Director of Public Prosecutions v Hart

[2019] VCC 879

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00134

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANNE MARIE HART

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 June 2019
CASE MAY BE CITED AS:	DPP v Hart
MEDIUM NEUTRAL CITATION:	[2019] VCC 879

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.D. Singh
For the Accused	Mr J. Lavery

HER HONOUR: 

1Anne Marie Hart, you have pleaded guilty to charges which are contained on two indictments.  On Indictment No.H11371899.1, which I will refer to as Indictment 1, you pleaded guilty to one charge of intentionally causing serious injury, one charge of theft and a summary charge of assault with a weapon, which was uplifted for hearing pursuant to the Criminal Procedure Act.  Under Indictment J12379718, which I will refer to as Indictment 2, you pleaded to one charge of intentionally causing serious injury in circumstances of gross violence and one charge of armed robbery. 

2The facts underlying your offending are as follows.  In relation to Indictment 1, at the time you were aged 18.  The offending was committed with two other young women, Evie Coburn[1] and Claire Tate[2].  They were subsequently dealt with in the Children's Court.  On 4 May 2017 the complainant Nicholas Rhodes arrived by train at the Richmond railway station with a friend, at which time he was carrying his laptop computer in a bag.  They met with another friend at the Flinders Street railway station stairs and the three of them walked down the stairs and along the Yarra River.

[1] This is a pseudonym name.

[2] This is a pseudonym name.

3Just before reaching Princes Bridge they heard females shouting at them but could not make out what was being said.  Rhodes turned around and saw three girls all wearing large clothing and he and his two friends continued walking.  As they did so they heard more shouting and noticed it was getting louder.  Soon the girls appeared right behind them.  At this point the three men had reached the front of Pilgrim Bar.

4The leading female, you, had brown-orange hair; all three women wore backpacks.  You were shouting at Rhodes whilst coming towards him with one hand in the pocket of the hoodie that you were wearing.  You were swearing and aggressive, and stood right in front of Rhodes with the other two females standing just behind.  You were about a metre away.  You started waving a blue object that Mr Rhodes initially thought was a pen but then saw was the flashing of a blade and realised you were swinging a knife with a blue handle.

5You swung continuously at Rhodes' head and he stepped back to avoid it.  He believed he was going to be stabbed as you continued to come towards him, so he weaved around all three of you and started running back towards a set of stairs.  On arrival he discovered that the three of you were no longer following him but were carrying his laptop bag, which he believed he must have dropped whilst weaving.  You shouted to your friends that the females had your laptop bag and then walked with your friends towards you whilst the three of you walked off. 

6He filmed them as they kept walking and one of the females then threw the laptop bag overhead which then hit the ground, and continued walking away and you followed still filming.  This all occurred at about three or four in the afternoon of May 2017.  Those actions by you underline the summary charge accompanying Indictment 1, assault with a weapon.

7The remaining two charges on the indictment relate to further offending by you later on that same day.  At about 6.30 pm your co-accused Evie Coburn met up with a victim in this matter, Augustine Nyako, who had been communicating with her as a result of meeting her on Tinder.  He did not know her name and he had not met her before, but Evie Coburn had sent him her mobile number and they communicated via SMS.  At the time Mr Nyako was 27 years old.

8At about 6.30 on 4 May, Ms Coburn sent Mr Nyako a text arranging to meet him at her address at 149 Highett Street, which was supported housing for young people, where she was then residing.  He drove there in his aunt's blue VW Golf, arriving at about 8.10 pm.  Evie Coburn greeted him at that address and showed him through the backyard and, whilst at Highett Street, introduced him to another co-offender, Claire Tate, with whom of course you had previously been earlier in the day.

9Ms Coburn asked Mr Nyako to buy her some cigarettes and the two of them drove to a service station in Bridge Road, where he bought cigarettes and a lighter before returning to the Highett Street address.  On return the two of them were denied access to the premises by the supervisor of the residence because there were already too many people inside.  You then left the house and were seen by Mr Nyako making phone calls.

10Ms Coburn asked Mr Nyako to drive her to St Kilda, but he refused, then she walked over to you and the two of you whispered together.  You then asked Ms Coburn where the car was and she pointed to it.  Ms Coburn asked if Ms Tate could be driven by Mr Nyako to Sunshine and Mr Nyako said he would take you to the Sunshine railway station.  He then got into the car, Ms Coburn got in the front passenger seat, Ms Tate sat in the back seat behind the front passenger and you sat in the back seat directly behind Mr Nyako.

