Director of Public Prosecutions v Fletcher
[2025] VCC 528
•30 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01574
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN FLETCHER |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2024 and 3 March 2025 | |
DATE OF SENTENCE: | 30 April 2025 | |
CASE MAY BE CITED AS: | DPP v Fletcher | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 528 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Intentionally causing serious injury – Common assault.
Legislation Cited: Crimes Act 1958, s 16; Sentencing Act 1991, ss 5(2H), 6AAA, 18.
Cases Cited:R v Verdins (2007) 16 VR 269; Boulton v The Queen (2014) 46 VR 308.
Sentence: Total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months.
s 6AAA:But for the plea of guilty, a sentence of 7 years with a non-parole period of 5 years would have been imposed.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. de Vietri | Office of Public Prosecutions |
| For the Accused | Mr D. Zajd | Victoria Legal Aid |
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HIS HONOUR:
Introduction
1Mr Fletcher, you have pleaded guilty to a charge of common assault for which the maximum penalty is five years’ imprisonment.[1] You committed that offence against your daughter, Stephanie Fletcher, on 17 October 2018, when you were aged 59 and she was 25. The offence involved you deliberately placing her in fear of being imminently physically assaulted.
[1] Charge 1 on Indictment P12346420, contrary to common law.
2You also pleaded guilty to a charge of intentionally causing serious injury, for which the maximum penalty is 20 years’ imprisonment.[2] You committed that offence against your wife, Mesing Fletcher, on 6 November 2023, when you were aged 64 and she was 58. In essence, you attacked her with a knife causing three penetrating wounds to her body and other injuries to her hands. You had never been physically violent towards her previously.
[2] Charge 2 on Indictment P12346420 laid pursuant to s 16 of the Crimes Act 1958 (Vic).
3I note that you are now aged 65,[3] your wife is 60 and your daughter is 31. You also have a 27 year old son named Jamie.
[3] Mr Fletcher was born in May 1959.
Circumstances of the offending
4The circumstances of your offending are set out in the typed Summary of Prosecution Opening.[4] The basis on which you now fall to be sentenced was also discussed during the plea hearing. I have had regard to that opening and to those discussions when determining the appropriate sentence in this case.
[4] Dated 3 December 2024 (Exhibit A).
5For present purposes, your offending can be summarised as follows.
6After meeting in Malaysia, you and Mesing married in November 1986. She moved to Australia soon afterwards, in early 1987. That relationship produced two children; a daughter Stephanie and a son Jamie.[5] The family home was located in Hoppers Crossing.
[5] Jamie is now aged 27.
7Initially, the relationship with your wife was a very good and trusting one, although there were some arguments. You found it difficult to deal with stress and to parent Jamie, who lives with autism. The frequent arguments between you and he was a significant stressor in your life.
8You have suffered from poor mental health for many years and have received treatment intermittently over the past 20 years. You have a history of chronic depression, attempted suicide and suicidal ideation.
9In approximately 2004, you were suicidal and had ceased working due to a back injury and mental health issues. You were placed on a disability support pension in 2005 at which time Mesing became your full-time carer. She continued to perform that role until you assaulted and seriously injured her.
10In August 2011, Mesing had surgery to remove her left kidney due to kidney stones.
Charge 1: Common Assault
11On 17 October 2018, Stephanie gave a driving lesson to Jamie, who was then aged 21.
12At the time, Stephanie was living in the family home but was due to move to Western Australia to live with her boyfriend.
13You sat in the back seat of the car during the driving lesson. At one point, an argument between you and Stephanie about Jamie’s driving escalated to the point where you raised your voice and became verbally aggressive towards her. It was uncharacteristic as you did not usually behave like that. It made her feel uncomfortable.
14After the lesson, Stephanie believed everything was fine and went to her bedroom. In fact, you remained very angry for the rest of the day. Mesing stayed up with you that night, sitting on the couch. You appeared very angry and were breathing very heavily.
15Later that night, you told Mesing that you wanted to scare Stephanie. You then went to the kitchen and grabbed a large meat cleaver from a drawer.
16At about midnight, Stephanie was in the bathroom when she heard you threatening violence towards her and taking what she believed to be a knife from the kitchen drawer. She ran to her bedroom in fear, then shut the door and leaned against it to prevent you from gaining access. She could hear you coming towards her room at a fast pace. You tapped on the door while Stephanie held it closed. She was afraid that you were about to physically assault her. That conduct on your part forms the factual basis for the offence of common assault alleged in Charge 1 on the indictment.
