Director of Public Prosecutions v Fiske
[2021] VCC 1743
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01431
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SCOTT FISKE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong sitting at Melbourne | |
DATE OF HEARING: | 9 March, 14 September and 3 November 2021 | |
DATE OF SENTENCE: | 5 November 2021 | |
CASE MAY BE CITED AS: | DPP v Fiske | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1743 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty to one charge of recklessly causing serious injury – two punches to head of 62 year old victim by 27 year old offender – victim suffered bleeding to the brain and required emergency surgery removing part of skull to accommodate swelling, together with induced coma for five days with significant ongoing physical, psychological and financial consequences for himself and his wife – offence committed on 25 June 2020 only two weeks after offender had been released from serving a 15 month sentence of imprisonment – prior conviction for intentionally cause injury, attempted armed robbery and recklessly causing injury – initial early plea of guilty but, following plea hearing, offender made unsuccessful application for change of plea – nevertheless acknowledgment ultimately of increased utility of plea of guilty during COVID-19 pandemic, as well as more onerous burden of imprisonment – seriously disadvantaged background meriting application of principles of Bugmy v R but mitigated by risk to community of violent reoffending.
Cases Cited:DPP v Fiske [2011] VCC 709; Bugmy v The Queen (2013) 249 CLR 571; Winch v The Queen (2010) 27 VR 658
Sentence: 5 years and 4 months’ imprisonment with a non-parole period of 4 years. s.6AAA: 6 years and 4 months’ imprisonment, with a non-parole period of 4 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Tueno Ms R Hamnett | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr T Sullivan (9 March 2021) Mr R Backwell | Geelong Lawyers Greg Thomas Barrister & Solicitor |
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HER HONOUR:
1James Scott Fiske, you have pleaded guilty to one charge of recklessly causing serious injury which carries a maximum penalty of 15 years’ imprisonment.
2The circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”).
3On 25 June 2020, you and your partner, Hayley Cavanagh, caught a taxi to the Parkside Motel in Belmont where you arrived at approximately 12:34pm. The victim and his wife, Mr and Mrs Chalmers,[1] were the managers of the motel. You approached the reception desk where Mrs Chalmers was on duty and requested a room, but your request was declined as you were unable to produce identification. You then returned to the taxi which was waiting in the motel driveway. CCTV footage[2] showed you, Ms Cavanagh and the taxi driver unloading a significant number of items of luggage which you then lined up on the side of the motel’s driveway. The footage shows you to be in a heightened and somewhat agitated state strutting around in an unusual fashion randomly gesticulating and putting your hands up to your head. Mr Chalmers approached you and indicated that you could not leave your luggage there and requested that you leave. He then turned and walked away. You and Ms Cavanagh commenced picking up various of your bags and placing them somewhere that cannot be seen in the footage. Mr Chalmers returned to the driveway area. You then grabbed Mr Chalmers by the waistband of his jeans and flung him somewhat off balance in a twisting-type motion. Mr Chalmers returned to the area and you pushed and shoved him again. Ms Cavanagh appeared to be trying to get you to keep your distance from Mr Chalmers but seemed to be having trouble getting you to control yourself. Mr Chalmers appeared to then say something to Ms Cavanagh and, in a sudden movement towards him, you punched Mr Chalmers to the head and shoved him again. The prosecution summary states that you delivered two punches to the right side of his face in his cheek and temple area.[3] Mr Chalmers asked his wife to call police and again asked you to leave, which you did soon thereafter.
[1] Pseudonyms have been used in place of the names of the victim and his wife throughout these remarks, as they have expressed a desire to remain anonymous in reporting of this case.
[2] Exhibit “D”
[3] Ms Chalmers’ statement to police made on 26 June 2020 stated that “The male punched [victim] with a clenched fist to the right side of his head twice. I can’t be sure of the exact location but believe it was to [victim]’s right cheek and temple” (paragraph 21, Depositions pp. 41-42.)
