Director of Public Prosecutions v Garth

[2022] VCC 1244

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01134

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN GARTH

---

JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2022
DATE OF SENTENCE:	5 August 2022
CASE MAY BE CITED AS:	DPP v Garth
MEDIUM NEUTRAL CITATION:	[2022] VCC 1244

REASONS FOR SENTENCE
---

Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Ms G. Boe (For Plea) Mr M. Saoud (For Sentence)	Emma Turnbull Lawyers

HIS HONOUR:

1Nathan Garth, you have pleaded guilty to one charge of recklessly causing serious injury (Charge 1), to one charge of threatening to inflict serious injury (Charge 2), to one charge of false imprisonment (Charge 4) and to one charge of kidnapping (Charge 4).  In addition, you have pleaded guilty to two charges of assault, which are summary charges (Summary Charge 5 and 7), and you have agreed to have them dealt with by me.

2The circumstances in which the offending occurred are set out in the summary of prosecution opening for plea dated 27 July 2022 – Exhibit 1.  Through your counsel the accuracy of the opening was accepted.  Shortly, all these offences occurred in a relatively short space of time on the night of the 29 and 30 October 2019.

3At that time you were in Victoria, in Bendigo, having only quite recently been released from custody in Tasmania.  You were 30 years of age.

4Emily Roberts lived with her father Ricky Roberts in Flora Hill, a suburb of Bendigo.  She had just formed a new relationship with Jason Gauci.  They were aged 26 and 33 respectively.  All three of them, that is Jason, Emily and Ricky, went to an associates address and there they met you.  When they left that address, you accompanied them in their car back to the Roberts residence.  There, the four of you drank alcohol and took methamphetamine over the balance of that day and into the evening.

5In the course of the afternoon, it was noticed that you were wearing a sheath knife and that as the day wore on, your behaviour became increasingly erratic. You were making comments to the effect that Emily should be with you rather than with Gauci.  These matters caused the other three some apprehension such that they asked you to take the knife off and put it down.  This you did.

6Your behaviour became increasingly erratic and part of that was an expression by you of a belief that Ricky and Jason wanted to kill you, though you offered no reason for this belief.

7In the early hours of 30 October, so later that night, Jason Gauci, Emily Roberts and you went to the vacant house, which was next door to the Roberts residence.  Upon entering that house, you immediately began to attack Jason Gauci with a knife, stabbing him repeatedly to the upper body (Charge 1 – recklessly causing serious injury).

8Gauci fled and after a time was picked up by police and taken to the Bendigo Hospital for treatment of his injuries.

9After Gauci had fled the vacant house, you took hold of Robertson and made her collect various belongings of yours before returning to her residence next door.  Upon your return, Ricky Roberts noticed the blood and you told him that you wanted to kill Jason Gauci and that you thought you had done so.

10Gauci sustained multiple stab wounds to the head, back and left arm. The left arm injury required extensive surgical repair of a transection of the radial nerve, from which full function had not been recovered at the time of the last medical reports and for which further surgery was anticipated.[1]

[1]See Medical Reports, Depositions 197 – 317

11Once back at the Roberts residence, you told Emily that the reason for stabbing Gauci was so that you and Emily could be together.  You prevented Emily and her father from using their phones and then attempted to persuade Emily that in the past her father had sexually abused her and was a rapist.  Next, you asked for bleach to clean up the scene of the stabbing and as there was none at that house, you made Emily go with you to an associate’s address to obtain some.  You then took Emily back to the scene of the stabbing where you made her assist in the removal of your clothing.  An attempt to burn the clothing was made, but Emily put the fire out.  Next, you made Emily and her father drive you to Spring Gully Road in Spring Gully, and there you disposed of the knife and the clothing in a water race before returning to the Roberts residents.

12At 5:30am the police attended.  They spoke to the three of you individually but within earshot of each other.  You told them that you had not been there earlier that night, and knew nothing of the stabbing, and, fearful of your response and because you were in a position to hear, Emily and her father also said nothing of note had gone on.

13The police remained at the house next door where the stabbing had occurred as it had been marked out as a crime scene.

14You then turned your attention to Ricky Roberts, demanding that he tell you the answer to a question that you had not asked.  You then punched him twice to the head (Summary Charge 5 – assault), before going to the kitchen, taking up a knife and threatening to stab him (Charge 2 – threat to inflict serious injury).

15Once it was daylight, you and Emily walked to a nearby address in Churchill Avenue.  You continued to act erratically and whilst you were there you armed yourself with two large kitchen knives before leaving.  The confinement and supervision of Emily – from the time you took hold of her at the house next door after Gauci had fled, up until the assaults upon Ricky Roberts – gives rise to the charge of false imprisonment (Charge 3) and the assault of Emily Roberts (Summary Charge 7).

