Director of Public Prosecutions v Fabris

[2024] VCC 1866

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01899

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS FABRIS

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF SENTENCE:	20 November 2024
CASE MAY BE CITED AS:	DPP v Fabris
MEDIUM NEUTRAL CITATION:	[2024] VCC 1866

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – one charge of intentionally cause serious injury – one charge of making threat to kill – one charge of assaulting an emergency worker on duty – plea of guilty following sentence indication – Bugmy

Legislation Cited:      Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Bail Act 1977 (Vic); Disability Act 2006 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Marrah v The Queen [2014] VSCA 119; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of 10 years imprisonment, non-parole period of 7 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coulson	Office of Public Prosecutions
For the Accused	Ms E. Byrt	Stephen Peterson Lawyers

HER HONOUR:

1Nicholas Fabris, on 29 June 2023, after hearing submissions from counsel I granted your application for a sentence indication pursuant to s 207(1)(a) of the Criminal Procedure Act 2009 (Vic). I indicated that upon a plea of guilty to the charges for which you now fall to be sentenced, I would impose a specified maximum total effective sentence, that being a custodial sentence not exceeding 10 years' imprisonment.

2Mr Fabris, you have now pleaded guilty to:

(a)One charge of causing serious injury intentionally contrary to s 16 of the Crimes Act 1958 (Vic), which carries a maximum penalty of 20 years’ imprisonment;

(b)One charge of making a threat to kill contrary to s 20 of the Crimes Act 1958, which carries a maximum penalty of 10 years’ imprisonment; and

(c)One charge of assaulting an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act 1958, which carries a maximum penalty of five years’ imprisonment.

3You have also consented to the transfer of two summary charges, namely:

(a)Committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (Vic)[1]; and

(b)Contravening conduct condition of bail contrary to s 30A(1) of the Bail Act 1977.[2]

[1] (Summary charge 6) Now repealed.

[2] (Summary charge 10) Now repealed.

4You have pleaded guilty to both of those charges.

5I note that the charge of intentionally causing serious injury is a Category 2 offence and as a consequence the court must sentence you to a term of imprisonment not in combination with a community correction order, unless satisfied that one of the prescribed exceptions applies.[3] It was not submitted that any of these exceptions are applicable in this case.

[3] Sentencing Act 1991 (Vic) s 5(2H).

Circumstances of Offending

6The circumstances of your offending were set out in a summary of prosecution opening for sentence indication dated 22 May 2023 and tendered on plea as Exhibit A. At the time of the offending, you were aged 25 years.

7On 17 May 2022, you were present in your then residence at 15 Kevin Court, Traralgon. You shared this accommodation with the complainant, Terrance South, whose bedroom was adjacent to yours.  David Fitzgerald, the complainant’s cousin, Warren Dalton, Aiden King and Paul Stanley were also residing in the premises.  There was a history of animosity between yourself and the complainant during your time living at this property. You were especially bad tempered when you had been drinking alcohol.

8You left the house on the morning of 17 May and returned around lunchtime, affected by alcohol. You told the complainant that you had consumed a litre of Jack Daniels and repeatedly expressed a desire to stab everyone all the time.

9At approximately 6:20 pm that evening, while Mr. South was watching a movie in his bedroom, you behaved in an agitated fashion, moving between your bedroom and the communal areas of the house while slamming doors. The complainant knocked on your bedroom door and said, 'Keep fucken slamming doors, I’m gonna fucken slam you'. This resulted in a physical altercation between yourself and the complainant in your bedroom. David Fitzgerald heard the altercation and attended your room, causing the fight to break up. You then yelled, 'Cunt, I’m gonna stab you tonight' at the complainant as he and Mr Fitzgerald walked away from your bedroom and towards the kitchen.

10You emerged from your room with an unspecified weapon in your right rear pants pocket and approached Mr. South aggressively, saying, 'You started on me you rat', commencing another verbal argument. The complainant said 'What’s your fucken problem? Relax', to which you responded, 'I’ve been drinking…I am relaxed…You cunts pick on me all the time.'