17Mesing intervened and stood between you and the door to Stephanie’s bedroom. After taking the weapon from you, she coaxed you away and managed to calm you down somewhat, although you remained very angry. Mesing stayed up all night as she was afraid that you may hurt Stephanie.
18Stephanie was too scared to leave her bedroom that night and was unable to sleep.
19In the morning, Stephanie packed her car and went ahead with her planned move to Western Australia.
20Although she felt very upset about the incident, she did not want to report it to the police as she was not sure it would be taken seriously, and she did not want to complicate or escalate the situation between her parents.
21There was no contact between the two of you for some years, however, by the end of March 2022, you were back on speaking terms with Stephanie, although she remained scared of you. When you and Mesing visited Stephanie in Western Australia, you appeared to her to be happier and healthier.
Background to Charge 2: Intentionally Causing Serious Injury
22In late September 2023, you and Mesing visited Stephanie again. In early October you told Stephanie that you were feeling suicidal. According to Mesing, you appeared paranoid, especially about receiving a speeding fine in Western Australia, even though there was no factual basis for it.
23On returning to Victoria on 10 October 2023, you were paranoid about police taking you back to Western Australia for a speeding fine.
24On 13 October, you ingested petrol and cut your left wrist in an attempted suicide. You were hospitalised overnight and returned home the following day. As a result, Mesing took measures to prevent you from being able to self-harm, including hiding the kitchen knives.
25Between 14 and 21 October, Mesing and Jamie were very concerned about your declining mental health. Mesing was concerned about you killing yourself as you had referred to doing so several times and had purchased a bottle of weed killer.
26On 21 October, Mesing convinced you to attend hospital. You spent two nights in the emergency department at Werribee Mercy Hospital before being transferred voluntarily to the psychiatric ward. You were discharged on 24 October.
27Following your discharge, Mesing still held grave concerns that you were planning to kill yourself and actively looking for opportunities to do so. She took further preventative measures, including hiding the kitchen knives in a cabinet behind the oven, hiding the keys to the car and restricting your access to money so you were unable to purchase materials to harm yourself with.
28On 27 October, you woke Mesing up at 2:00 am and told her 'You got to let me do it. Just give me the key.' She understood this to be a reference to suicide and the car key which she had earlier hidden. You also said, 'If you don’t want me to do it by myself then we go do it together.' She understood this to mean die together. She felt scared and told you she did not want to die. She then waited for you to fall asleep.
Charge 2: Intentionally Causing Serious Injury
29On 6 November 2023, between approximately 10:00 and 10:30 am, Jamie left the family home to attend an appointment. Just before he left, you asked him when he would return. Mesing then covertly asked Jamie to return as soon as possible.
30When Mesing went to your shared bedroom shortly after Jamie had left, she observed you down on your knees trying to force open a locked filing cabinet with a large bread knife. The cabinet contained your wallet which Mesing had locked away to prevent you from buying more weed killer. When she asked you what you were doing, you followed her into the hallway where you then pushed her while repeatedly asking her where the key was. Reluctantly, she gave you the car keys which she had hidden in a wardrobe in Stephanie’s room. You then pushed her with both hands to her shoulder area, causing her to fall onto the floor. Her efforts to get up and move away from you were repeatedly thwarted by you pushing her back into Stephanie’s room.
31When Mesing was able to get to the hallway, you grabbed hold of her and pushed her onto the floor again.
32Upon realising she would not be able to escape, she screamed for help in the hope that a neighbour might hear. You attempted to stop her continuing to do so by putting your hand over her mouth.
33While squatting on top of her, you produced the long serrated bread knife[6] and started swinging it in a hammering motion towards her abdominal area. Your attempt to stab her several times in the abdomen was unsuccessful as the rounded tip of the knife could not pierce her clothing.
[6] It was approximately 33cm in length.
34Mesing attempted to stop you from stabbing her by raising her hands to block the downward strikes of the knife. As a result, she suffered substantial defensive wounds to her hands.
35Unable to pierce through Mesing’s clothing with the knife, you then changed tack and lifted up her top to allow direct contact with her skin.
36You then stabbed her multiple times using a lot of force. While doing so, you repeatedly said 'You are the problem!'
37Mesing suffered two stab wounds to the right flank of her abdomen area and one wound on her left abdomen, as well as multiple other lacerations.
38During the incident, she was terrified for her life and begged you to stop, saying 'Don’t kill me, I want to live. I don’t want to die.' Despite this, you continued to stab her, targeting the right side of her abdomen area while she screamed 'God please help me!'
39Mesing continued to struggle and was eventually able to get up and run to a neighbour's house for assistance. On being let in, she collapsed.