4Slightly in excess of three hours after the assault, at about 4:00pm that afternoon, Mr Chalmers began to feel extremely unwell. He went to lie down, complaining that his head felt like it was exploding. Mrs Chalmers noticed that her husband looked very pale and was clammy to touch and, then, his speech became incoherent and he vomited several times. Mr Chalmers was 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 was found to have an acute right subdural haematoma and was admitted straight to theatre. He required an urgent craniotomy, which involved removing part of his skull in order to accommodate swelling of his brain and evacuate the haematoma. However, following the initial surgery, he developed an extradural haematoma which required him to be returned to theatre for a second evacuation on the same day. He was placed in an induced coma for five days, but suffered further complications with atrial fibrillation (which he had suffered previously) and, also, pneumonia.[4] Mr Chalmers then underwent a significant period of hospitalisation, followed by some weeks of rehabilitation at Royal Talbot Rehabilitation Hospital.
[4] Exhibit “G”, report from Austin Health dated 7 October 2020.
5Mr Chalmers has ongoing consequences from his brain injury including an inability to concentrate on tasks for greater than approximately 1 hour, ongoing mild altered sense of taste and smell and headaches, although the frequency and intensity of those is improving. Some double vision, which endured for some months, made it impossible for Mr Chalmers to return to driving a motor vehicle during that period. In addition, he suffers Post-traumatic Stress Disorder and Major Depression and difficulty engaging socially and needs ongoing psychological treatment.
6It was necessary for Mr Chalmers to continue to wear a brain helmet until such time as he was able to undergo further surgery, cranioplasty, to replace the portion of his skull which was earlier removed. Due to the COVID pandemic restrictions, this was not able to be carried out until August 2021. At that surgery, a sunken craniectomy defect was noted which required an acrylic cranioplasty plate to be fitted in the defect, secured with plates and screws, and the temporalis reapproximated over it, with a drain placed and tunnelled to the skin. Mr Chalmers had to be nursed post-operatively with his head up at a 30 degree angle with mechanical prophylaxis and close, regular neurological observation. He was an inpatient for 4 days with post-operative medication on discharge. Subsequently, he required treatment to remove a single head suture at the drain site on 27 August 2021, as well as to remove staples on 3 September 2021.[5]
[5] Exhibit “J”, Mr Chalmers’ records from Royal Melbourne Hospital
7Mr Chalmers continues to have good and bad days. On some days he feels drowsy and “fuzzy” and on most days is aware of cognitive fatigue. His pre-existing cardiac issue has become complicated by needing to take medication to guard against the risk of a stroke following the traumatic injury to his brain and his previous cardiologist is no longer comfortable managing his medication following the brain injury.[6] At the time of his cranioplasty, it was noted that he had ongoing deficits and easy mental fatigue, but was slowly improving and was walking around and driving normally.[7]
[6] Exhibit “H”, report from Austin Health dated 29 March 2021.
[7] Exhibit “J”
8You are presently aged 29 years, having been born in July 1992. You come before the Court with a criminal history dating back to early 2011.
9On 24 February 2011, in the County Court at Geelong, you were convicted of attempting to commit an armed robbery and, also, recklessly causing injury and theft, for which you were sentenced to a total effective sentence of 20 months’ detention in a Youth Justice Centre. The circumstances of that offending, which was committed on 9 October 2010, are contained in the sentencing remarks of his Honour Judge Mullaly made on 24 February 2011.[8] Two young men were walking home after a night out when you and a co‑accused yelled from a car that you wanted their wallets. The car did a U-turn and blocked the path of one of the young men who tripped as he ran. While he was down you kneed him in the back and he fell on his back onto the road and you began to punch him in the face. You were unaware that your co‑accused had equipped himself with a hammer, however, when he produced it and began attacking the immobilised victim, you took the opportunity to try and see if you could steal his wallet, but were unable to find it. You and your co‑accused then drove away leaving your victim on the side of the road with injuries to his face, hip and back. He was taken to hospital by ambulance. His physical injuries resolved but he had ongoing psychological injuries including disturbed sleep and social anxiety.
[8][2011] VCC 709 (Exhibit “F”)
10Subsequently, you have appeared in court on many occasions for driving and dishonesty offences, drug offences and possessing a controlled weapon or prohibited weapon. On two occasions, you have contravened Community Correction Orders, as well as contravening a suspended sentence of imprisonment.
11On 28 June 2019, you were convicted in the Geelong Magistrates’ Court of intentionally causing injury and a number of dishonesty and drug offences, as well as the contravention of a Community Correction Order. You were given a total effective sentence of 15 months’ imprisonment, which you served in its entirety and were released only two weeks prior to the offending for which I must sentence you. The charge of intentionally causing injury involved you apparently stabbing your victim without provocation. A stab wound went through your victim’s diaphragm into his liver and he collapsed to the ground while you kicked and punched him several times to the head and upper chest. He also suffered an acute fracture to the sixth rib and a 2 centimetre laceration to the lung.