11You continued to act provocatively towards the complainant, saying 'Let’s go bro, out the front…I’ll fucken slit you cunt.' This resulted in another physical altercation between yourself and the complainant. You attempted to stab Mr. South with the weapon from your pants pocket. David Fitzgerald observed the fighting and called to Warren Dalton for assistance in breaking it up. You twice bit the complainant’s chest, but he overpowered you and walked away once more, telling you to go to your room.

12You continued to yell abuse at Mr South, indicating words to the effect of 'You’re gonna die bro, yeah you’re gonna die…I’m gonna fuck you up', before re-entering your bedroom and slamming your door twice. The complainant went upstairs in an attempt to avoid you, but you continued to yell abuse.

13At approximately 6:30pm you yelled, 'Fuck this weak cunt in Room 5…I’ll fucken kill you cunt', while banging on the door to the complainant’s room. You continued yelling provocatively and abusively saying things including 'Come to my fucken door you tough cunt'.

14At 6:33pm the complainant came back downstairs and told you to 'Shut the fuck up'. You continued to goad him, yelling 'Come here, c’mon come here. Come here. Come here. You fucken smart cunt.' At this time you were standing in the hallway and walking back towards your room.

15Mr South approached you in the hallway and the two of you were involved in another brief physical altercation where you pushed and hit each other. The complainant then started to back away from you towards the kitchen, defensively holding up his hands up in front of himself. At this time the complainant was unarmed and silent.

16You then advanced towards Mr. South with a knife held above your head, lunged at him and stabbed him in the abdomen, right chest area and neck. The complainant immediately fell, hitting his head on a kitchen table in doing so.  Standing over the complainant, you said 'Yeah you fucken dog, you weak piece of shit'. Meanwhile he softly said, 'Help, help.'

17This attack left the complainant paralysed and bleeding on the kitchen floor. You subsequently walked back to your room, calling the complainant a 'weak piece of shit'.

18Having overheard noise created by the altercation, David Fitzgerald came downstairs to investigate. He observed the complainant lying on the kitchen floor saying, 'I can’t move.' He went to collect Warren Dalton to assist him.

19While Mr. Fitzgerald did so, you returned to the kitchen from your bedroom, positioned yourself on top of the complainant and squeezed both hands around his neck, restricting his breathing. While doing this you told him, 'Yeah, you fucken dog…I’m gonna cut you up into pieces.' This caused the complainant to believe that you were trying to kill him (Charge 2: making threat to kill).

20When Mr. Fitzgerald returned to the kitchen, he told you to get off the complainant and he called Triple 0. You ignored this direction and repeatedly moved the complainant’s head in a rapid and violent fashion. You also said things including, 'Well, he’s a fucken dickhead that stabbed himself with a screwdriver anyway you dumb cunt', and, 'I don’t care if I go to jail for this, I don’t have any family.'

21You subsequently heard the emergency sirens of an arriving police vehicle, at which time you said, 'I’m not here, I mean it, I’m not here', and returned to your bedroom.

22At 6:40 police attended the property and rendered first aid to Mr South who was bleeding heavily from three stab wounds and remained paralysed from the chest down.

23Warren Dalton told police you had assaulted the complainant. Within approximately one or two minutes you left your bedroom and walked down the hallway to the front of the home. First Constable William Flanagan asked you what your name was, which you provided as 'Nick'.

24First Constable Flanagan observed that your hands were covered in what appeared to be blood. He arrested you and searched your person, locating items including a black Oppo mobile phone, a wallet and two screw drivers. Leading Senior Constable Paul Douglas also located a blue-handled paring knife on your bed, observing the blade contained what appeared to be blood stains.

25First Constable Flanagan and Leading Senior Constable Matthew Pietzsch then escorted you to a divisional van. During this escort you actively resisted arrest, spitting at and headbutting First Constable Flanagan near the front door of the property. This necessitated First Constable Flanagan and Leading Senior Constable Pietzsch taking you to the ground to restrain you effectively.

26The complainant was conveyed to Latrobe Regional Hospital by ambulance and subsequently airlifted to the Alfred Hospital where he was treated for life-threatening injuries through approximately six hours of emergency surgery. These include: 

a)Loss of a large quantity of blood from three stab wounds;

b)Severance of part of his spinal cord, eliminating feeling in his body from the chest down;

c)Wound to the left abdomen necessitating surgical repair of his small bowel;

d)Collapse of his right lung; and

e)Ongoing impairments to his bladder, bowel and sexual function.