16Sometime after leaving Church Hill Avenue, Flora Hill, you came across Sean Berryman.  He was a stranger to both you and to Emily Roberts.  He was leaving for work in his Nissan Patrol when you opened the passenger door and asked him for a lift. You said this was because of a family emergency.  Berryman declined, saying he had to go to work, but you ignored this response and got into his vehicle and told Emily to get in also.  Berryman agreed to drive you to Spring Gully Road as he could see no other way of getting you out of his car.

17On the way there, it emerged that Berryman was a shooter, whereupon you demanded that he drive back to his house to get the guns.  Emily Roberts tried to talk you out of this, but her efforts to do so only made you more agitated.  The discussion continued during which you became even more paranoid and agitated, until you produced a large kitchen knife and demanded that Berryman drive you back to his residence to get the guns.  You told Berryman that you had nearly killed someone earlier that day by stabbing that person and that you would stab Berryman through the chest if he did not turn the car around.  Berryman feared for his life, believing that the threat would be carried out (Charge 4 – kidnapping).

18Knowing that the police were still at the house next door, Emily advised Berryman to drive there, which he did, and upon seeing all the police cars, you told Berryman that they were there for you.  Berryman drove the car over the gutter and as he did so the motion of the car caused you to drop the knife.  You were then arrested without incident.

19You were taken to the Bendigo police station and there assessed by a forensic medical officer as being unfit to be interviewed.  You have remained in custody ever since, and to this date, you have been in custody for 1,010 days.

20Victim impact statements from Berryman and from Emily Roberts were read to the court on the plea.  They show that each of them remains deeply disturbed and fearful because of your bizarre and violent actions on this night.  Their lives have been affected in many adverse ways.  There was no victim impact statement from Gauci, but having regard to the injuries sustained and his account of what happened to him as set out in his statement that is in depositions,[2] I am in no doubt that he is in a similar position.

[2]Statement of Jason Gauci, Depositions 23 – 33

21You have admitted your extensive criminal history.

22Before a committal took place and after negotiations you indicated your intention to plead guilty in October 2020 and as such it is an early plea.

23After the matter had settled, an issue as to your fitness to be tried was properly raised, and in October last year, the question of your fitness to be tried was examined over two days. After evidence from psychiatrists and by reference to an enormous volume of medical material, on 8 December 2021, I ruled that you had not satisfied me that you were unfit to be tried within the meaning of s6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

24In the course of that hearing, evidence was given by two expert psychiatrists, each of whom had had extensive reference to clinical and prison records going back for some considerable period of time.

25Nathan Garth, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea hearing during which your counsel spoke to detailed written submissions dated 30 June 2022 – Exhibit 4.

26The matters raised in mitigation included the following:

27Your plea of guilty.  Whatever be the state of your recollection of the events of this night, you did indicate your intention to plead guilty at an early stage and as such it is an early plea.  Much of the delay since you indicated your intention to plead guilty was taken up by the fitness investigation, and then court delays occasioned by the Covid-19 pandemic.  In these times of pandemic, additional weight[3] in mitigation of penalty is to be given to such a plea and, of course, by your plea you have acknowledged responsibility for this offending, facilitated the course of justice and saved the witnesses the distress and the community the cost of a committal and of a trial.  You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.

[3]Worboyes v R [2021] VSCA 169 at [35], [39]: 'We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.' See also Chenhall v R [2021] VSCA 175.

28In the course of the plea, letters you had written to the victims were read.  In them, you expressed your remorse for your conduct and attempted to reassure them that they stood in no danger from you.

29Also tendered on the plea were two reports from Dr Adam Deacon, consultant psychiatrist, dated 22 June 2022 – Exhibit 5, and the supplementary report dated 20 July 2022 – Exhibit 6.

30Like many others before him, Dr Deacon regarded your psychiatric presentation as complex and canvassed a number of diagnoses that might be in play in his analysis and he analysed both the earlier medical and clinical material, and the reports that were in evidence during the fitness investigation.

31It was at once conceded that the offences against each of the complainants, especially Jason Gauci, were extremely serious.  I agree.  It was pointed out that the three complainants at the Roberts residence had also consumed alcohol and methamphetamine on that night, and so it was submitted that their recollection of, and understanding of, the motives for the offending may be impaired by this.  As to how it was that this mitigates your culpability for your actions on this night was not made clear, nor was any quarrel taken with the facts as recounted in Exhibit 1.

32It was pointed out that you were significantly intoxicated on this night, so much so that you were, hours later, assessed as unfit to be interviewed.