12In a plea on your behalf by Mr Sullivan, who appeared at the initial plea hearing on 9 March 2021, the Court was told that you had a deprived upbringing. You are the second youngest of four children. Your parents separated when you were about four years of age and you remained with your mother. She began a dysfunctional intimate relationship with a young woman and both of them lived a life of chaos and drug addiction.
13At that plea hearing, evidence was called from your oldest sibling, Sheree Melissa Fiske, aged 34 years. She stated that your parents split up when she was about 12 years of age. She described your parents as having fought regularly. After your father left the family home, your mother did not work or cook or clean or get any of the children ready for school and would use what money there was for her own purposes such that the electricity would be cut off and there would be no food available. She described your mother as being a drug addict who formed an abusive relationship with a younger female partner who was also a drug addict. The two of them would not generally get out of bed until the afternoon and they would devote their time to getting money from whatever scams they could dream up in order to buy drugs. She stated that there would be verbal and physical abuse meted out every day and that she was the only one of the four children who attended school regularly. She had friends who would help her out with obtaining a school uniform and would bring an extra sandwich for her to eat for lunch.
14Your sister stated that, when your father left the marriage, you and your younger brother, Brandon, were very young children without any support. You were left to find your own food and fend for yourselves. She described a great insecurity of accommodation, which might be for one month or three months before you all would be required do a “moonlight flit” before the sheriff knocked on the door. At times, you and the other children slept on nature strips or in a car or, periodically, at an auntie’s house. To help feed the family, she would fill up her school bag with bakery items from a rack outside a local bakery and your father would drop off milk and bread. She kept in touch with your father and, if things were bad, would go to the local phone box where she learned to make free calls by using a straw because she did not have coins. When things were very bad she would pack up her three younger siblings and run to your father’s house. She stated that the Department of Human Services were involved, but your mother refused to let her go to any meetings with them because your mother knew that she would speak up about the neglect which the children suffered. She stated that she could never understand why the Department of Human Services permitted any of the children to return to live with your mother because the house was not fit for a dog to live in. She described a house with mounds of washing, several dogs, animal faeces and, generally, in a horrible state. She stated that your mother would smoke cannabis and use intravenous drugs in the house in front of the children and would become extremely violent and turn on the children. She described being struck in the face with a glass and having seen your mother strike you. She stated that it was common for your mother to be physically abusive and throw objects at the children.
15Your sister stated that, when she was aged 14 years, she could not stand being at home any longer. She had become pregnant and left in order to secure the health of herself and her unborn child, but would try to keep an eye on how her younger siblings were faring. She described that, from about age 14, you would not be at home very much and would spend a great deal of time at a friend’s house. Shortly thereafter, at about age 15, you moved in with your father but, by this stage, you had given up school. She stated that you had commenced smoking cannabis under the influence of your mother, and drug abuse had become a significant issue for you. She stated that, when you were not under the influence of drugs, your father and you got on well and, generally, the children have a positive relationship with him.
16I must say that your sister is an impressive person. Despite a disruptive and unsupportive home life, she has qualified as a phlebotomist and works for a forensic pathologist. She is married and has the care of three teenage children from a former relationship as well as a six year old child to her current husband. In April of 2019 she and her family relocated from Queensland to Victoria in order to be able to undertake the care of your son, Michael, who was then aged two years. Hayley Cavanagh had given birth to Michael whilst you were in prison. When he was a few days old, the Department of Human Services apparently removed him from her and took him to live with your own dysfunctional mother, which horrified your sister. Since Christmas Eve of 2019, your sister has been caring for, not only Michael, but also Hayley Cavanagh’s eleven year old daughter, who is not your child. She had been in foster care for the previous six or seven years after being removed from Hayley Cavanagh’s care.
17At the initial plea hearing on 9 March 2021, Mr Sullivan noted that the offending for which I must sentence you was committed only 2 weeks after you were released from serving a 15 month term of imprisonment in the context of you and Ms Cavanagh having been told to leave your accommodation on the day of the offence. He argued that your disadvantaged upbringing warranted application of the principles in Bugmy v The Queen,[9] albeit that you had lapsed into methylamphetamine use as soon as you were released from custody and resumed your relationship with Ms Cavanagh who, like yourself, has a long-term drug abuse problem.