27I note that since sustaining these injuries, the complainant has undertaken extensive and intensive rehabilitation for his incomplete spinal cord injury. Despite this, he continues to suffer a significant loss of motor function on the right side of his body, as well as some sensory loss on the left side.

28In August 2022, the complainant’s condition was assessed by Associate Professor Andrew Nunn, the Director of the Victorian Spinal Cord Service. At that time he opined that while it is difficult to predict recovery rate from such severe spinal injuries, he expected there would be significant recovery on the left side of the complainant’s body compared to limited progress on the right side.

29Associate Professor Nunn most recently reviewed the complainant’s progress in November 2023, noting the right upper motor neurone weakness was permanent, similar in nature to a stroke. He observed greater functionality in the complainant’s left side including an ability to stand on the lower left limb but found this to be complicated by the complainant’s ongoing spasticity and lack of proprioception.

Investigation

30After your arrest you were conveyed to Morwell police station. As you were heavily intoxicated you were placed in a cell overnight and interviewed the next morning, being 18 May 2022.

31After beginning the interview with 'no comment' and 'I don’t remember' responses, you told police that you had been drinking on the date of your offending. You remarked that you do not like drinking because it gets you into trouble, causing you to forget what you have done and to end up in police custody.

32You proceeded to make various relevant comments and admissions, including:

(a)That you had never got along with the complainant in the time you lived with him;

(b)That the complainant would not leave you alone on the day of the offending, that he repeatedly tried to provoke you and had started an argument with you, in response to which you pushed him only to defend yourself;

(c)That you denied having baited, provoked or assaulted the complainant, until you were shown still images extracted from CCTV footage on the inside of the premises;

(d)Having been shown those stills you said that you must have had a knife, despite not remembering it, and that you must have stabbed the complainant;

(e)That after you stabbed the complainant you applied pressure to his neck to stop the bleeding;

(f)That the knife seized by police was one used in the assault;

(g)And you said you were aware that you had breached your bail conditions by drinking alcohol.

Victim Impact Statement

33Mr South has prepared a powerful victim impact statement. It is difficult to do justice to that statement. He states he thought he was going to die. He describes the traumatic experience of you stabbing him, the aftermath of being taken to hospital by helicopter and the pain and discomfort he has experienced in hospital whilst undergoing rehabilitation, and that he still continues to experience in everyday life. He states that what you have done has destroyed his life. He cannot walk and do the things he used to. He cannot work on the dairy farm, work that he loved. He would not wish what has happened to him on anyone else.  He states:

'I don’t think about my future because I have to live one day at a time'.

34Mr. South has a carer looking after him day and night. I take the impact of your offending on Mr South and give it significant weight. What you have done to him has absolutely devasted him. His life will never be the same.

Procedural History

35The matter proceeded to this court by way of contested committal on 17 October 2022. Mr. South was cross-examined. After directions and case management hearings in November 2022, February 2023 and April 2023, I provided a sentence indication on 29 June 2023.

36Further negotiations took place between parties following this indication and the matter resolved. You were arraigned on 8 September and a plea took place on 21 February 2024. The matter was listed for further plea on 5 April, 17 July and 4 October this year pending the provision of additional material relied upon in support of matters submitted on your behalf.

Prior Criminal History[4]

[4] Criminal Record of Nicholas Fabris (10 August 2022) (‘Exhibit C’).

37You come before the court with a lengthy criminal history. Most relevantly, you have admitted multiple violent offences such as counts of intentionally cause injury in 2015, 2017 and 2019, and recklessly cause injury in 2018 and 2019. Also admitted are various traffic and weapons offences.

38I note you were sentenced to a community corrections order in 2015 and 2018. You breached the latter order in November 2019 through, among other offences, recklessly causing injury and intentionally causing injury. That order was cancelled and you were sentenced to five months’ imprisonment.

