Director of Public Prosecutions v Gaskell

[2020] VCC 978

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02541

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM GASKELL

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2020
DATE OF SENTENCE:	1 July 2020
CASE MAY BE CITED AS:	DPP v Gaskell
MEDIUM NEUTRAL CITATION:	[2020] VCC 978

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	OPP
For the Accused	Mr A. Maloney	Victorian Legal Aid

HIS HONOUR:

1Adam Richard Gaskell, you have pleaded guilty to one charge of intentionally causing serious injury, contrary to s.16 of the Crimes Act 1958. The maximum penalty for that offence is 20 years imprisonment.

2You have also pleaded guilty to four related summary offences namely:

3Unlawful assault contrary to s.23 of the Summary Offences Act 1966. The maximum penalty of that offence is 3 months imprisonment, or a fine of 15 penalty units;

4Contravening a personal safety intervention order contrary to s.100(2) of the Personal Safety Intervention Orders Act 2010. The maximum penalty for that offence is 2 years imprisonment, or a fine of 240 penalty units;

5Committing an indictable offence on bail contrary to s.30B of the Bail Act 1977. The maximum penalty for that offence is 3 months imprisonment or a fine of 30 penalty units;

6Failing to appear on bail contrary to s.30(1) of the Bail Act 1977. The maximum penalty for that offence is 2 years imprisonment.

7You pleaded guilty at committal proceedings and the matter proceeded by way of hand-up brief.  I have taken your early plea into account in your favour, in mitigation of sentence and I accept that it is some evidence of remorse in your case.

8You have admitted an extensive criminal history, dating to 1994.  You have multiple convictions for offences of violence and have served terms of imprisonment for those offences.  Community-based dispositions intended to support your rehabilitation and deter you from re offending have to date been unsuccessful.

9An agreed Prosecution Opening was tendered in evidence and your offending may be summarised as follows - 

10On 21 June 2019, you were residing in premises located in Frankston South with a friend, Antonio Catena and James Sheehey, who was not well-known to you.  Sheehey resided at the house with his two year old son.  The house was owned by Catena.  You were residing there on a short-term basis, as you had recently become homeless.

11At approximately 8.30 pm on that day, you returned to the house intoxicated, after spending the afternoon consuming alcohol.  You entered the house in a disruptive way and were confronted by Catena, who asked you if you were all right.  In response, you grabbed him and began wrestling.  Sheehey came to his aid and punched you in an effort to stop you assaulting Catena.

12The fight was broken up and when Sheehey was filling a bottle with water for his son, you approached him from behind in the kitchen armed with a golf club.  You struck him forcefully to the head, causing the club to break in two.  Sheehey fell to the floor unconscious.  A further fight then broke out between you and Catena, before he rang the police, and you left the house.

13An ambulance arrived and Sheehey was conveyed to Dandenong Hospital with life-threatening injuries.  He was treated for a fractured skull with bleeding on the brain and a fracture to his right frontal sinus bone and zygoma.  A metal plate was inserted into his skull to protect the fractures he had suffered.

14I have received in evidence the Victim Impact Statement of Sheehey, detailing the deeply traumatic effect your offending had on him.  He continues to suffer from chronic headaches and has become socially withdrawn.  He has lost a number of his teeth as a result of his facial fractures. 

15I have also received in evidence, a victim impact statement of Catena, who details the traumatic impact your offending had on him and his sense of wellbeing and personal security in his own home.

16Your offending in relation to Sheehey is, in my opinion, a serious example of the serious offence you have pleaded guilty to.  In a drunken rage, you struck a defenceless person from behind with a weapon to his head.  Your offending had the potential to kill your victim.

17The sentence I impose must be calculated to deter others from offending in this manner and the community protected from senseless violence such as this.  It is plain from your criminal history that you are a violent man.  In my opinion, specific deterrence is an important sentencing consideration in your case.  You must also be punished for your cowardly act of drunken violence.

18I now turn to your personal circumstances.  You were born in Melbourne on
11 February 1969 and are now aged 51.  You grew up in the Bayside suburbs of Melbourne and educated to Year 10 level after being expelled from a number of schools, due to misbehaviour.  You have two sisters and the support of your younger sister, who provided a reference to the court detailing her ongoing support for you and matters personal to you.

19Your mother died in a horse-riding accident in South Africa in 1990 when you were aged 21, and I accept that this event had a destabilising effect on you, leading to your hospitalisation for mental health issues, including suicidal ideation.  Your work history was adversely affected by a serious back injury you suffered playing football in your early 20s and you have not worked since.

20You are in receipt of a disability support pension and require ongoing medication for back pain.  You have never been married and have no children but have been in a relationship with your current partner for three and a half years and will reside with her on your release from prison.

