wife and that the nature of the relationship had, clearly, left you with the anxiety and depressive symptoms that were identified by the psychologists. I think, contextually, that is relevant but not so as to engage the Verdins principles to reduce your moral culpability.
40 I think that it is clear also though, from the psychological reports and from the references that have been provided and form part of Exhibit 1, that you are very unlikely to offend again. I think that you are a good candidate for rehabilitation. I think it is to be expected that you will enjoy the support of your friends and family and that support I think, it seems from your past conduct, you richly deserve.
41 I think that Ms Fallar was realistic in her assessment of the sentencing conundrum that I have to confront and that is whether, in all the circumstances, I can consider a sentence that does not involve your incarceration. She, rightly, I think, pointed out that the Community Corrections Order is designed for circumstances in which, even where the offending conduct is serious, that it can be a suitable alternative to a term of imprisonment. It seemed to me that her submissions were well balanced and well considered in presenting that as an alternative.
42 I have a number of competing sentencing considerations to take into account and to ensure that, as a judge of this court, I give proper weight to. I am bound to consider the maximum sentence for this offence being 20 years imprisonment. I note that it involves, not just causing serious injury, but intentionally causing serious injury.
43 I am bound to punish you adequately for your offending conduct and to express the denunciation of this court of conduct of this kind. I do not discount the need to consider and to give adequate weight to deterring you from conduct of this kind in the future. I think it is very unlikely that a circumstance will arise again which gives rise to the kind of conduct that you engaged in on this occasion. On that basis I do not regard it as being, by any means, the most significant of the sentencing considerations. Rather, it seems to me, that the principle of general deterrence, that is deterring others, is much more significant in a case such as this.
44 I have to consider the fact that a person is entitled to feel safe in their own home. They are entitled to feel safe in the company of their husband. They are entitled not to be set upon when lying on their own bed by their husband who is wielding a pickaxe handle or some such implement in a way that, apparently, was intended to cause serious injury from the very word "go" accompanied by expressions of intent to kill. You are not charged with an attempt to kill, you are only charged with and have only pleaded guilty to, an offence involving intentionally causing serious injury.
45 Not only was this a very frightening incident which is likely to have induced fear in your wife that she would be killed but it did cause, as it was intended to, serious injury. There is, I think, apparently significant community concern about domestic violence and the courts have to play their part in denouncing conduct of this kind and ensuring just punishment and that adequate attention is given to general deterrence when cases of this kind come before the courts.
46 Against that I must consider the various factors that I have referred to and which are in more detail set out in the written submissions, Exhibit 2, on your behalf. I need to facilitate your rehabilitation to the extent that it is consistent with the competing considerations that I have to bring to bear to the sentencing process.
47 In all the circumstances I regard the submission by the prosecution that no sentence other than one involving your immediate imprisonment is appropriate in all the circumstances. I am not satisfied that in this case a Community Corrections Order is within the range of appropriate sentences that is available to me. In those circumstances I feel compelled to impose a term of imprisonment.
48 The prosecution has put forward a range of sentences between three and four years as a head sentence and between two and three years as a minimum non-parole period.
49 MS FLYNN: Your Honour, can I just clarify that, it was three to five years.
50 HIS HONOUR: Three to five years, I am sorry, three to five years. I do not criticise the prosecution for putting forward that range, but I think that in all the circumstances, the mitigating factors in this case, including the elements relevant to your mental and physical health and the context of the relationship at this particular time and your conduct afterwards, do indicate a sentence that is below that range.
51 Mr Debono, would you please stand. For the offence of intentionally causing serious injury on 8 November of last year I convict you and I sentence you to a term of imprisonment of 33 months.
52 I order that you serve a period of 22 months before you become eligible for parole.
53 But for your plea of guilty I would have sentenced you to a term of imprisonment of three years and nine months with a non-parole period of two years and nine months.
54 Now are there other orders?
55 MS FLYNN: There are, Your Honour,
56 HIS HONOUR: Yes, you may sit down now.
57 MS FLYNN: A retention order pursuant to s.464ZFB of the Crimes Act and the disposal order.
58 (Orders signed.)
59 HIS HONOUR: I also make the orders for retention of forensic sample and for disposal of property in accordance with the drafts submitted.
60 MS FLYNN: As Your Honour pleases.
61 HIS HONOUR: Thank you.
62 MS FALLAR: Sir, when the court is ready. In the course of the management can I seek that a copy of - there's a medical report with all his medication - if that can be provided to Corrections.
63 HIS HONOUR: Yes, certainly, I think that is a very good point and I order that the report of Dr Malcher, I think it is; isn't it?
64 MS FALLAR: Yes.
65 HIS HONOUR: Be provided to the Corrections Department as indicating the medications that your client is presently on and with a notation that those matters be given appropriate attention.
66 MS FALLAR: As the court pleases.
67 HIS HONOUR: I thank both counsel for their assistance.
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