39With regard to this criminal history, the violence of which has escalated into the present offending, it is difficult to view your prospects of rehabilitation as anything more than guarded. However, I accept that you are relatively young and as a result rehabilitation must be given significant weight. I will say more about this when I consider the sentencing principles pertinent to your case.  

Personal Circumstances

40Your personal circumstances and matters in mitigation were comprehensively and helpfully set out by your counsel Ms. Byrt, in particular, the significant matters relating to your violent and dysfunctional upbringing. I take all of these matters into account.

Childhood

41You were born in November 1996 in Traralgon. Initially you grew up with your mother, father and three siblings.[5] It is clear that your childhood was marked by dysfunction, violence, neglect and transience. To say your childhood was chaotic would be an understatement. From a very early age Child Protection were involved with your family. It seems their involvement did little to improve your family situation, and indeed at one point, having been removed from your mother’s care, you were placed to live with your father despite the very serious and significant abuse he inflicted on both yourself and your mother.

[5] Erin Byrt, ‘Defence Outline of Submissions for Sentence Indication’, Submissions in DPP v FABRIS, Nicholas, CR-22-01899, 22 June 2023, 2 [5]-[6] (‘Exhibit 1a’).

42Your counsel highlighted, by way of example, a number of significant events which were substantiated in the material subpoenaed from DHS:[6]

a)Your father allowed you to place your hands in a whipper snipper when you were aged two, to satisfy your curiosity;

b)When you were the same age he held a knife to your throat after belting your mother in the face;

c)That your father repeatedly struck you with belts and other objects;

d)That your father struck your legs with a dog chain, requiring your mother to carry you away from him and causing you an inability to walk in the days afterwards; and

e)On one occasion when you were 12 years old you refused to enter the shower, in response to which your father punched you in the nose, causing your face to strike a nearby wall.

[6] Ibid [10].

43These are just some of the examples.

44You instruct that while your sisters were also bullied by your father, you suffered the most significant physical abuse out of your siblings.[7] You were also exposed to inappropriate behaviour. Your mother experienced ongoing mental health issues. It was only through Youth Justice when you became involved in the criminal justice system that some support was properly made available to you.

[7] Ibid.

45As a child your behaviour issues were cause for you to see a psychiatrist. You were consequently diagnosed with an intellectual disability, attention deficit hyperactivity disorder and autism spectrum disorder.[8] While you did not experience difficulty making friends you struggled academically and you were referred to a specialist school, Baringa.[9]

[8] Ibid [7].

[9] Ibid [8].

46You attended Baringa until approximately 15 years of age, at which point you left your family home. You instruct your counsel that you completed Year 8.[10]

[10] Exhibit 1a (n 5) [9].

47At around 13 or 14 years of age you were introduced to cannabis which quickly progressed to daily use.[11]

[11] Ibid 3 [16].

48You left home when you were 15 or 16. At this time you ceased taking medication in treatment of your various conditions and demonstrated behavioural difficulty. I note that you spent periods of time experiencing homelessness as a teenager and a young adult.[12]

[12] Exhibit 1a (n 5) 3 [11].

49At around 16 or 17 years of age you were introduced to methamphetamine. You instruct that you used this drug regularly, albeit not daily, from that time up until your incarceration.[13] I note that you were affected by drugs and methamphetamine at the time of the present offending.

[13] Exhibit 1a (n 5) 3 [17].

50Your counsel provided substantial material obtained from each of Victoria Police and the Department of Families, Fairness and Housing to substantiate these submissions in relation to your childhood experiences.  I have had close regard to this material and the effect of your childhood trauma in mitigating sentence.

51In sum, your counsel submitted that your upbringing was 'significantly disadvantaged, marred by family violence, illicit drug use, time in residential services, transiency and homelessness, limited pro-social supports and unresolved mental health issues.'[14] I accept this was the case.

[14] Erin Byrt, ‘Defence Outline of Submissions for Plea’, Submissions in DPP v FABRIS, Nicholas, CR-22-01899, 19 February 2024, 4 [18]. (‘Exhibit 1b’).

Cognitive Functioning

52Your counsel also submitted extensively in relation to your cognitive functioning and its role in your offending.