33It was submitted that the attack on Roberts and Gauci was founded upon delusional beliefs that they wanted to kill you, such beliefs triggered by your complex psychological disorders, exacerbated as they probably were by the consumption of alcohol and methamphetamine.  I am not completely persuaded of this.  The accepted opening clearly states that you had it in your mind that you wanted Emily Roberts for yourself and so a motivation for removing Gauci from the scene that is not wholly bizarre existed, as does a motivation for the clean-up operation that followed.  I do accept that the hijacking of Berryman and his car and what followed is more difficult to explain, although initially a trip to Spring Gully Road may have had some rational basis, perhaps to continue the clean-up, as that is where the clothing and knife had been earlier dumped, and it was conceded that getting away from the scene of the stabbing, thereby evading the police, was also operating on your mind – again, not a wholly delusional motivation for what followed.

34I do readily accept that taken as a whole this behaviour was bizarre, but I am not persuaded that it was entirely without motivations that were responsive to the situation and to the offending you had already carried out.

35That violent and irrational behaviour, driven partly by real and partly by imagined delusional beliefs and paranoia, followed what you described as “copious amounts of an assortment of drugs, mainly ICE'”,[4] is not unexpected, and should not have been unexpected by you, having regard to your extensive past criminal history, and history of substance abuse.[5]

[4]See reference to this in the first assessment in the Victorian system on 1 November 2019 - Director of Public Prosecutions v Garth (Ruling) [2021] VCC 1932, 3 [11].

[5]See R v Martin [2007] VSCA 291 and Sanyasi v The Queen [2019] VSCA 227

36I have taken into account your background and personal circumstances.  These are extensively canvassed in the psychiatric and psychological reports and the clinical records that were examined in the course of the fitness investigation, and summarised in Dr Deacon's reports that were tendered on this plea.

37You are an indigenous man born in Hobart where you grew up with your mother and stepfather.  Your biological father has not played a part in your upbringing and you have two half-siblings on his side of the family, though you have no contact with them.  Your mother was verbally aggressive and psychologically abusive towards you when you were in her care, and your stepfather was physically and sexually abusive of you.  You believe the stepfather is now deceased.  Both of the parents who brought you up were drug users.  Your schooling did not get past Year 7 or 8, and soon after, you began alcohol and drug consumption, which has led to offending and repeated periods in custody ever since.

38I was informed, as a rough estimate, that of the 10 years leading up to this offending, you had spent seven of them in custody, and had only been out of custody for a matter of weeks before these events took place.

39You have a son born to a brief relationship with Zoe Rainbird.  Your son, Elijah, is now in the care of your mother.  A persistent theme in your psychological histories has been a belief that in your mother’s care, your son is being sexually abused.

40I have taken into account your mental state.  This is an enormously complicated topic and a summary of your psychological presentations, diagnosis, treatment and history can be found in my ruling on the fitness investigation and the subject was revisited in the reports of Dr Deacon that I have already referred to.

41It is accepted that you suffer from ADHD, from an antisocial personality disorder and from a substance abuse disorder.  I am not in any doubt that these disorders in combination with the substances you consumed on the day of the offending played a significant part in what followed.  It is always difficult, and none of the clinicians really attempt to do this, to dissect out of a period of apparently irrational violent offending, the relative influences of underlying psychological conditions, and the ability of the consumption of methamphetamine to generate paranoid psychosis in the short term.  I accept that all these matters were having an influence on this day, but the fact remains that your response to methamphetamine use, and the behaviour that follows, has long been a feature of your criminal history and so must have been well known to you.  In all the circumstances, I have given modest weight to the first of Verdins principles.[6]

[6]R v Verdins & Ors [2007] VSCA 102 at [32]: “1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.” See also Brown v The Queen [2020] VSCA 212 at [6].

42It was submitted by reference to the principles enunciated in Bugmy,[7] and not in dispute on the plea, that having regard to the circumstances of your upbringing your moral culpability for this offending is moderated.

[7](2013) 249 CLR 571 at [42] – [44]

43Further, it was submitted that Verdins principles five and six had work to do here.  I accept that this is so, as the extensively documented engagement you have had with mental health clinicians whilst on remand makes clear, your mental state does make life in prison more burdensome for you, and carries the risk of causing deterioration.

44I have taken into account in mitigation the fact that for most of the time you have been on remand, conditions in our prison system have been harsh during the pandemic, with restrictions on exercise, programs, treatment and very frequent periods of lockdown, and of quarantine, with the effect that the time you have already spent and are likely to spend in custody is more burdensome for you.

45It was submitted and I accept that the principal of totality has application here, as all of the offences for which you are to be sentenced took place within a single episode and within a relatively short space of time.

46Against the matters to be taken into account in mitigation of penalty must be balanced the fact that this was a wholly unprovoked attack upon the safety and security of the Roberts, upon the person of Gauci, and upon the freedom of movement of Berryman.  This single episode of offending has no doubt caused significant psychological disquiet to the victims which persists.  The savagery of the knife attack on Gauci in particular is very concerning.  In all the circumstances, I am called upon by the Sentencing Act1991 to give weight to both general and specific deterrence, to manifest the community’s denunciation of this outrageous conduct and to otherwise impose just punishment.  Having regard to your history, protection of the community from you must also be considered.