[9] (2013) 249 CLR 571
18In the light of the fact that no psychological report was tendered on your behalf, I ultimately determined that the matter should be adjourned for further plea hearing so that a psychological assessment by Forensicare could be undertaken. However, in the interim, you made an unsuccessful application to change your plea to one of “not guilty.” The matter came before me again on 14 September 2021 and was then adjourned so that a Forensicare report could be obtained.
19When the matter came before me for a further plea hearing on 3 November 2021, a report containing an assessment of you by Dr Kiara Bird, forensic psychologist, dated 27 October 2021 was marked as Exhibit “K”.
20I note that Dr Bird had the benefit of obtaining a family history from yourself as well as from your sister, Sheree. Many of the details of your disadvantaged, dysfunctional upbringing by your mother, which had been detailed in evidence from your sister, were repeated in Dr Bird’s report.
21Dr Bird considered that your childhood lack of care, nurturing, appropriate role modelling and exposure to violence and substance abuse represented a chaotic lifestyle. She opined that:
“this would have influenced Mr Fiske’s 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.”
22She considered that your early and ongoing exposure to both substance abuse and severe and chronic violence from a young age is likely to have normalised such aberrant behaviour:
“Such violent and unpredictable circumstances likely resulted in high levels of fear for Mr Fiske, which in turn, amongst other areas of development, will have impacted on the healthy development of his threat system (ie. the fight or flight response), resulting in an impaired ability to correctly assess levels of threat in a given situation and a heightened response to these perceived situations when they occurred. In short, Mr Fiske’s early experiences and corresponding lack of opportunity to develop healthier emotion regulation and conflict resolution skills which may have predisposed him to respond more violently, more readily than others in situations where he feels threatened.”[10]
[10]Exhibit “K”, pages 8-9, [53]
23I take into account your childhood of trauma and disadvantage in accordance with the principles of Bugmy v The Queen. The majority of the High Court held that a background of social deprivation, where an offender has grown up in a violent environment which explains their recourse to violence when frustrated, is a relevant sentencing consideration, the effects of which do not diminish over time or with the commission of other offences. The Court held that giving “full weight” to the effects of that upbringing may reduce that offender’s moral culpability, but may also increase the need to protect the community from that offender.[11]
[11]Bugmy per French CJ, Hayne, Crennan, Kiefel and Bell and Keane JJ at [44]
24I find that your childhood background of deprivation does reduce your moral culpability and moderates the emphasis that might otherwise be placed on general deterrence. However, in a complex way, it also increases the importance of specific deterrence, that is, deterrence of you personally, because it increases the need to protect the community from you.[12]
[12]Ibid, and at [45] citing Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68
25In this regard, your sister, in the history given to Dr Bird, “noted that (you were) ‘a different person when (your) adrenaline kicks in’ and that, during these times, (you) could experience explosive anger which (you) struggled to control”.[13]
[13]Exhibit “K”, page 7, [45]
26Dr Bird noted as a complicating factor that, at the time of this offending, you were in a highly intoxicated state, being affected by methylamphetamine. She described the serious assault perpetrated upon Mr Chalmers as:
“characterised by impulsive, aversive violence, i.e. marked by reactive anger and enacted without prior planning for the purpose of eradicating a perceived threat. Though in reality the victim was not a threat to Mr Fiske, his impaired ability to adequately process information in the moment, appraise interpersonal situations effectively, regulate his emotional arousal and resolve conflict, coupled with reduced inhibition caused by acute substance intoxication, caused Mr Fiske to respond in an excessively violent manner in order to neutralise the perceived threat and end the situation.”[14]
[14]Exhibit “K”, page 9, [54]
27Dr Bird went on to state that she assessed you at the present time as being at moderate risk of violent reoffending, but the risk of serious harm you could cause was assessed as high. She stated that the moderate risk of violent reoffending was assessed in the context of you having been in custody over the last six months, but your risk in the community, when more readily exposed to stresses, may be higher. She noted that, based upon your offending to date, you were likely to use violence to remove a perceived threat, either in an impulsive or more controlled manner, and that your intoxication should be considered a key risk factor for violence with the potential for both psychological and physical damage to a victim.[15]
[15]Exhibit “K”, page 9, [55]
28In sentencing you, the Court must denounce your conduct and place some albeit moderated emphasis upon general deterrence but also emphasis upon specific deterrence, community protection and just punishment. Unfortunately, your history of violent offending, and the fact that this offending occurred only two weeks after you had been released on 10 June 2020 after serving 15 months in prison, is deeply concerning. Your counsel at the adjourned plea hearing, Mr Backwell, stated that, in addition to this offending, you had committed other offences on the day after you had been released from custody, namely, on 11 June 2020, albeit that you were not charged for those offences until after you had committed the offence for which I must sentence you. The other offences were intentionally causing injury and threatening to kill, which are to be the subject of a plea hearing on 1 December 2021. Obviously, that offending forms no part of my sentence today, however, the fact that it occurred adds to the considerable reservations I have as to your prospects of rehabilitation.