53In support of these submissions your counsel tendered, and I have had regard to:

a)A statement of intellectual disability authored by Rebecca Holmes;[15]

b)A neuropsychological report authored by Martin Jackson;[16]

c)A psychological assessment authored by Dr Aaron Cunningham;[17] and

d)A client overview report[18] and Justice plan[19] authored by Disability Justice Coordinator, Rachel Lawrence.

[15] Rebecca Holmes, ‘Statement of Intellectual Disability’ (21 February 2023) (‘Exhibit 3’).

[16] Martin Jackson, ‘Neuropsychological Report of Nicholas Fabris’ (4 February 2024) (‘Exhibit 7’).

[17] Dr Aaron Cunningham, ‘Confidential Psychological Assessment of Nicholas Fabris’ (20 June 2023) (‘Exhibit 4’).

[18] Rachel Lawrence, ‘Client Overview Report, Nicholas Fabris’ (31 October 2023) (‘Exhibit 2a’)

[19] Rachel Lawrence, ‘Justice Plan, Nicholas Fabris’ (1 November 2023) (‘Exhibit 2b’)

54In her statement Ms Holmes opines that you have an intellectual disability within the meaning of the Disability Act 2006 (Vic).[20]

[20] Exhibit 3 (n 9).

55This is substantiated by Mr Jackson who assessed you as having a full-scale IQ of 67, consistent with a mild intellectual disability.[21] He opines that your verbal and perceptual intellectual abilities fall within in the extremely low to borderline range, and that you have weaknesses in verbal abstract reasoning, visual logical thinking, reading and letter fluency.[22]

[21] Exhibit 7 (n 16) 8.

[22] Ibid 8-10.

56Mr Jackson also discusses your ADHD, as well as your diagnosis of oppositional defiant disorder. He opines that these conditions cause you to be 'impulsive [and to] act without necessarily thinking of the possible outcomes of [your] actions', and that these behaviours are 'exacerbated by symptoms associated with oppositional defiant disorder where a person generally has a lack of respect for authority, tends to do what they want to do and would not listen to others.'[23]

[23] Ibid 15.

57Additionally, Mr Jackson opines that these behavioural symptoms 'will certainly be exacerbated by drugs and alcohol', further limiting your capacity for consequential thinking. He notes that your tendency to be 'more disinhibited' when under the influence of these substances is 'certainly evidenced in [your] history' and was directly operative in your offending. Indeed, having opined that when sober your 'problems with impulse control and rule breaking behaviour' are 'reasonably well-managed in a structured environment', Mr Jackson concludes that 'the primary factor relating to the offending is being intoxicated on drugs and alcohol, which then exacerbated [your] already existing cognitive and behavioural impairments.'[24]

[24] Exhibit 7 (n 16) 15-16.

58These conclusions are broadly corroborated by Dr Cunningham who identifies a connection between your traumatic upbringing and the present offending. In his opinion your personal circumstances imbue you with 'a lower threshold for perceiving threat' and an 'increased risk of overreacting to this perceived threat.' He concurs with Mr Jackon’s assessment that 'drug and alcohol abuse was the main contributor', in combination with your other cognitive difficulties.[25]

[25] Exhibit 8 (n 17) 4.

Application of Bugmy principles

59Counsel submitted on your behalf that your disadvantaged and violent upbringing ought to operate in mitigation of your moral culpability at sentence, in line with the principles articulated in Bugmy v The Queen.[26]

[26] (2013) 249 CLR 571 (‘Bugmy’).

60It was further submitted, as per the Court of Appeal’s reasoning in Marrah v The Queen, that your childhood deprivation 'must be given due weight in the sentencing calculus'.[27]

[27] [2014] VSCA 119 (‘Marrah’) [16].

61Having regard to the submissions and supplementary material evidencing the severe childhood disadvantage that you suffered, I am satisfied that it is linked to the present offending. It would have had a corrosive effect on your decision-making and consequent moral culpability.

62I accept, and there is no dispute from the prosecution, that the principles enunciated in the case of Bugmy v The Queen[28] have application.

[28] (2013) 249 CLR 571 (‘Bugmy’).