21I have received in evidence a psychiatric report of Dr Nina Zimmerman, a forensic psychiatrist setting out your psychiatric history and background.  I accept that you suffer from chronic pain disorder, and underlying mood instability.  Dr Zimmerman concludes that you have a long-standing history of expressions of anger and no doubt that contributed to your offending in this instance.  But I do not accept, that there is a realistic connection between the mental illnesses that Dr Zimmerman identifies that you suffer from and your offending in this instance.

22On 1 January 2020, whilst in custody in Fulham Prison, on remand for these offences, you were stabbed repeatedly and punched by another prisoner.  You suffered 16 stab wounds that required surgical repair at the Royal Melbourne Hospital.  You were thereafter transferred to Port Phillip Prison Hospital from Fulham Prison following your surgery, and received further treatment for your injuries.

23In her report, Dr Zimmerman further concludes that you are now suffering from post-traumatic stress disorder, as a result of the stabbing.  I accept that this has significantly increased the hardship of imprisonment upon you.  You have developed anxiety and depression and suffer from fearfulness and nightmares.  You are also rightly concerned for your safety in the prison system by reason of the prosecution of the prisoner who stabbed you.

24I have received in evidence an affidavit of Jennifer Hosking, Acting Assistant Commissioner of Corrections Victoria, setting out the circumstances of the attack upon you, and your movements in the prison system.  The affidavit notes that you have a significant ongoing psychiatric condition, requiring regular monitored psychiatric treatment.  The affidavit also refers to the restrictions in place in the prison system in response to the COVID-19 pandemic.

25I have also been provided with the sentencing remarks and brief of evidence in the matter of Brett Dodd, the prisoner who stabbed you.  He pleaded guilty to a charge of intentionally causing injury and was sentenced to nine months imprisonment, cumulative on the sentence that he was then undergoing at the La Trobe Valley Magistrates' Court on 20 May 2020.

26You made a sworn statement to police in relation to the incident and thereby cooperated in the investigation and prosecution of Dodd.  I have taken this fact into account in your favour in mitigation of the sentence I would otherwise have imposed, and I accept, that as a prosecution witness, in such a case, you are at risk of further assaults in the prison system.

27I also accept that your mental health is compounded by the impact of imprisonment upon you and the hardship of imprisonment on you is greater for that reason.  Also, by reason of the COVID-19 restrictions, and in particular, the fact that your partner is not able to visit you the hardship of imprisonment is increased in your case.

28I have also received in evidence your medical records, kept by the South End Medical Centre, detailing the physical conditions that you suffer from and the medications that you require.  I accept that you have a history of heart disease, requiring surgery and the hardship of your imprisonment, will also be compounded by this and your ongoing back pain.

29You were arrested on 11 July 2019 at the Frankston Magistrates' Court after you attended there, in relation to other proceedings for which you were bailed to appear at that court on 3 July 2019.  Following your arrest on 11 July 2019, you were interviewed by investigating police, in relation to these offences, and made admissions to your assault of Sheehey.  You were then remanded in custody.

30On 4 October 2019, the charges to be heard at Frankston Magistrates Court were dealt with and you were sentenced to six months imprisonment with 85 days of pre-sentence detention declared.  I have had regard to this period of imprisonment, served by you, for reasons of totality in arriving at the appropriate proportionate sentence to be imposed in this case.

31Whilst it is clear that there are a number of significant matters in mitigation that are applicable to you, I am nevertheless satisfied that a significant term of imprisonment is appropriate in the circumstances of this serious case.

32Furthermore, you fall to be sentenced as a serious violent offender, and the principal purpose for which this sentence is to be imposed, is the protection of the community.

33The prosecution do not submit that it is appropriate for me to impose a disproportionate sentence and I have not done so.

34The sentence I impose on Charge 1 will also be served cumulatively on the sentence I impose on the related summary offences that you have pleaded guilty to. 

35In the result, the sentence of the court is as follows -

36On the charge of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for four years and three months.

37In relation to the related summary offences you have pleaded guilty to, you are convicted and sentenced to the aggregate sentence of three months imprisonment.

38The sentence I have imposed on Charge 1 will be served cumulatively on the sentence imposed on the related summary offences.

39This makes for a total effective term of imprisonment of four years and six months.

40I direct that you serve two years imprisonment, before becoming eligible for release on parole. 

41I declare that you have served 212 days by way of pre-sentence detention, not including today.

42But for your plea of guilty, I would have imposed a total effective term of imprisonment of six years and fixed a non-parole period of three years and six months.

43The fact that you have been sentenced as a serious violent offender will be entered in the records of the court.

44I have made or will make the disposal orders sought by the prosecution.

45Are there any further orders required?

46MR HARRISON:  No, Your Honour.

47HIS HONOUR:  No further orders, all right.  Yes, thank you.

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