40Mesing estimated that the whole incident lasted approximately 30 minutes.
41Police arrived promptly after being contacted by the neighbour. They provided first aid to Mesing until paramedics arrived. She lost consciousness. She was conveyed to Royal Melbourne Hospital by ambulance where she underwent emergency surgery.
42A laparotomy was performed to investigate potential injuries to internal organs and to control bleeding to the right flank wall. She required plastic surgery to repair laceration wounds to her hands.
43The hospital noted the following injuries:
·Stab wounds, including:
otwo stab wounds to the right flank; and
oone stab wound to the left abdomen.
·Abdominal injuries, including:
oright peritoneal blood collection;
oomental bleeding;
oright side kidney small upper pole laceration (Grade 3) with blood collection in the flank wall, and blood collection around the right kidney; and
oongoing active bleeding from abdominal muscular wall at right flank, which was sutured to good effect.
·Wounds to both hands, including:
oA through and through wound on the back of the right hand first web space;
oA wound to the right thumb with full severing of the thumb bending tendon at the outer aspect of the thumb;
oA right palm wound to the skin only;
oA right middle finger pulp wound;
oA left ring finger wound with deep finger bending tendon, 40 per cent injured, at the outer finger aspect;
oA left index finger skin only wound;
oA wound to the back of the left wrist into the joint;
oA left middle finger wound with full outer finger band injury towards the little finger and a partial slip of a finger part;
oThree wounds to the back of the left hand;
oThree wounds to the palm of the left hand; and
oA wound to the right elbow.
44On 13 November, Mesing was discharged from hospital with outpatient follow-up reviews.
45In relation to her prognosis, her doctor at the Royal Melbourne Hospital was of the opinion that:
·She would have ongoing morbidity secondary to her injuries to both hands with limited function due to the injuries and possibly only gradual recovery with ongoing rehabilitation; and
·Given she has only one viable kidney, the injury to the right kidney could potentially put her at more risk of developing labile blood pressure and further need for ongoing medical intervention in the near future.
46In relation to hand therapy, Mesing had ongoing reviews for weeks. On 6 December, approximately four weeks after surgery, it was noted that the finger bending range was still significantly impaired and the scars were 'very firm' and 'hypertrophic', requiring complex treatment with scam massage, night splint and exercises.
47In addition, she felt overwhelmed regarding her injuries and required psychosocial support.
48In a report dated 8 April 2024, the forensic physician Dr Jason Schrieber provided the following opinions as to the seriousness and consequences of her injuries:
·If there is no functioning kidney, a person cannot live. The injury to Mesing’s only kidney would require ongoing monitoring of related functions for the rest of her life. There is a future high risk of heart and circulation problems due to the injury to that kidney;
·Retroperitoneal bleeding occurs when the blood enters into the space directly behind the abdominal cavity. This type of bleeding is a life-threatening condition and required prompt management;
·There were deep injuries to the abdomen which required immediate major abdominal surgery to stop the ongoing internal bleeding. There will be a large scar on the abdomen due to the surgery. There is a future high risk of abdominal structures sticking together;
·There were multiple stab wounds to the torso. The act of applying sharp force to the torso is potentially life-threatening;
·There were multiple injuries inflicted to the hands, including injury to deep tendon structures. Without surgical treatment, the function in the hands would have remained impaired for the rest of her life. Even with the treatment, there is a future high risk of hand function not returning to normal; and
·After several weeks, there was evidence of psychosocial consequences due to the injuries and their mechanism.
49Mr Fletcher, your actions in stabbing Mesing Fletcher with a knife and thereby causing her the injuries to which I have referred, provides the factual basis for the offence of intentionally causing serious injury alleged in Charge 2 on the indictment.
Arrest and interview
50When police first attended the scene, you were standing on the footpath outside the family home. You were subsequently arrested and, when questioned, told police that the knife used during the incident was at the front door of your home.
51Later that day, at 1:48 pm, you were assessed and deemed unfit for interview.
Pre-sentence detention
52You were subsequently charged and remanded in custody, where you have remained to this day. In the event that you are given a custodial sentence today, the total period of pre-sentence detention to be declared for this matter is 541 days, up to but not including today’s date.
Victim impact
53The impact of your offending on your wife and daughter has been significant.
54In her victim impact statement dated 22 November 2024,[7] Mesing Fletcher states that it has taken her a long time to try to adjust and accept what happened. She has forgiven you but remains scared of you and does not want to live with you. She no longer feels safe, particularly around men, and has withdrawn socially. She worries a lot, has trouble sleeping and struggles to cope when confronted with a problem. As she also notes, the injuries were very painful at the start and she continues to experience ongoing problems with her hands, in particular her left middle finger and her right thumb, including weakness, limited movement and difficulty holding objects.
[7] Exhibit C.
55In her victim impact statement dated 26 November 2024,[8] Stephanie Fletcher states that your offending against her initially had a significant negative impact on the relationship. Your offending against her mother caused her to experience a roller coaster of emotions. She felt shocked and it took many months to try and make sense of what had happened. She had trouble sleeping and eating, suffered panic attacks and felt exhausted physically and mentally. The two months that she spent in Melbourne looking after her mother took a significant toll, emotionally and financially. She struggled to return to work and had to work part-time and then change roles to try and recover.
[8] Exhibit B.
56In his victim impact statement dated 22 November 2024,[9] Jamie Fletcher states that he was shocked by what you did to his mother and even now struggles to understand and comprehend what took place. Afterwards, he felt scared and sad, he had trouble sleeping and he worried about his mother. He believes his life has changed as a result of what you did.
[9] Exhibit D.
Guilty plea
57In circumstances where your legal representatives were required to ensure that you were properly assessed, I am satisfied that your plea was entered at an early stage and warrants a significant sentencing discount. Your initial plea offer made at committal mention stage on 6 August 2024 was not accepted by the prosecution. The matter then resolved on a different basis on 4 September 2024. The matter then proceeded to a plea hearing via a straight hand-up-brief procedure. At no stage were any witnesses required to be called.
58By taking that course as and when you did, Mr Fletcher, you have saved the community from the cost and time of a contested hearing and demonstrated a willingness to facilitate the course of justice.
59Importantly, your early pleas have spared your family members, and in particular your wife and daughter, from the ordeal of giving evidence and being cross-examined.
Remorse
60Whilst I am prepared to accept that your pleas evidence some remorse on your part, it and any insight you possess, appear to be somewhat limited. I expect that may well be attributable to the problems associated with your longstanding mental health issues.
No prior or subsequent criminal history
61I note that you have no prior or subsequent criminal history which is consistent with the observations of your wife to the effect that your current offending was out of character and attributable in some way to the mental health problems you were experiencing at the time.
Personal circumstances
62I now turn to consider your personal circumstances, Mr Fletcher. Your background is helpfully set out in your counsel’s written submissions[10] and in the detailed report of the psychologist, Simon Candlish.[11]
[10] Dated 24 February 2025 (Exhibit 1).
[11] Dated 3 February 2025 (Exhibit 2).
63You are one of four children in your family. Your older sister committed suicide. You have an older and a younger brother. You have never had a close relationship with any of your siblings.
64Your parents' relationship was unstable, and they experienced multiple separations prior to permanently separating when you were six or seven years of age. From that point, you and your siblings continued to live with your mother, apart from one period when you lived with your father. You remember your father being a heavy drinker and physically abusive to you and your mother. You remember your mother being both physically and verbally abusive towards you over many years, which caused you to run away from home on multiple occasions.
65You appear to have had no close friends and no other supports while growing up.
66You left school part way through Year 9. On your account, that was because you wanted to work and were experiencing problems with your mother and siblings.
67You commenced to work in warehousing at age 14 and maintained regular employment in that field until ceasing employment in 2004 due to a back injury and the mental health problems you were experiencing.
68You regularly consumed alcohol between the ages of 16 and 22 and resumed drinking in your late 30s but only on an occasional basis.
69Your problems with mental health are of longstanding. You have a history of depression and suicidality since childhood. In his report, Mr Candlish sets out in some detail your mental health history.[12] You remember seeing a psychiatrist for six months about 20 years ago and taking various prescribed medications over the years. You are currently prescribed the anti-psychotic, Quetiapine.
[12] See [51]-[74] of Exhibit 2.
70As noted by Mr Candlish, you participated in a mental health program in 2005 and were admitted into psychiatric care for two days in October 2023, at which time you were found to be actively suicidal and diagnosed with depression. You had seen psychologists in the past and had been prescribed Seroquel for anxiety and depression. By reference to the report of Sarah Tiong,[13] Mr Candlish also notes that you attended regular treatment sessions with a psychologist over a period of approximately 10 years, ending with your remand on this matter.
[13] Dated 19 December 2024 (Exhibit 3).