63This is relevant to the court's assessment of your moral culpability and general deterrence. Pursuant to Bugmy an offender's background of deprivation is relevant because his or her moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way.  I have taken this into account and moderated your sentence accordingly.  However, while a disadvantaged background may have the effect of reducing moral culpability, it will also increase the importance of protecting the community.  I give it meaningful weight in determining an appropriate sentence.

Application of Verdins

64Having regard to the various cognitive and mental health diagnoses discussed, counsel also submitted on your behalf that the principles enunciated in R v Verdins have direct application to this sentencing exercise.[29] Specifically, it was submitted that having regard to your limited cognitive capacity;

1.That your moral culpability for the offending ought to be similarly reduced;

2.That the significance of general deterrence is moderated given that you are not an 'appropriate medium for making an example of others';[30] and

3.A custodial sentence will weigh more heavily on you than on an individual who lacks those impairments.

[29] [2007] VSCA 102.

[30] R v Mooney, unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 5, cited in Muldrock v The Queen (2011) 244 CLR 120 at 53.

65In regard to your moral culpability, counsel submitted that your underlying impulse control issues, albeit exacerbated by intoxication, were causally linked to your offending. The prosecution refers to the opinions of both Mr. Jackson and Dr. Cunningham to the effect that alcohol and other drug use were the main contributors to the offending.

66I accept that your mental health played some role in your offending, however, these symptoms were undoubtedly exacerbated by your substance abuse. Indeed, it is difficult to disentangle the role that substance use played from your mental health issues. However, I am prepared to accept that there is a nexus between your mental health and the offending, and I am prepared to find that your moral culpability is reduced, but the weight I give to this is limited.  I accept that the significance of denunciation as a sentencing considering, when balancing your mental impairments against the gravity of your offending, is moderated to a limited extent.

67Counsel further submitted that you are an unsuitable vehicle for general deterrence through sentencing, by virtue of your intellectual disability. I accept this to an extent, however, again, I note the primary causal factor in this offending was your self-induced intoxication rather than your intellectual disability.

68It is also submitted that your mental impairment will make your experience of incarceration a particularly onerous one. I accept, as was opined by Dr Cunningham, that your tendency to elevate perceived threats is more likely to be triggered in a custodial environment than in the community. To that end, Limb 5 of Verdins has application.  You do not appear to have suffered any deterioration in your mental state in custody

69Since your arrest you have engaged in a number of alcohol and drug courses whilst on remand. You have been working as a maintenance billet. You have remained abstinent from drugs and alcohol. You have not been on any medication. You have reportedly engaged well with prison-based programs, as is evidenced by the certificates that you have obtained.

70You are now 27 years old. At the time of the offending you were still relatively youthful. The courts have recognised that young offenders may lack the degree of insight, judgment and self-control possessed by an adult and may not fully appreciate the nature, seriousness and consequences of their conduct. I accept this, however, you were 25 years old and now that you are 27 other principles concerning young offenders carry less weight, such as your exposure to corrupting influences while in custody. Nevertheless, I also accept that given your age you do have the potential to be rehabilitated. It is in the public interest to see you rehabilitated and reintegrated into society. There is a close correlation between your rehabilitation and community protection. However, this must also be balanced against other sentencing objectives, in particular, an offender’s youth is of less significance as the gravity of the offending increases.

Plea of Guilty

71I take into account your plea of guilty.  It has significant utilitarian value, you have saved the community the time and expense of a trial, you have spared witnesses from having to give evidence, and most importantly the complainant from having to relive the experience at trial. The sentence should be appropriately discounted to reflect this. I note, however, that as a result of you running a contested committal Mr. South has been cross-examined at an earlier stage in proceedings. It is therefore not an early plea.  It is also a plea in the face of a reasonably strong prosecution case.

72At the time you indicated your intention to plead guilty, the courts were facing a backlog associated with the COVID-19 pandemic. Whilst there has since been an audit of outstanding trials, and the backlog of trials is relatively the same as it was before the pandemic, there must be some recognition that in entering a plea of guilty when you did that you have contributed to the reduction in the backlog. To that end your plea of guilty warrants an appreciate amelioration of sentence consistent with what the Court of Appeal said in Worboyes v The Queen.[31]

[31] [2021] VSCA 169.

Remorse

73Turning now to your remorse and prospects of rehabilitation.

74Mr. Jackson notes that at the time of assessment in January this year, you demonstrated very little remorse and attempted to explain away your behaviour. Your limited remorse is considered unsurprising given your cognitive limitations of your intellectual disability and ADHD.

75I take this opinion into account however, I also have regard to the letter that you have prepared addressed to Mr South in which you did in fact express your remorse at your behaviour. In that letter you appeared to exhibit some insight into your behaviour. I take this into account. It reflects some change in your perception of events and is consistent with your plea of guilty.

Prospects of rehabilitation

76Mr. Jackson opines that your prospects of rehabilitation depend on a number of issues: improving your ADHD symptoms with medication and ceasing alcohol and drug use. Should you be able to accomplish either of those your prospects are improved. Referral to a psychiatrist is recommended, as is ongoing support to remain abstinent. Any supports would need to be lifelong as Mr. Jackson considers that you are highly likely to revert to past behaviours if put under novel situations in which you cannot cope. You are considered a significant risk of relapse without stable accommodation and supervision. A residential accommodation service would be best.

77The fact that you have engaged in programs in custody is to your credit. You are still capable of learning and engaging with new programs and this bodes well for your prospects of rehabilitation. Although I note the limited remorse found by Mr. Jackson to have been exhibited, as I have said, I have had regard to the letter which you have prepared which indicates that you are remorseful, and this is important when considering your prospects of rehabilitation.

78Balanced against this is your relevant and lengthy prior criminal history. In light of that history, and without you remaining abstinent and receiving appropriate mental health treatment, it is difficult to say your prospects of rehabilitation are any more than guarded. Your intellectual disability makes it difficult to regulate your emptions. With treatment and support your prospects are improved.

Delay

79The offending here occurred two and a half years ago. You have now been in custody for 859 days. Since you first indicated your preparedness to plead guilty, there have been considerable delays, none of which are of your making. Mostly, this was due to your legal representatives subpoenaing relevant government departments for information relating to your childhood experiences and criminal proceedings in which you were a victim at the hands of your father. This material is important, and whilst for the purposes of the sentence indication hearing I was prepared to accept that these matters could be substantiated, they have now been confirmed in the various records. The return of material the subject of subpoenas has taken some time, and an unfortunate consequence of this delay is that these proceedings have been hanging over your head for some considerable time, which was no doubt stressful. It has also had the regrettable outcome of prolonging the proceedings for Mr. South.

Sentencing Purposes

80I have had regard to each of the sentencing objectives set out in the Sentencing Act 1991 (Vic). These include deterrence, just punishment, denunciation, rehabilitation and protection of the community. In determining the appropriate sentence, I have taken into account the gravity of the offending, your culpability which I consider to be high, the maximum penalties applicable, and I must balance these with your personal circumstances and matters in mitigation.

81General deterrence is an important sentencing consideration. The public must understand that offending of this nature will be met with a lengthy term of imprisonment. So too is specific deterrence having regard to your extremely poor criminal history including many previous violent offences. It is very concerning and sadly it seems not much has deterred you in the past.

82It is important also to denounce your conduct and impose a sentence that is just in all of the circumstances. Community protection is also a very relevant consideration, and this has to be balanced with your rehabilitation.

83I have had regard to current sentencing practices. The prosecution provided me with some comparable cases. Self-evidently, no two cases are alike.  One of the cases involved a particularly young offender, another involved an older offender with no prior criminal history. Current sentencing practices is but one of the considerations.

Nature and Gravity of offending

84The offending here was extremely serious. That Parliament has seen fit to impose a mandatory custodial sentence on Charge 1 and attach a high maximum penalty, reflects the gravity of this crime. This is a serious example of a very serious offence.

85You were in an alcohol or drug-fuelled fit of rage. This sort of display of anger in the presence of other residents was not unusual. You found yourself in a confrontation with Mr. South. Although he tried to end the arguments with you, you persisted to seek him out and be aggressive. Then you armed yourself with a knife. Judging by the things you said to him, you were intent on hurting him. Mr. South sought to put up his arms defensively.

86You stabbed him multiple times, lifting the knife high above your head and lunging at him. Even when he fell to the ground you were still enraged and jumped on him and abused him while he pleaded for help. Your attack was vicious, a callous and wanton display of violence. Having walked away, you could not let him be. That you returned to squeeze his neck, threatening to kill Mr. South, compounds the gravity of this offending. This must have been utterly terrifying for him. Your threats amount to a serious example of making threat to kill given the circumstances. As others sought help for Mr. South, you were still interfering with his neck, and in a pathetic attempt to absolve yourself of responsibility, cowardly accused him of inflicting the wounds on himself. Your conduct towards him was totally reprehensible.

87The consequences for Mr. South are utterly life changing. He is completely reliant on others for everything. He will require a wheelchair for the rest of his life, and you did that to him.

88Your deliberate conduct, your prolonged assault of him and the consequences that followed, make this very grave offending indeed.

89As for the offence of assaulting emergency workers, clearly you were highly agitated and intoxicated. Police should not have to put up with this.  That you headbutted a police office as you resisted arrest also warrants some individual punishment.

Serious Violent Offender provisions

90Charges 1 and 2 are relevant serious violent offences pursuant to Schedule 1 of the Sentencing Act 1991 (Vic). [32]

[32] sub-clauses 3(b)(i) – intentionally cause serious injury, and 3(b)(i)(iii) –  threats to kill.

91Because I intend to sentence you to imprisonment on all charges, you fall to be sentenced on Charge 2 as a serious violent offender. The effect of sentencing as a serious violent offender is that the court must regard protection of the community as the principal purpose for which the sentence is imposed. The court must, unless otherwise directed, order that the sentences be served cumulatively.

92Furthermore, I must enter into the record that you were sentenced as a serious violent offender.

93I have made moderate orders for cumulation given that the offending occurred over a single, albeit protracted episode, and having regard to totality.

Sentence

94As I said before, you have been in custody since your remand, however, I understand that you were sentenced on 23 February 2023 at Bairnsdale Magistrates Court for charges of recklessly causing injury, unlawful assault and assault with a weapon for offending which occurred on 13 November 2021, and you were sentenced to two months' imprisonment.  I take that period of custody into account when having regard to totality. 

95I must ensure that the sentence that I impose for these offences are just and proportionate, and having regard to issues of totality, I must ensure that the sentence that I impose is not a crushing one having regard to those matters.  I have also had regard to the principles of parsimony.

96As I have said, this offending occurred over one episode, and although there is some need for some cumulation, I have had regard to the question of totality when it comes to determining the final sentence.

97Mr Fabris, on Charge 1 of intentionally cause serious injury, you are convicted and sentenced to nine years and four months' imprisonment.

98On Charge 2, making threats to kill, you are convicted and sentenced to 18 months' imprisonment.

99On Charge 3, assault emergency worker on duty, you are convicted and sentenced to six months' imprisonment.

100On the summary charge of committing an indictable offence whilst on bail (Summary Charge 6), you are convicted and sentenced to one month imprisonment. This is to be served concurrently with the other sentences imposed this day.

101On Summary Charge 10 (contravene conduct condition of bail), this charge is proven and dismissed. 

Orders for cumulation

102The sentence imposed on Charge 1 will be the base sentence.

103I order that six months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1.

104I order that two months of the sentence imposed on Charge 3 be served cumulatively with the sentences imposed on Charges 1 and 2.

105I order that the term of imprisonment imposed on Summary Charge 6 be served concurrently with the sentences imposed this day.

106This equates to a total effective sentence of 10 years' imprisonment.

107I fix a non-parole period of seven years and three months' imprisonment. That is the period that must be served before you become eligible for parole.

108Having been convicted and sentenced to a term of imprisonment on Charge 1, I have sentenced you as a serious violent offender on Charge 2 and this will be noted in the records of the court. I have ordered, as I have said, considerable cumulation on this charge given its proximity to the offending on Charge 1.

Pre-Sentence Detention

109Pursuant to s 18 of the Sentencing Act, I declare 859 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.  

Section 6AAA

110Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to a total effective sentence of 13 years' imprisonment with a non- parole period of nine years.

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