29When sentencing you for attempted armed robbery, recklessly causing injury and theft, over 10 years ago on 24 February 2011, His Honour Judge Mullaly stated, when referring to a psychological report tendered on your behalf, that you had told its author, Ms Lechner, that:
“You spent your spare time ‘hanging around with friends and drinking’. It hardly seems surprising that Ms Lechner concluded that you were immature emotionally and in your capacity to think things through.”
His Honour went on to state as follows:
“You are easily angered and quick to express frustration. From an early age you used drugs, in particular amphetamines. Likewise, you have drunk alcohol to excess since your early teens. You have a serious alcohol problem. It will ruin your life and see you wasting your life in prison if you do not accept that it is a problem and that you need to get help to deal with it.
You told Ms Lechner that being in adult gaol has been an eye-opener. You probably have come to realise, and if you haven’t you should have, that many of those that you saw in gaol are there because they succumbed to alcohol and amphetamines and have done stint after stint of gaol because, once out, they resort again to alcohol and drugs and succumb to anger.
The choice is yours, Mr Fiske, but it is plain, if you do not get help upon your release or even while you are in custody, your prospects are grim.”[16]
[16]DPP v Fiske [2011] VCC 709 (24 February 2011) at page 5, paragraphs [23] to [26]
30I note that subsequent to His Honour’s sentence, on 30 July 2013 you were given a Community Correction Order with rehabilitative conditions relating to drug and alcohol abuse, but you breached this and, in 2014, you were then given a totally suspended sentence of 6 months’ imprisonment, which you also contravened. After having served some relatively short sentences of imprisonment, you were again given an opportunity to undertake a Community Correction Order on 19 April 2018 with rehabilitative conditions, but yet again contravened such order.
31You are only 29 years old and, whilst acknowledging that you had a sad, neglected and generally dreadful upbringing, you seem to have lacked the ability to do other than waste your life. It is tragic that you were using alcohol and drugs at a relatively young age when your brain was still developing and, not surprisingly, given your relative lack of education and persistent abuse of alcohol and illicit drugs, you have only a very sporadic work history. This offending, like the descriptions of your offending in the past, is of wanton violence. It is also of a cowardly nature, given that at the time of offending you were a solidly built 27 year old who attacked your victim, who was aged 62 years, when all he was doing was trying to maintain the order of the motel of which he was the caretaker.
32As is apparent from the description which I have given of his injuries, surgical treatment and rehabilitation, the impact of your offending upon Mr Chalmers was life-threatening and has resulted in significant and invasive surgical procedures which greatly affected his wellbeing for well over a year after your attack upon him. In addition, Mr Chalmers’ victim impact statement speaks not only of the fatigue and cognitive difficulties which he has suffered but his feeling of anxiety, depression and Post-traumatic Stress Disorder, as he does not feel safe without his wife near him. He also describes the very significant financial impact upon he and his wife by reason of him not only being unable to earn $1,500 a week as the manager of the motel, but also losing the benefit, as the manager, of the use of a two bedroom unit with free electricity, gas, internet and other facilities.[17]
[17]Victim impact statement of Mr Chalmers made on 11 February 2021, Exhibit “B”
33Mrs Chalmers, also, has been unable to work due to Post-traumatic Stress Disorder and anxiety, not only due to watching her husband being assaulted, but also her grave worry whilst awaiting the outcome of surgery on her husband’s brain twice within a short period time and his need then to be placed in an induced coma for some days. Apart from the loss of their livelihood and associated benefits of the unit, she mentions in her victim impact statement that she had to arrange emergency flights and accommodation for herself, as well as her son who had to travel from Queensland, in order that they could be close by the hospital in Melbourne, where Mr Chalmers was an inpatient. She describes the terrible disruption to the lives of the family and the financial and psychological stress which ensued and the magnitude of the rehabilitative tasks faced by her husband which eroded his independence and placed extra stress upon herself.[18]
[18]Victim impact statement of Mrs Chalmers made on 11 February 2021, Exhibit “C”
34At the plea hearing on 9 March 2021, Mr Sullivan stated that you had a long history of substance abuse. He told the Court that you admitted that you were under the influence of methamphetamine at the time of committing this offence, but had instructed him that you had commenced going “clean” after you were remanded in custody, although you admitted that you had had a couple of “dirty” urine screens. Notwithstanding that Mr Sullivan indicated that he would be obtaining reports of urinalysis during the time that you have been on remand, no such reports were made available by the time of the adjourned hearing on 3 November 2021. However, you have apparently stayed out of trouble and been working as a billet in the kitchen from 9:00am to 3:00pm on six days per week, which is what you told the Court on 9 March 2021. Currently you are employed as a Covid billet in the kitchen, cleaning all touch points.
35Mr Backwell, at the hearing on 3 November 2021, stated that, as mentioned in Dr Bird’s report, you had been diagnosed with anxiety and low mood by your general practitioner some four years ago and, since that time, had continued to be prescribed 30 milligrams of that medication each evening which you felt was effective. It is to your credit that you have been gainfully employed whilst on remand.
36You told the Court that, after ceasing work in custody each day at 3 o’clock, you would go to the gym, where you had been keeping yourself fit, and would then be locked in your cell at 4:00pm. Although your work in the kitchen has apparently meant that you were not subject to as much reduced out of cell time as other prisoners during the restrictions occasioned by the COVID‑19 pandemic, I do take into account that, generally speaking, during the period of the pandemic restrictions imprisonment has been more onerous, not only due to greater time spent by prisoners in their cells but, also, due to a lack of availability of programs and an absence of contact visits. Mr Backwell said that you have been confined to one Zoom session per week with your father, sister and your young son for the 490 days that you had spent on remand up until the day prior to the plea hearing on 3 November 2021. I acknowledge that the lack of contact visits is a significant deprivation to prisoners.
37Mr Backwell also submitted that the utility of your plea of guilty was greater during the Covid pandemic restrictions given that the capacity of the County Court to hear criminal trials has been very significantly hampered. Whilst I am conscious that this is so, your situation is somewhat complicated by the fact that, after having pleaded guilty and conducted a plea in mitigation in March, you then sought to change your plea. This was apparently on the basis that, after viewing the CCTV footage of your assault upon Mr Chalmers, it was submitted that the only inference that could be drawn as to your state of mind was that you could not have foreseen the probability that your punches to the head of Mr Chalmers would have caused serious injury. This argument was rejected by Her Honour Judge Gaynor when the application was made on 3 September 2021 and your application for change of plea was unsuccessful. Mrs Chalmers, who witnessed the assault, described you delivering two punches to her husband’s head with a closed fist. This was after you had already grabbed and shoved Mr Chalmers and your partner had tried to keep you away from him. It is apparent from the footage that you were in an agitated state and seemed to be incapable of controlling your anger, even though Mr Chalmers’s behaviour was entirely reasonable in endeavouring to have you move a significant line of various items of luggage from the driveway after it had been made clear that you could not stay at the motel. Nevertheless, although the plea process has been a convoluted one in the light of your application, I consider that you should still be afforded the benefit of the added utilitarian value of your plea of guilty during the pandemic restrictions.
38Mr Backwell submitted that your plea of guilty, coupled with statements which you made to Dr Bird that you felt “bad” that you had “hit someone so old” should be regarded by the Court as evidence of remorse. There may be some remorse on your part, but I find it difficult to accept that there has been true remorse in the sense of a total and unqualified acceptance of your responsibility for your offending. Mr Backwell sought to characterise your application for change of plea as making a “technical legal argument”. Some may find it difficult to reconcile that argument with the concept of remorse, given the catastrophic consequences for your victim.
39It is clear that when a court assesses the gravity of a particular instance of recklessly causing serious injury, both the degree of probability that serious injury will result and the degree of seriousness of the injury foreseen are both to be considered.[19] Mr Sullivan at the original plea hearing submitted that, although the continuing impact of the injury upon Mr Chalmers cannot be overstated, your act was over reactive and spontaneous and the degree of seriousness of the injury foreseen, he submitted, was “at the lower end of the spectrum of recklessness”.[20] I find this a difficult submission to accept. This was not a classic example of a “king hit” where your victim, after being struck to the head, went immediately to the ground and became unconscious. However, as previously mentioned, you had already assaulted Mr Chalmers by grabbing him to the waist of his jeans and flinging him off balance somewhat and then pushed and shoved him. Your partner was trying to get you to cease your aggression but, ultimately, you moved suddenly towards Mr Chalmers and delivered not one but two punches to the right side of his head with what is described by his wife as a closed fist. The rapidity of this double-punch assault did not allow Mr Chalmers time to protect himself from it. I have already commented upon your solid build and the significant disparity in age between yourself and your victim. Given all of the circumstances to which I have just referred, the delivery of two punches with a closed fist in quick succession to the head of a human being, which obviously houses the brain, is likely to carry a relatively high foreseeability of serious injury.
[19]Winch v The Queen (2010) 27 VR 658 at 665, paragraph 36
[20]Outline of submissions in mitigation of sentence on behalf of the defence 9 March 2021, “MFI-1”, 9 March 2021, paragraph 22.
40It is plain that you were in an agitated state and I accept that you had apparently been told that you could not remain at the home of your partner’s mother where you had been earlier that day. The reasons for that were not made apparent to the Court, but you have admitted being affected by methylamphetamine. You told the Court that you had not been given parole in relation to the 15 month sentence of imprisonment that you had completed two weeks earlier as you had no home address. If that is true, it is a sad state of affairs. You apparently have a reasonably close relationship with your sister and also with your father, so it is perhaps surprising that they were unable to assist you with, at least, some initial accommodation. Clearly you were in a stressed state of mind but this was very significantly contributed to by you. As Mr Sullivan told the Court, you had done very little else since your release from custody on 10 June 2020 other than drink alcohol and take methamphetamine with like-minded associates.
41It seems that you had not utilised the 15 months in custody to develop any great insight into factors relating to your criminal offending. You told the Court on 9 March 2021 that, after being remanded in custody for the offending for which I must sentence you, you decided not to resume a Methadone program upon which you had been during the 15 months in custody. You told the Court that you “wanted to get off it … like I'm over drugs.”[21] In this regard I note Dr Bird’s view that your substance misuse is directly and indirectly linked to your offending behaviour and should be considered a primary target for intervention. She recommended that you be assessed for an intensive substance misuse program if you remain in custody and, following on from this, an option of residential rehabilitation should be explored, although she noted that this was not something that you are currently motivated to undertake. She considered that, once released into the community, it was important you develop a relapse prevention plan and strategies to manage high risk situations as well as being subjected to mandatory urinary drug screens.
[21]Page 46 of Transcript of plea proceedings, Lines 27 and 29.
42Dr Bird also recommended that whilst in custody you should undertake an offence specific intervention for violence and upon completion of a custodial sentence should be referred to the Forensicare Problem Behaviour Program so that you could be assessed for suitability for one-to-one offence specific intervention. She noted that you also needed assistance with emotional regulation and anger control. She noted that although you had demonstrated some motivation to change your lifestyle, given the length of time that you had spent in pro-criminal substance using circles, she thought it would be difficult for you to manage this alone and that you are likely to require professional support to make and maintain lasting changes as a matter of priority, including practical support with housing, employment and community transition.
43Whilst taking into account in your favour your plea of guilty and being conscious that there should be some tangible reduction in sentence due to it having been entered during a time when criminal trials were unable to be accommodated in this Court, along with the more burdensome nature of imprisonment under the pandemic restrictions which are currently ongoing, and your deprived and dysfunctional childhood, I have nevertheless expressed my reservations about your prospects of rehabilitation and the need for emphasis upon specific deterrence, protection of the community and just punishment. In all of the circumstances there can be no doubt that the only appropriate sentence is a relatively significant term of imprisonment.
44On one charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for 5 years and 4 months.
45I order that you serve a period of 4 years before being eligible for parole. I declare a period of 492 days of pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
46Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the total effective sentence imposed would have been 6 years and 4 months with a non‑parole period of 4 years and 10 months.
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