11On arrival at the Sunshine railway station you told Mr Nyako that your aunt lived in Sunshine and began directing him away from the station.  At this point Ms Tate started pretending to be ill and Mr Nyako pulled over and switched off the engine.  Ms Coburn unlocked her seatbelt and turned around and suddenly Mr Nyako was stabbed to the right side of his neck from behind by you.  You stabbed him again to his forehead.  Ms Coburn and Ms Tate apparently each pulled out knives and started to stab Mr Nyako in the arm while he attempted to protect himself.

12He unlocked his seatbelt but heard you say he should not be allowed to leave the car.  He was able to get out of the car and ran away, leaving his mobile phone.  He returned shorty after to try and get his car keys and as he reached in one of the girls from the back seat slashed his right arm.  He heard you telling the others not to let him take the keys and could see Coburn getting out of the car.  He then ran away, knocking on people's doors, asking for help but without success, then collapsed but was attended to by ambulance officers and police.

13This was at about 10 o'clock at night.  On arrival police saw that Mr Nyako was covered in blood, extremely distressed and appeared to be in severe pain.  He was taken to Sunshine Hospital and the next day transported to the Royal Melbourne Hospital.  Police found the abandoned Golf at about 10.46 that night in Sunshine North.  They discovered a knife.  Swabs were taken from it for DNA which was obtained from the blood on the knife and the handle of the knife.  It simply showed that the blood was overwhelmingly likely to be that of Mr Nyako's.

14On 5 May 2017 police spoke to the supervisor at the Highett Street address and showed him photographs of CCTV footage captured near Flinders Street on 4 May.  He identified you and your two co-accused.  On 17 May 2017 police executed a search warrant at your residential premises in Seaford, where items were found linking you to the offences that occurred on both occasions on 17 May.

15Initially Mr Nyako was found to have suffered a wound in the sternum, that is on the breastbone; a deep, ragged wound on his right elbow; several wounds on the left forearm; and a deep wound to the base of his right-middle finger; multiple stab wounds, two to the left of his forehead, which were stitched, and a third under his hair; and a long wound to the neck extending right from the front to the back; and cutting into superficial facia and muscle and a possible piece of knife blade embedded in the skull.

16The diagnosis was one of multiple lacerations to the head, the back of the neck, upper limbs and a possible metallic foreign body lodged in the skull.  Mr Nyako was treated for his wounds, which included suturing and ultimately a skin graft to one of the wounds.  It was clearly an incredibly savage attack.

17This matter was ultimately dealt with after a committal was held on 19 January.  A defence plea offer was made on 6 June 2018 after a final directions hearing.  Both Coburn and Tate pleaded guilty in relation to these matters, which were finalised in the Children's Court.  Mr Nyako made a victim impact statement to which I will now refer.

18In that statement he said he had nerve damage to the forearm of the left hand, visible scarring on his face and was required to have medical check-ups to monitor the metal piece in his scar.  He required physiotherapy to assist with the nerve damage done to his left hand.  The long-term impact has been that he is unable to effectively use his hand for physical activity at the gym and any heavy lifting.

19Under the heading 'How the injuries affected my life', he said he was unable to fully undertake physical activities, that he had had pride in keeping physically fit but could no longer to go undertake the regular gym routine that he had.  He spent all his savings to pay for medical treatment.  He suffered, as I have said, continued physical incapacitation due to the injuries to his arm.  He was not able to undertake the warehousing job he had before this incident.  He had to forego a second cleaning job that he had.

20He has also had to undergo psychological treatment for ongoing stress and anxiety.  He was unable to continue with his studies at that time.  Due to the incident there was inaccurate social media reporting in his own country and he suffered a lot of humiliation and was unable to attend social events within his Ghanaian and African community ever since.  He said due to the scars on his face and around the neck and on his head and his forearm, he lost confidence in himself and his appearance -

'In order to freely mingle with my peers and other people, especially the opposite sex.  The occurrence of the incident has impaired my trust in people and to interact freely with them, especially those I am not familiar with'.

21He has lost confidence in his life; he is more fearful.  He said that before the incident he was very sociable and outgoing and keen to learn about people from different cultures.  He said since the incident he has become socially withdrawn and unable to trust people.  It goes on; he has suffered emotional and physical damage, his life has been deeply affected in a completely adverse way.  Unsurprisingly as a result of this terrible physical attack his life has simply been upended and he struggles with the effects of your attack upon him to this day.

22I should say that the attack you unleashed upon him underlies the charge of intentionally causing serious injury and the theft of Mr Nyako's aunt's car underlies that Charge 2 on Indictment 1.  I now turn to the facts scenario underlying the Indictment 2.

23This offending occurred in 2016 at which time you were 17 years of age.  At about 1.40 am on 21 December 2016 the complainant in this matter, Soo Lin Chen, had finished her work and was riding her bike home to her address in North Melbourne.  She was wearing a backpack on her back which contained her wallet, personal cards and about $200 in it.

24At about 2.23 am she was riding her bike along Haines Street, North Melbourne and turned into Molesworth Street.  As she was riding on the footpath she saw you and two other men walking on the road.  She said you looked older than both men.  She said that as she rode her bike past the three of you she heard one of the men calling out to her saying, 'Excuse me', twice.   She ignored him and kept riding.  Then she heard you call out.  You called out, 'Excuse me', twice.  Ms Chen thought that the three of you were lost and stopped her bike to see if she could help you.

25You approached Ms Chen's left side, walked in front of her and then grabbed her in a headlock with your left arm and began stabbing her in the face with a serrated fishing knife.  You stabbed her multiple times to the face, neck and chest area.  These actions underly Charge 1 on Indictment 2, causing serious injury intentionally in circumstances of gross violence.

26One of the men then asked Ms Chen, 'Where is the money?'  The second male said, 'Just take the bag'.  Ms Chen let her bike fall to the ground as she was being stabbed.  One of the men grabbed her backpack from her back, at which time Ms Chen felt blood flowing from the lacerations to her face.  She saw blood on her clothes and on the ground.  She felt that her face and mouth were badly cut.  She then fell to the ground and the the three of you all then left the area.

27During the incident she lost her iPhone and $200 in notes and coins that she had in a money bag for her boss.  These actions in stealing underlie Charge 2 on the indictment, armed robbery.  Amazingly Ms Chen was able to ride her bicycle home to get help.  She could not wake anyone, she eventually had to wave down a passing car.  Police arrived.  She was taken to hospital by ambulance - police saw a large pool of blood in the area where she had been stabbed. 

28The injuries sustained by Ms Chen include a full-thickness, deep-penetrating open wound extending down the jawbone in the front from her lower lip to her neck.  She had a 4 centimetre open wound below the right ear, reaching into the back of her neck.  She had an open wound in the front of her right ear.  She had multiple wounds behind her right ear.  She had a deep laceration, that is a deep cut, to the back of her right forearm, a slash to her right wrist, three open wounds to her right-upper arm close to the shoulder, a 4 centimetre deep wound to the front of the upper-right chest near the collarbone.

29She had an open wound in her right shoulder and shoulder blade area; bleeding and blood collection in soft tissue around her right eye; a laceration to the right eye, that is a corneal laceration; a globe rupture of the right eye; fluid accumulation to the right cornea; and nerve injury with complete severing of the nerve providing sensory innervation for the skin around the outer ear and bruising to the brain, really terrible, serious injuries.

30She required emergency specialist eye surgery under general anaesthetic to repair her eye globe and cornea; emergency plastic surgery with open wounds, exploration, wash-out and repair by stitching; nerve repair and reconnection by stitching; and medications involving what are called potent - that is very heavy - painkillers, antibiotics, eye drops, anaesthetics, drugs against nausea, vomiting and blood clot, and a tetanus injection.  She has ongoing medical issues pertaining to the damage to her right eye and physical scarring that I will refer to in the victim impact statement shortly.

31This matter was not ultimately linked to you as being the offender for a couple of years.  At about 4.20 am on the night of the offending, police attended a Coles Express service station in relation to two men who were reported as loitering in the area.  They saw you standing in front of the service station and you fled.  They caught up with you and asked you for your details, which you provided.  You were wearing clothing similar to that described by Ms Chen at the time of the offending.

32They saw that you had bloodshot eyes and dilated pupils and believed that you were drug-affected.  They conducted a search of you and found the small fishing knife with a serrated blade in your bra and police asked you why you were in possession of the knife and you said it was for self-defence.  The knife was seized, you received a penalty notice and you were allowed to leave.

33When Ms Chen was discharged from hospital she attended the Victoria Police Crime Identification Unit and compiled an FACE image of the accused, that is a photofit image.  On 9 January 2018 Detective Senior Constable Todd Greaney was reviewing the armed robbery that occurred in North Melbourne on 21 December 2016, looked at the FACE image described by Ms Chen and almost immediately recognised it as you.  Forensic analysis was conducted on the backpack strap which was located at the scene of the attack upon Ms Chen and DNA analysis revealed that it was overwhelmingly likely your DNA on that bag strap.

34Police attended the Dame Phyllis Frost Centre on 13 July 2018, where you had been remanded in custody following your arrest for the offending in 2017.  You initially provided no comment answers to the allegations but were then presented with photographs of Ms Chen's injuries.  At this time you became upset and began to cry and then conducted an entirely cooperative record of interview.  You told police you were drunk, 'I was off my face'.  You described what you did. 

35You said that you were fighting voices about whether to do it, you described yourself as a bad person.  You said that you stabbed her, that, 'I just have nightmares about it because I know what I've done'.  You said that you were sorry.

36Ms Chen filed a most distressing victim impact statement.  She said that she continues to worry about her right eye.  She has a risk of blindness.  She wanted chiefly to return back home to China.  She said she was an international student in Australia.  She had to pay for tuition, rent and living expenses, but she could no longer work in her part-time job.  She said obviously these problems caused her great upset and depression.

37She had to attend hospital every day after she was released.  She said that she has had problems with balance as a result of the injuries.  Her chin needed plastic surgery and insurance did not pay for this, she had to pay $800 for this.  She had to undergo psychotherapy, but it took six months for her to be able to undertake that.  Unsurprisingly as a result of these attacks she became afraid to live in Melbourne.  She decided to buy a ticket and return to her country.

38She was, unfortunately for her, too injured to do this immediately.  She wrote:

'I was in sorrow.  My original plan was to live in this beautiful city.  I dreamed that I can have a good job, a nice man, a sweet home in here, but my dream was destroyed by that accident.  After discharge from hospital one time I went to city to buy food, I was trembling 'cause I just saw a black woman walk to me.  Even that person was a student, I still felt afraid.  I just wanted to go home asap'.

39Again this was a terribly savage attack.  You inflicted appalling injuries upon Ms Chen and no doubt they affect her to this day. 

40I now turn to your personal circumstances.  You are now 20 years of age.  You are the eldest of four children born to your parents.  You were born in New Zealand.  Your parents were very young when they had you and it appears that some years elapsed before your younger siblings were born, your younger brothers are aged 14 and 15 and your sister aged eight.  Your parents brought you to Australia when you were seven.  Your mother suffered from alcohol and drug problems and depression and she and your father drank heavily.

41Tragically for you as a child in New Zealand you were sexually abused by three maternal uncles.  One of those uncles eventually moved to Australia and lived with your family and continued to sexually abuse you.  You tried to tell your mother of the abuse, but she, at that stage, simply could not take it in.  Finally when you were 11 you absconded from home and on your return disclosed what had occurred and were taken seriously.  Police were called in and the Department of Human Services became involved in your family.  Eventually you dropped the charges because you felt guilty about charging a family member. 

42It appears from this time your parents became more attentive, but I accept, given your history, that this was a little late for you.  Even though you had disclosed the offending about your uncle, it would appear from what you told both psychiatrist Dr Jacqueline Rakov, whose report dated 19 March 2019 was tendered on the plea, and psychologist Carla Ferrari, whose report dated November 2018 also tendered on the plea, that your uncle, who was not much older than you, was continually in the family home and indeed attended the same school as you.

43You continually absconded from home and by the age of 14 left home altogether and began living for a period of two years in a de facto relationship with a 21-year-old man who continually abused you both emotionally and physically. 