71As Ms Tiong herself notes, your psychiatrist referred you to her for psychological treatment of major depressive disorder and suicidal ideation in mid-2014. You continued to be treated by Ms Tiong until your remand for this matter in late 2023. During that time, you engaged in sessions from a cognitive behavioural therapy approach to address issues with your mood, anxiety, family stress, sleep disturbance, health worries and past negative experiences from childhood.
72As also noted by Mr Candlish, whilst on remand in prison you have been assessed as having depression and possibly schizoaffective disorder. Given the family history, autism spectrum disorder was also raised as a possibility and this led to you being assessed for that condition in January 2024. Your scores were suggestive of you having that condition and, in addition, you were seen to present with signs of a personality disorder. However, a lack of collateral information regarding your childhood was considered to complicate the diagnosis.
73In an occupational therapy report dated 9 January and 7 February 2024, you were recommended for a NDIS application, which has since been made but awaits determination.
74Mr Candlish interviewed and assessed you on 19 December 2024 and 7 January 2025 and administered a number of tests.
75He concluded that you meet the criteria for a persistent depressive disorder (moderate severity) and that your symptoms are partly addressed through medication.
76In addition, he considered that you meet the criteria for a mild personality disorder with prominent features of negative affectivity. He also agrees with the recent diagnosis of autism spectrum disorder.
77Mr Candlish observes that you are likely to be a socially isolated individual who has few interpersonal relationships that could be described as close. He considers your interpersonal style is withdrawn and introverted; you see others as rejecting and uncaring. You are likely to be a hypervigilant individual who often questions and mistrusts the motives of those around you. You are extremely sensitive in your interactions with others and likely harbour strong feelings of resentment as a result of perceived slights and insults. You are quick to feel that you are being treated inequitably and often hold grudges against others, even if the perceived affront is unintentional. When experiencing a discomforting level of anxiety and tension, your ability to concentrate and attend are likely to be significantly compromised.
78Mr Candlish summarised your offending by noting that in 2018 you had expressed anger towards your adult daughter and threatened to harm her before banging on her door with a meat cleaver, and then in 2023, stabbed your wife with a rounded knife in the context of mental health decline, including suicidality. Mr Candlish expressed the following opinions:
79To his mind, your offending appears highly contextual and situational in nature. You are interpersonally sensitive with a history of childhood adversity that you are very ashamed of. You appear to be a conflict avoidant personality prone to resentment due to your ordinarily submissive and passive nature. As he goes on to note, it would appear that the violence in which you engaged was related to mounting resentment and interpersonal sensitivity in the context of your unaddressed personality disorder, depression, paranoia and real or imagined judgement from your children and wife.
80In terms of the offending itself, you told Mr Candlish that you continued to feel angry with your daughter, got 'a knife or something' and banged on her bedroom door wanting to frighten her. In relation to the second incident, you said that you were feeling suicidal and paranoid. You were aware that your wife had been hiding the knives. You suggested that your wife had the knife initially and that you got it from her and must have stabbed her because you could not take the pressure anymore. You had no real explanation for why you behaved in such an aggressive manner on that occasion.
81Mr Candlish found your account of the offending unusual in that it lacked self-reflection about your actions and suggested a sense of persecution by your daughter, son and wife. You appeared uncomfortable and reluctant to discuss your use of the meat cleaver and knife against your daughter and wife respectively. Nonetheless, your presentation and description were, to Mr Candlish’s mind, suggestive of distorted thinking and he considers that you were likely to have been experiencing severe symptoms of depression based on your presentation and history. In the context of your deteriorating mental health, including depression, some paranoia, possible psychotic symptoms and perceptions of hostility towards you, you experienced intense anger and rage.
82As to any link between your condition and the offending, Mr Candlish noted the following: You reacted disproportionately to conflict with your daughter and wife in the context of a history of strained relationships with them. Your personality disorder impacts on your perceptions of others and their intentions. You experienced interpersonal sensitivity and interpreted your daughter and wife as rejecting or hostile. You also experienced depressive symptoms including suicidal ideation at the time of the offence against your wife. It appears that your capacity for rational and clear decision-making was impaired due to the nature of your personality disorder and increased stress, contributing to paranoia as well as the impact of your depression. You deteriorated to the point of regarding your wife as hostile and deliberately antagonising you.
83In terms of any future risk of violence, Mr Candlish ultimately concluded that you fall into the low-risk category for a violent offence. In the event that you decided to re-offend in a violent manner, it would most likely involve a threat to harm or assault a family member or a known individual. Should you be in close ongoing proximity to a person known to you and experience chronic conflict and an ongoing sense of hostility and rejection from that person while also suffering a decline in your mental health, the level of risk would be increased.
84In terms of your experience of custody, you told Mr Candlish that you had experienced an uncomfortable level of stress, anxiety and tension due to being in prison. You alluded to feeling very unsettled and stressed in prison. You went on to indicate that you were receptive to the various supports and interventions offered and said that you were 'getting a lot of help in here and how to deal with different situations'. Mr Candlish observed that you appeared to be receptive to interventions designed to support you and to taking prescribed medication to address your symptoms.
85In his report Mr Candlish stated that you appeared to be experiencing considerable stress associated with being incarcerated and presented as quite vulnerable based on the nature of your personality impairment and compromised mental health and sensitivities. Unsurprisingly, he considers that you will require ongoing psychiatric and psychological support in prison.
86On the issue of whether your mental health condition would be likely to deteriorate further, Mr Candlish observed that you might experience such a deterioration in the context of any long-term imprisonment. You are vulnerable to stress and low mood and prison represents a stressful environment for someone like you to navigate. There is a risk for suicide, particularly in the event that you receive a long prison term.
87In this context, it is important that you continue to receive and engage in ongoing mental health support whilst in custody, including by way of taking any prescribed medication for your condition.
88In terms of any recommended treatment, Mr Candlish first notes that whilst you have received psychiatric care and psychological treatment in the past, gaining some emotional support from the latter, you have struggled to benefit from such treatment and your depressive symptoms have been persistent. Furthermore, you lack insight.
89He suggests that you could benefit from a number of interventions, including longer-term individual psychological treatment, ongoing monitoring and review of medication and assistance with securing and maintaining suitable and stable accommodation, employment and NDIS support.
Matters in mitigation
90Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Fletcher, including the following:
91You assisted police to locate the knife used to stab your wife.
92You pleaded guilty at an early stage of the proceedings which has been of significant utilitarian value and warrants a commensurate discount in your sentence.
93You have no criminal history whatsoever, which, for a man of such mature years, is a significant matter in mitigation.
94Whilst the detail is lacking to some degree, it would appear that you experienced a quite disadvantaged upbringing which was marred by parental discord as well as physical and verbal abuse. This no doubt contributed to the development of your compromised personality style. It is appropriate to have regard to that unfortunate background when assessing your level of moral culpability for this offending and the appropriate penalty to impose.
95Despite leaving school at a relatively early stage, it is to your credit that you were regularly employed until 2004, when your physical and mental health prevented you from working.
96Given the available material in relation to your mental health, and in particular the report of Mr Candlish, which I have found very helpful, I am well satisfied that Limbs 1, 3, 4 and 5 of Verdins[14] have been engaged such that your moral culpability for your offending is reduced, as is the weight to be attributed to general and specific deterrence. It is also appropriate to take into account the additionally burdensome experience of custody for you as compared to a prisoner of sound mental health when determining the length of any custodial sentence to impose in your case. Of course, your age and lack of any familiarity with the criminal justice system, and in particular the prison environment, will also make the service of any sentence of imprisonment more difficult.
[14] R v Verdins (2007) 16 VR 269.
97I am ultimately of the view that Limb 2 of Verdins has no real role to play in the circumstances of this case as I have ultimately concluded that this is not a borderline case where a non-custodial or even a combination sentence is realistically open.
98Nor am I satisfied that Limb 6 has been engaged since there is an insufficient evidentiary basis to make any contrary finding. Any reference to imprisonment causing a deterioration in your mental health was couched in less than emphatic terms by Mr Candlish and ultimately involved a degree of speculation.
99To your credit you are actively embracing the mental health support being offered to you in custody and are medication compliant. Whilst you do not appear to have a fully developed sense of remorse or insight, it is of some comfort to the court that you have taken that approach. It is to be hoped that you continue to engage in that way on your eventual release from custody. Of course, the best means by which to facilitate any such treatment at that time will be a matter for the Adult Parole Board to consider in the event that you are deemed eligible for release on parole.
Gravity of the offending
100Of course, matters personal to you are not the only considerations that this court must have regard to, Mr Fletcher.
101The objective gravity of your offending is a further and important matter to take into account.
102The offence of common assault is inherently serious as reflected by Parliament having made available a term of imprisonment of up to five years in an appropriate case.
103I consider this example of that offence to be a relatively serious example, although not at or towards the upper part of the spectrum of seriousness for this type of offence. The offence occurred after some period of reflection and was certainly not spontaneous. It involved the use of a weapon to place the victim in considerable fear, if not terror. It occurred in the victim’s home where she was entitled to feel safe. By acting as you did, you breached the trust that your daughter placed in you in a serious fashion. That offence clearly traumatised your daughter at the time and no doubt for a period afterwards.
104The offence of intentionally causing serious injury is intrinsically very serious in nature.
105Not only does it attract the very high maximum penalty of 20 years’ imprisonment, but it has been deemed a Category 2 offence by Parliament, with the consequence that any offender sentenced for such an offence must be sentenced to a term of imprisonment other than in combination with a community correction order unless the court is satisfied that one or more of the limited statutory exceptions apply. I will say more about that issue later.
106Again, I consider this example of that offence to be a relatively serious example of its type, falling in the mid-range on the spectrum of seriousness for such offences. In contrast to the offence against your daughter, this offence was more spontaneous in nature. That said, it was very nasty, involving as it did the use of a bladed weapon wielded with considerable force and directed at vulnerable parts of the victim’s body. The attack was persistent and ferocious and resulted in three penetrative wounds to the victim’s body and multiple wounds to her hands. The victim was clearly terrified throughout her ordeal which lasted for a considerable time, minutes not seconds. Your actions were determined in nature and carried out despite and in the face of the victim’s continuing pleas for you to stop as she did not want to die. As with the offence against your daughter, this offence is aggravated by the fact that it occurred in the family home and in breach of the trust that your wife placed in you as your wife and your carer. Whilst her injuries do not fall at the upper end of the range of injuries that can qualify as serious, they are significant enough and will likely continue to impact adversely on your wife’s quality of life for years to come. The impact that this offence has had on her to date has been very significant and ongoing. Furthermore, and unsurprisingly, it has also impacted adversely on each of your two children.
Category 2 offence
107When a court is called upon to sentence an offender for a qualifying Category 2 offence under the Sentencing Act 1991 (‘the Act’) it must impose a sentence of imprisonment other than one combined with a community correction order unless satisfied that one or more of the limited statutory exceptions are established.
108In this case, the defence submitted that the court should be satisfied that the exceptions in either or both of sub-ss(2H)(c)(i) and (ii) of s 5 of the Act have been established.
109The prosecution submitted to the contrary, arguing that any reduction in your culpability for the offence against your wife did not reach the high degree required under sub-s(2H)(c)(i), and that the increased burden or risk of imprisonment brought about by your impaired mental functioning did not reach the necessary level required by sub-s(2H)(c)(ii).
The s 5(2H)(c)(i) exception
110For the first of those exceptions to be established, the offender must prove, on the balance of probabilities, that, at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability.
111In light of the available material and especially the findings of Mr Candlish, which I have taken the time to set out in some detail already, I am satisfied that you had impaired mental functioning at the time you committed each of the offences, for the reasons given by him. Clearly, your personality disorder played a role in your commission of the offence against your daughter and that same condition, together with your significant level of depression, were causally linked to the offence against your wife. Thus, I accept that your perceptions in relation to each victim were skewed in the manner explained by Mr Candlish and your capacity for rational and clear decision-making was impaired, particularly on the second occasion involving your wife.
112In undertaking the further qualitative assessment required by this sub-section, I have had regard to all of the available materials and evidence, including the findings of Mr Candlish, your lack of any previous aggression and the observations of your wife and son as to how you had been acting in the lead up to 6 November 2023. Ultimately, and in all the circumstances, I am satisfied that the impaired mental functioning that you experienced at the time that you attacked your wife was sufficiently serious as to warrant treating your culpability as substantially and materially reduced.
113Accordingly, the test set out in s 5(2H)(c)(i) has, in my view, been met.
The s 5(2H)(c)(ii) exception
114For the second of those exceptions to be established, the offender must prove, on the balance of probabilities, that the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
115Having considered all relevant materials and undertaken the necessary analysis, I have ultimately concluded that whilst your mental impairment will mean that the burden or risks of imprisonment will be greater for you, it will not be substantially or materially greater.
116Accordingly, as one of the statutory exceptions to s 5(2H) has been engaged, this court is not prevented from imposing a combination sentence in respect of the offence in Charge 2 if such a disposition were otherwise open and appropriate.
Relevant sentencing principles
117In this case a number of the sentencing principles need to be sensibly moderated on account of my findings in relation to the applicability of some of the principles in Verdins.
118Thus, general and specific deterrence have reduced significance although they remain important considerations for this court.
119In the context of specific deterrence, I note that whilst you are willing to engage in treatment for your mental health, you were being treated and medicated at the time of your offending, and you currently have limited insight. Further, as Mr Candlish explains in his report, in the event of a constellation of factors arising, you are at risk of committing further violence. Whilst you are unlikely to have any future contact with your family, you will likely need the assistance of a carer, and that situation will need to be carefully managed. It is perhaps trite to note that in the event that your currently assessed low risk of committing further violence is in fact realised, such an event could have very serious consequences indeed.
120For similar reasons, protection of the community is a relevant, albeit not prominent, sentencing consideration.
121Denunciation is also relevant.
122This court must also have regard to your age and prospects of rehabilitation. Doing the best that I can on the available material, I find that those prospects are good but somewhat guarded.
123In the context of you being sentenced for two offences, not one, this court must act in accordance with the totality principle. In that context, it should be noted that these offences were separated by a period of some years, involved separate and discrete criminality on your part and were perpetrated against different victims. Given that I intend to impose a term of imprisonment for each charge, a moderate level of cumulation is appropriate as is a sensible level of concurrency.
124I have also had regard to the principle of parsimony.
125Ultimately, this court must justly punish you for your offending having regard to all of the relevant factors relating to both the offending and you personally. Individualised justice is what is required in this, as in every case.
Sentencing submissions
126In his sentencing submissions, your counsel urged the court to impose a combination sentence of a term of imprisonment followed by a community correction order so that you could receive the necessary level of support and professional assistance. He sought to justify such an admittedly 'bold submission' on the basis that this was a somewhat unique case which involved unusual offending by an offender who was in an unusual situation.
127Contrastingly, counsel who appeared on behalf of the Director submitted that the seriousness of this offending was of such an order that nothing other than a substantial sentence of imprisonment in the form of a head sentence with a non-parole period was open to the court.
Analysis
128This is a somewhat unusual case, involving as it does the commission of serious offences against two vulnerable female victims by a mature aged man of previously good character who was acting out of character while experiencing compromised mental health. There are significant features of the case both in aggravation and mitigation of that offending.
129As the Court of Appeal made clear in Boulton[15] and in subsequent cases, a combination sentence can be appropriate even for serious offending, including for offences that may have previously attracted a term of imprisonment. But it is not a rule of universal application, however, and as was also noted by that court, there will be some cases where the offending will be just too serious for such a disposition.
[15] Boulton v The Queen (2014) 46 VR 308.
130In this case, I note that a combination sentence could entail a further period of imprisonment of up to 12 months on top of the period of 541 days of pre-sentence detention already served.
131Having given the submissions of the parties careful consideration, and after having regard to all of the relevant circumstances of this case, I have ultimately concluded that this offending is sufficiently serious to justify the imposition of a head sentence and a non-parole period. In my considered view, any lesser sentence, including a combination sentence, would not represent a just punishment for such offending and would simply fail to recognise and give appropriate weight to a number of the relevant sentencing considerations.
132That said, the constellation of matters in mitigation that arise in this case are such that I have considered it appropriate to impose a materially lesser sentence than I would have otherwise imposed.
133To the extent that it is able, this court will endeavour to assist and encourage your rehabilitation, Mr Fletcher.
Sentence
134After having carefully considered, balanced and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows, Mr Fletcher:
135In relation to each charge in the indictment, you will be convicted and sentenced to a term of imprisonment.
136On Charge 1, common assault, the sentence is one of nine months.
137On Charge 2, intentionally causing serious injury, the sentence is one of four years and nine months.
138The sentence of four years and nine months imposed on Charge 2 will be the base sentence.
139I order that three months of the sentence imposed on Charge 1 is to be served cumulatively on that base sentence.
140The total effective sentence is therefore five years’ imprisonment.
141In respect of that head sentence, I fix a non-parole period of three and a half years.
Pre-sentence detention
142Pursuant to s 18 of the Act, I declare that you have served a total of 541 days pre-sentence detention, not including today's date, in respect of this sentence. I order that such period is to be reckoned as already served under this sentence, and I further order that the declaration and its details be entered in the records of this Court.
Section 6AAA indication
143Pursuant to s 6AAA of the Act, I indicate that but for your plea of guilty you would have been sentenced to a total effective sentence of seven years’ imprisonment with a non-parole period of five years.
Other matters
144Are there any matters that either counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with the defence.
145MR ZAJD: No, Your Honour, not at this stage.
146MR de VIETRI: No thank you, Your Honour, not from the prosecution.
147HIS HONOUR: Thank you. Mr Zajd, you will be permitted to have a brief conversation with your client using the current video link once I leave the bench, if you wish.
148MR ZAJD: Thank you, Your Honour.
149HIS HONOUR: Very well. Please now adjourn the court, Mr Tipstaff.
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