47Nathan Garth, I state to you that I have taken into account all the matters raised in mitigation of penalty on your behalf in the course of the plea and all other relevant facts and sentencing principles in arriving at the sentence I am about to impose.

48On Charge 1 of recklessly causing serious injury, you are convicted and sentenced to a term of imprisonment of five years.

49On Charge 2, the threat to inflict serious injury, you are sentenced to a term of imprisonment of one year.

50On Charge, 3, false imprisonment, you are sentenced to a term of imprisonment of one year.

51On Charge 4, kidnapping, you are sentenced to a term of imprisonment of three years.

52On Summary Charge 5, assault, you are convicted and sentenced to a term of imprisonment of one month.

53And on Summary Charge 7, assault, you are convicted and sentenced to a term of imprisonment of one month.

54I direct that six months of the sentence imposed upon Charge 2, three months of the sentence imposed upon Charge 3 and one year of the sentence imposed upon Charge 4 be served cumulatively upon each other and upon the sentence imposed upon Charge 1, making a total effective sentence of six years and nine months.

55The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist and for that reason, it is not fixed automatically.  All relevant factors and sentencing principles are to be taken into account and I have to consider when you should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision.  In all the circumstances, I direct that you serve a minimum term of four years and six months before becoming eligible for parole.

56As prescribed by s18(4) of the Sentencing Act 1991, I declare that the period of time you have spent in custody is 1,010 days, which is to be reckoned as time already served under this sentence and I direct that this fact be entered in the records of the Court.

57Pursuant to s6AAA of the Sentencing Act 1991, I state that had you been found guilty of these offences after a trial I would have sentenced you to a term of imprisonment of nine years with a non-parole period of seven years.

58Are there any other orders to be made?

59MR DEVLIN:  Yes, Your Honour.  There is a disposal order in relation to the knives and I think the clothing.

60HIS HONOUR:  Yes.

61MR DEVLIN:  I must apologise, I have not got a solicitor today.  I am not sure - - -

62HIS HONOUR:  I found them.  It is all right.  I will interrupt you there.  I found them.

63MR DEVLIN:  Thank you.

64HIS HONOUR:  So there is a disposal order that deals with knives basically.

65ACCUSED:  Can I please - sorry to interrupt.

66MR DEVLIN:  Yes, Your Honour.  So that is the only ancillary order that I request, Your Honour.

67HIS HONOUR:  Is that opposed?

68MR BOE:  Unopposed.  Thank you, Your Honour.

69MR DEVLIN:  I did not believe it was opposed at the last hearing.

70HIS HONOUR:  I will make that order.

71ACCUSED:  Excuse me, Your Honour.  Can I please ask one thing?  I just - I didn't quite understand.  So what's the actual sentence?  I'm really sorry about this but I'm not good - - -

72HIS HONOUR:  No, no, that is all right.  It is important that you understand it.  So you have been sentenced to a total effective sentence of six years and nine months; the non-parole period is four years and six months.

73ACCUSED:  So how long have I got to go for parole?

74HIS HONOUR:  You have got to serve four years and six months and I have declared that you have spent 1,010 days in custody.  When I leave the Bench, I will leave the link up and Mr Saoud can answer any more questions that you might have.

75ACCUSED:  Thank you very much, Your Honour.

76HIS HONOUR:  Would you adjourn the court please?

- - -

Charge	Offence	Maximum	Sentence	Cumulation
Indictment No. K12829022
1	Recklessly Cause Serious Injury Stabbing Jason GAUCI to the upper body. [Crimes Act 1958, s 17] 30/10/2019	15 years’ imprisonment	5 years	base
2	Threat to Inflict Serious Injury Threatening to stab Ricky ROBERTS. [Crimes Act 1958, s 21] 30/10/2019	5 years’ imprisonment	1 year	6 months
3	False Imprisonment (Common Law) Confinement and Supervision of Emily ROBERTS 30/10/2019	10 years’ imprisonment	1	3 months
4	Kidnapping (Common Law) Shaun BERRYMAN feared for his life and believed stab threat would be carried out.  30/10/2019	25 years’ imprisonment	3	1 year
Summary Charge 5	Assault Punching Ricky ROBERTS twice to the head. [Summary Offences Act 1966, s 23] 30/10/2019	3 months’ imprisonment or 15 Penalty Units	1 month	nil
Summary Charge 7	Assault Confinement and Supervision of Emily ROBERTS. [Summary Offences Act 1966, s 23] 30/10/2019	3 months’ imprisonment or 15 Penalty Units	1 month	nil
Total effective sentence (State):		6 years and 9 months
Pre-sentence detention:
Non-parole period:		4 years and 6 months
Other relevant orders: