Director of Public Prosecutions v Fiske
[2021] VCC 2112
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES FISKE |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2021 | |
DATE OF SENTENCE: | 13 December 2021 | |
CASE MAY BE CITED AS: | DPP v Fiske | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2112 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Intentionally cause injury - Threat to kill - Early plea of guilty - COVID-19 pandemic - Bugmy principles - Conditions in custody during COVID-19 pandemic - Guarded prospects of rehabilitation.
Legislation Cited: ss 5, 6AAA, 14 Sentencing Act1991 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Bortoli [2006] VSCA 62; R v Rich (No 2) [2002] VSCA 17; R v Stares [2002] VSCA 70; Spiteri v The Queen [2018] VSCA 254; Worboyes v The Queen [2021] VSCA 169.
Sentence: 16 month’s imprisonment, new non-parole period of four years and four month’s imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Webster | The Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1James Fiske you have pleaded guilty to one charge of intentionally cause injury and one charge of threat to kill. Both carry a maximum penalty of 10 years' imprisonment.
Circumstances of the offending
2The full circumstances of your current offending are set out in the summary of prosecution opening dated 23 November 2021, marked as Exhibit A on the plea.
3In brief, at the time of the offending you were 27 years of age. The victim of your offending is Dean Buschmann, who was aged 42 years. You knew Mr Bushmann, having previously met while serving respective sentences of imprisonment.
4
In early 2020, when you were in custody, Mr Buschmann commenced a relationship with Hayley Cavanagh. In the days leading up to the 11 June 2020
Ms Cavanagh told Mr Buschmann that he should not have fallen in love with her as you were getting out of gaol, you and she were still together and she thought someone may have told you about their relationship. Mr Buschmann did not see Ms Cavanagh again after this exchange, as she would not return his calls. On the 10 June 2020, he received a text message from Ms Cavanagh's mother, which included the following ‘I didn’t tell you he’s out and riding around, just be careful.’
5In the early hours of the 11 June 2020 Mr Bushmann was asleep in his caravan. He was woken when he heard someone jumping the fence to the property. He opened the door and was suddenly struck to his head by an unidentified person and fell to the ground. He was further struck and lost consciousness. He was then dragged by unidentified persons from his caravan to the nature strip, approximately 50-60 metres away.
6Mr Buschmann woke and was able to get to his feet. At this point, you happened upon him and struck Mr Buschmann to his jaw, causing him to fall to the ground. As he was attempting to get to his feet, you further struck him twice to his face/head. Mr Buschmann fell to the ground and lost consciousness. Your actions, that is, after the point that you happened upon him, constitute Charge 1, intentionally cause injury.
7Following the assault two photographs were taken of Mr Buschmann lying motionless on the nature strip. These photographs were later found by police on your phone. They were sent to a person referred to as ‘Billy New’ with the following message,
‘I got Dean bro haha fucked him up [and to Ms Cavanagh, with the message] That’s what you left me for haha after I knocked him out he was screaming … like a little fucker bitch wait and see what I do to him today.’
8In the early hours of the 11 June 2020 Ms Cavanagh found Mr Buschmann and took him to hospital where he was admitted. On 15 June 2020, while in hospital, he received a Facebook message on his mobile from you, which read as follows:
‘Let's go ya dog you wanna fuck with me. I'm the one who knocked you out the other night. I'm Haylea's boyfriend you fucken skunk where are you this time I'm gonna put a fucken bullet in ya dog your gonna be begging for your life im sitting here loaded and waiting for ya dog your gonna be beggin' for ya life I'm sitting here waiting for ya. You better hide and not be in whit. You can't fuck with me cunt’.
9That message constitutes Charge 2 on the indictment, make threat to kill.
10Upon his admission to hospital on 11 June 2020, Mr Buschmann presented with a reduced consciousness and borderline low respiratory rate. He was also noted to have been clinically substance-affected.
11Upon examination it was determined that Mr Buschmann had suffered the following injuries:
(a) A nasal fracture, including inflammatory fluid in the sphenoid sinus;
(b) A fractured left jawbone;
(c) Bruising around the left eye; and
(d) A right-sided frontotemporal laceration.
12Photographs of Mr Buschmann’s injuries, taken at various times, were received and marked as Exhibit C on the plea.
13It was agreed between the parties that you caused all injuries save for the laceration described above, which could not be excluded as having been caused during the earlier assault on Mr Buschmann.
14On 13 June 2020 Mr Buschmann underwent surgery to repair his injuries, including:
(a) Open reduction and internal fixation surgery in relation to the fractured jaw, which included the extraction of a tooth and the insertion of a titanium plate and seven screws; and
(b) General anaesthetic manipulation surgery in relation to the fractured nose, including the fixing of a splint.
15On 14 June 2020 Mr Buschmann was discharged from hospital but he returned to emergency the following day complaining of left-sided facial swelling/bruising and pain. He was found to have excess fluid in front of his left ear and behind his jaw and the next day he was discharged with pain relief and a follow up appointment, which he did not attend.
16On 25 June 2020 he attended the ophthalmology clinic complaining of double vision and dizziness but left before he was assessed.
17On 1 September 2021 he provided a police statement and detailed the ongoing issues he was experiencing including pain, restrictions and tenderness to his jaw and vertigo.
18On 1 July 2021 you were arrested at your home and taken to the Geelong Police Station for interview. You were then remanded in custody.
Gravity of the offending
19Mr Fiske, the seriousness of your offending is reflected in the maximum penalties set by Parliament. You assaulted an unsuspecting victim without provocation, when he was alone and it was dark. It seems that you were motivated by seeking revenge against Mr Buschmann for being in a relationship with your girlfriend at the time. You first struck Mr Buschmann to the jaw, causing him to fall to the ground. You then continued to assault him as he tried to get to his feet. The injuries sustained by him were numerous and substantial, requiring a second admission to hospital following his initial discharge.
20It was not suggested that your offending involved any particular degree of pre-planning. Also, I note that you were not in company at the time of the assault and it did not involve the use of any weapons. Nevertheless, for the reasons indicated, I do regard your offending as serious.
21After the assault you photographed Mr Buschmann lying on the ground bleeding and motionless. You sent these photos to associates boasting about what you had done. You then sent Mr Buschmann a written message threatening to kill him while he was in hospital recovering.
22Your offending occurred one day after you were released from custody. You were denied parole and were released after serving a straight 15-month sentence. You received this sentence on 28 June 2019 for a number of matters including a charge of intentionally cause injury. On your release despite good intentions you had no stable accommodation or support. The original plan was that you would live with Ms Cavanagh and her mother, but this did not eventuate. You very quickly fell back in with your old peer group and you relapsed into drug and alcohol abuse.
Victim Impact
23I have not received a victim impact statement from Mr Buschmann. In his statement to the police of 1 September 2021, Mr Buschmann describes the ongoing physical consequences of the assault on him and the anxiety he experiences. I take this into account in sentencing you.
Plea of guilty and remorse
24Your case initially resolved at committal mention on 30 October 2020. Your position changed and the matter was later case conferenced and ultimately resolved as a plea to the charges on the indictment in September 2021. Throughout this process no witnesses have been cross examined. Witnesses have also been spared the distress and further delays of the matter progressing to trial. This is significant and it counts in your favour.
25I also accept that your plea as was put on your behalf is particularly valuable in circumstances where there is a large backlog of cases in the court. I recognise the utilitarian benefit of the plea. I accept your counsel’s submission that a significant discount is warranted for the utility in facilitating the course of justice during the COVID-19 pandemic.[1]
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
26In terms of your personal circumstances, Mr Fiske, they were outlined in detail in a Forensicare report of Dr Kiara Bird of 27 October 2021 (Exhibit 1). This report was originally requested by Judge Hogan who sentenced you for a subsequent matter on 5 November 2021, which I will come to shortly.
27You are currently 29 years of age, born in July 1992. You were born and raised in the Geelong area. You have two older sisters and a younger brother. Your parents separated when you were only a baby. Your mother re-partnered with a woman and the relationship lasted approximately 11 years.
28You witnessed frequent and extreme violence perpetrated upon your mother by her partner. As a child you would often be the one stepping in to break up the conflict.
29Throughout your childhood your mother was addicted to drugs, mainly amphetamine. This impacted her ability to provide adequate care or nurturing to you and your siblings. While social services had some involvement with you as a child you were never removed from your mother’s care.
30As a child you spent every second weekend with your father, with whom you enjoyed a good relationship. You lived with him from the ages of 15 to 19 and you describe these years as representing a stable period in your life.
31You struggled at school. You struggled to ‘sit down and do stuff’ and you would get into frequent fights. You left school in Year 7. After leaving you engaged in some short-term employment. As a teen you worked for a time in plastering and carpentry labouring. More recently, you worked in roofing and concreting for several months.
32While you have no formal training in any trade, you are experienced in roofing, enabling you to set up as a sole trader in that area prior to your last prison sentence. You have had significant periods of unemployment, during which you have used substances heavily.
33You have a significant drug and alcohol history. You started using alcohol at around 12 or 13 years of age, as ‘mum didn’t really care if I drank.’ You used cannabis from around 14 years and thereafter regularly from 16-19 years. You also used ecstasy recreationally. At the age of 19 you began using methylamphetamine, initially smoking and then injecting it.
34At times, you would supplement your use with heroin. You felt that you were ‘probably a bit more angry and less likely to think about things’ when you were affected by methamphetamine. You have been a heavy drinker, frequently drinking between six to ten cans of mixed spirits. You report at times binging on drugs and alcohol for long periods.
35During the interview with the psychologist you demonstrated an awareness of the negative impact your substance misuse has taken on your life and expressed a desire and motivation to change. You have been clean from drugs in custody.
36You are currently single and you have had one significant intimate relationship with Ms Cavanagh, who is referred to in the prosecution opening. You were together for some eight years and you have one child, Michael, who is now approximately, five years of age. You describe the relationship as okay but it appeared to be a tumultuous one, as you were both using substances and living a generally chaotic lifestyle.
37
Your son was removed from Ms Cavanagh’s care due to her ongoing substance misuse and Michael now lives with your sister. Your sister also has the care of
Ms Cavanagh’s other two children.
38In terms of your family relationships, you no longer speak to your mother, after disputes over the custody of your child. You see your father intermittently and you have a good relationship with your sister and your younger brother.
39As for your mental health, you do not present with a history of serious mental health problems. You were diagnosed some four years ago by your GP with anxiety in relation to panic attacks that you were experiencing. You feel that your symptoms have entirely resolved by taking mirtazapine, which is prescribed to you.
Prior criminal history
40Mr Fiske, you have a criminal history dating back to 2011. You have appeared in court on many occasions for driving offences, drug offences and possessing a controlled weapon or prohibited weapon. On two occasions, you have breached community corrections orders and also a suspended sentence in imprisonment.
41In terms of prior violence you were convicted in 2011 of a recklessly cause injury and attempted armed robbery and you were sentenced to a youth justice centre for 16 months. In 2019, you were sentenced for charges including intentionally cause injury and received a total effective sentence of 15 months' imprisonment. The 2011 matter occurred when you were 18 years of age. You were driving your car and threatened some men who were walking along the street and who were unknown to you. They tried to flee and you and your co-accused got out of the car and you assaulted one of the men. Your co-accused produced a hammer and struck one of the other men with it. The 2019 conviction related to your attendance at a friend’s house and encountering an acquaintance whom you did not like. You were drug affected and you attacked him with a knife. You ended up stabbing him to the right side of the upper chest. He was treated for the stab wound but did not require surgery or any ongoing medical treatment. That is a brief summary in relation to those previous matters.
Current sentence
42As I have already noted, on 5 November 2021 you were sentenced for one charge of recklessly cause serious injury by Judge Hogan. You received a total effective sentence of five years and four months' imprisonment with a non-parole period of four years. On that date, 492 days was reckoned as pre-sentence detention which is calculated from the date of your remand on 1 July 2020.
43
This is not a prior conviction for the purposes of sentencing you today but it is clearly an important and relevant matter. In particular, it calls for consideration and application of the principles of totality and proportionality. On your behalf,
Mr Backwell submitted that while some cumulation is warranted for the current offences, the sentence imposed must be tempered by a consideration of these important principles and the need to avoid an overall crushing sentence.
44In brief, this matter involved offending on 25 June 2020, approximately two weeks after the offences on the current indictment. You and Ms Cavanagh had attempted to check into a motel but you were told by the receptionist, who was also the victim’s wife, that you could not without identification. You left and started unloading your luggage. Upon seeing this the owner of the hotel, the victim, came out to speak to you and asked you to leave. You grabbed the victim by the waistband of his jeans and flung him off balance. You returned to the area and you pushed and shoved him again. You punched him to the head and shoved him again. You delivered two punches to the right side of his face in his cheek and temple area.
45The victim asked his wife to call the police and asked you to leave which you did soon thereafter. Some hours after the assault the victim started to feel extremely unwell. He was then taken by ambulance to Geelong Emergency Department where it was determined that he was suffering a bleed on the brain and he was then air lifted to the Royal Melbourne Hospital. He required a number of medical procedures and suffered complications.
46He was placed in an induced coma for five days. He then underwent a significant period of hospitalisation, followed by some weeks of rehabilitation at the Royal Talbot Rehabilitation Hospital. Your victim suffered a range of ongoing physical consequences from his brain injury and a number of serious psychological conditions which are detailed further in the reasons for sentence of Judge Hogan. He also required further medical treatment in August and September of this year.
Factors in mitigation
47I take into account the additional factors in mitigation that were advanced on your behalf by Mr Backwell, as follows.
Bugmy principles
48As I have already noted, your upbringing was characterised by severe neglect and physical abuse. Mr Backwell relied on the principles in Bugmy’s case[2] and the prosecution accepted they did have application and that, to this extent, your moral culpability is reduced. These principles also have relevance to your prior and subsequent convictions and provide context.
[2] Bugmy v The Queen [2013] HCA 37.
49Further insight into your background is provided by the evidence given by your sister, Cherie Melissa Fiske, before Judge Hogan on 9 March 2021 (Exhibit 2). She currently works, or at least at that time, for a pathology centre and was in her mid-30's. She described first leaving home when she was 14 and pregnant. She had to find her own accommodation to support herself and her unborn child. At that time she was looking after four children, your son Michael and Ms Cavanagh’s other children.
50In April 2019 she and her family relocated from Queensland to Victoria in order to be able to undertake the care of your son. Your sister stated that after your parents separated your mother became extremely drug dependent. She was very neglectful and both mentally and physically abusive. She ended up in a relationship where domestic violence was the norm. She described violence in the home as a daily occurrence.
51She also described the difficulty you children experienced with schooling as there was never any food, you did not have school books, bus money, all the things that other children take for granted. She described the family moving regularly, depending on when the sheriff knocked at the door. You would sleep on nature strips, in front of service stations and in squats. She also described your mother taking drugs in front of the children, mostly intravenously. When she used drugs or drank excessively she also became violent and turned on the children.
52In her report, Dr Bird opines that your early and ongoing exposure to substance misuse and severe and chronic violence is likely to have served to normalise this behaviour. Your childhood lack of care and appropriate role modelling -
'Would have influenced [your] ability to develop healthy attachments to others and appropriately self-soothe from a young age, leading to emotional and behavioural dysregulation and difficulties in relationships with others as he got older.’
53In short, Mr Fiske your early experiences and corresponding lack of opportunity to develop healthier emotion regulation and conflict resolution skills may have predisposed you to respond violently in certain situations.
54I accept that your personal history of neglect and trauma mitigate the sentence to be imposed in your case and that your moral culpability is reduced. Your background of profound childhood deprivation has left its mark on you throughout your life. While general deterrence remains a relevant consideration in your case, I consider that it requires moderation. Your exposure to substance abuse and chronic violence during your childhood and formative years goes a long way in explain your recourse to violent behaviours. However, this increases the importance of specific deterrence and as the prosecutor, Ms Webster, also submitted, the importance of protecting the community from you.
55In her report, Dr Bird deemed you currently to be a moderate risk of violent reoffending but that the risk of serious harm you could cause was assessed as high. She considered that your risks were likely to be reduced if you were able to access appropriate supports, interventions and treatment, as she outlines in her report at paragraph 56.
Time in custody
56You have been in custody now since 1 July 2020, which is over 17 months. You have done your time in custody during the currency of the pandemic. You have had no visitors and have been subjected to numerous lockdowns and restrictions. You have kept in touch with your father, sister and son via Zoom once a week. You are currently working as the COVID-19 billet in your unit.
57I accept, as was put on your behalf that conditions have been and continue to be more onerous for prisoners. You have been subjected to greater restrictions and deprivations than in normal times because of the impact of the COVID-19 pandemic and this has made custody more onerous. I take this into account in sentencing you.
Prospects of rehabilitation
58I regard your prospects of rehabilitation to be guarded. You have an extensive prior criminal history and you reoffended only a day after release from your last sentence. However, during your assessment with Dr Bird you presented with insight into the negative impact of your substance misuse and a desire to change. You do have a work history and skills that you can apply, and you hope to gain employment either in concreting or roofing. In custody you have been working and also keeping yourself fit.
59Also, importantly you continue to have the support and connections with your father, sister and your son, Michael. You are also still relatively young at the age of 29. You have also assumed responsibility for your offending by entering a plea of guilty. I consider that your rehabilitation is largely dependent on you remaining drug free and obtaining the necessary support to help you maintain lasting and meaningful changes in your life. The recommendations of Dr Bird would best facilitate your rehabilitation and reintegration back into the community.
Sentencing principles
60The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. As I have already noted, I regard the Bugmy principles to operate to reduce your moral culpability and moderate the weight to be given to general deterrence. Specific deterrence, denunciation and community protection are important considerations in your case and must be given weight.
61I note that you have been in custody now, as I have already stated, well over a year and a half years and you are serving a lengthy period of imprisonment. In your case, I consider your rehabilitation and community protection are best achieved and facilitated by ensuring that your eventual reintegration and return to the community is supported with targeted and structured interventions, as outlined in the report of Dr Bird. On your last release from custody you were without any supports or structure and returned almost immediately to drug use and offending.
62I take into account the sentencing guidelines referred to in s5 of the Sentencing Act1991 (Vic), where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty to and in particular for intentionally cause injury.
63There was no dispute between the parties that a term of imprisonment is warranted in your case. Given the seriousness of the offending and also your prior criminal history a term of imprisonment is the only appropriate sentence.
64In sentencing you I must have regard to the totality principle. I intend to impose individually appropriate sentences, but I will reduce the orders for cumulation to ensure the total effective new sentences gives effect to the totality principle, taking into account the overall criminality of your offending and your circumstances and also the relevant sentencing principles I have referred to. I will then set a new single non-parole period as I am required to do pursuant to s14 of the Sentencing Act1991 (Vic).
65On Charge 1, intentionally cause injury, you are convicted and sentenced to a term of 15 months' imprisonment.
66On Charge 2, threat to kill you are sentenced to six months' imprisonment.
67Charge 1 is the base sentence and I order that one month on Charge 2 is to be served cumulatively. This is a total effective sentence of 16 months' imprisonment and I order that seven months of that sentence be served cumulatively upon the sentence you are currently serving. In other words, it is my intention that Judge Hogan’s sentence of five years and four months imprisonment be increased to five years and 11 months.
68I must set a new single non-parole period under s14 of the Sentencing Act, fixed by reference to the total sentence to be served by you, considering the global period constituted by the original sentence and the new sentence I have imposed.
69Your new overall non-parole period is four years and four months, with the commencement date being the date of commencement of Her Honour’s sentence, namely 5 November 2021.
70On my understanding, s14 can either be achieved by backdating the new single non-parole period I declare to the date of the original sentence, which is what I have done, or I can direct that it commences from today.[3] I am cognizant of the views expressed by Brooking JA in R v Rich[4] that ‘there should be uniformity of practice’ and that all new non-parole periods should be made to commence on the date on which they are fixed. I note however that this approach seems to have caused significant problems in the manner in which the sentence calculation authorities in Corrections interpret the order.
[3] R v Bortoli [2006] VSCA 62; Spiteri v The Queen [2018] VSCA 254.
[4] R v Rich (No 2) [2002] VSCA 17.
71My intention is to add a period of four months imprisonment to your current earliest parole eligibility date. If my orders do not have this effect, then the matter should return to me for any necessary corrections or clarifications.
72There is no pre-sentence detention to declare in this case. Judge Hogan’s previous declaration of 492 days remains unaffected by my orders. In other words. Mr Fiske that pre-sentence detention is still applied to your sentence and you remain entitled to it.[5]
[5] R v Stares [2002] VSCA 70.
73Pursuant to s6AAA I state that the sentence I would have imposed on you but for your plea would have been a sentence of two years and six months' imprisonment.
74HER HONOUR: Were there any ancillary orders?
75MS WEBSTER: No, there's not, Your Honour.
76
HER HONOUR: All right. I've tried to be as clear as I can in terms of the new
non-parole period and the order of cumulation because I do understand and I've had a look at the number of the cases, I understand that some difficulties can arise when it's being calculated by the authorities. I've made my intention plain and clear. If there is an issue then the court should be alerted and it should come back before me.
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