44From age 12 you began to use alcohol excessively, telling your assessors that you got alcohol whenever you could and wherever you could simply to numb the pain.  In any event the relationship with this man was extremely abusive.  He was controlling of you, isolated you, tried to keep you from attending school, forbade you from drinking alcohol and instead replaced it with methamphetamines.  Methamphetamines and alcohol have remained a big problem for you ever since.  Ultimately the relationship ended because he went to gaol.  You returned home to live with your parents for two years. 

45You appear to be a young woman of reasonable intelligence.  You continued at school, but I am satisfied that great psychological damage had been done to you and indeed it was the opinion of both Ms Ferrari and Dr Jacqueline Rakov that you suffer a Post-Traumatic Stress Disorder and suffered from a Major Depressive Order for many years.

46The drinking and use of methamphetamines did not cease.  You went on to commit further offending.  Before appearing before this court you have always been dealt with by way of the Children's Court.  On 19 December 2013 you were dealt with for theft of motor vehicle, unlawful assault and stating a false name.  You were placed on an adjournment to be of good behaviour.  On 13 May 2015 you were dealt with for shoplifting and were placed on a good behaviour bond.

47On 2 February 2016, however, you were dealt with for extremely serious offending.  This was a charge of intentionally causing serious injury in a situation of gross violence.  The offending occurred on 5 June 2016.  You were at that stage attending TAFE.  I was given a summary of the offending that you engaged in.  You were walking with two classmates, one of whom was a girl, when suddenly you turned and stabbed this young woman in the neck.  She fell to the ground, you stabbed her again repeatedly in the throat and neck and then absconded.

48Your victim was airlifted to hospital with life-threatening injuries.  You confessed what you had done in a record of interview on 9 June 2015 after your arrest.  You said to police that at the time you felt a rush of adrenaline.  You said the victim had done nothing, that you were hearing voices that told you to harm someone, that you were in great emotional distress and that you harmed this young person in order to relieve that distress.  You were placed in a youth justice centre for a period of 22 months as a result of that offending. 

49On 10 November 2016 you were dealt with for unlawful assault, which involved an attack on another inmate at the youth justice centre, and on 3 March 2017 you were dealt with for theft of a motor vehicle.  You were in company with two other girls, one of whom crawled through a doggy door in order to steal keys from inside a house and the car was then stolen.  That deals with your offending history.

50As I have said, you began drinking when you were 12 and you were introduced to methamphetamine from about the age of 14 by your controlling partner.  It would appear from what you have said that it is at the time you unleashed the terrible attack upon this gent you were heavily intoxicated.  It would appear that in 2017 when you unleashed the terrible attack on Mr Nyako you were heavily under the influence of methamphetamines.

51You told psychologist Carla Ferrari that at the time of the 2017 offending you were feeling lonely and depressed.  When you were released from custody you were not allowed to return to live with your family, even though they had been much more supportive of you, because of Department of Human Services' fears about the threat you might pose to your family and to your younger siblings.  You were therefore placed in a community residential unit.  There you enjoyed a measure of support until your parole ended.

52At the time that you were released from custody you were also on a regime of medication for your mental health difficulties, which included antipsychotic medication.  That medication was extremely important not just in terms of your drug use but particularly in terms of your diagnosed Borderline Personality Disorder.  It is quite clear from the material in front of me that firstly when you use methamphetamine you experience auditory hallucinations and paranoia but that also you appear to suffer, as sometimes persons do who have Borderline Personality Disorder, auditory hallucinations, voices telling you to harm someone.

53That is not necessarily a feature of schizophrenia, it can also be a feature of Borderline Personality Disorder.  Antipsychotic medication is extremely important in controlling this.  Unfortunately, as I have said, the fairly intensive support offered to you by Youth Justice fell away after your parole ended.  You were then living in accommodation which was no longer particularly supportive and it would appear you stopped taking your medication.  It was in that context that the terrible offending that I have described in relation to Mr Nyako took place.

54At the time of the plea I received the report from Ms Ferrari, but it seemed to me important that there be a psychiatric as well as a psychological assessment.  The opinion of Ms Ferrari was that you suffer from Post-Traumatic Stress Disorder and a Borderline Personality Disorder as well as a major depressive disorder that I have discussed.  Those diagnoses were confirmed by Dr Jacqueline Rakov.

55Can I say, Ms Hart, and this is really important, that I have described your offending as savage and terrible, but I also recognise that your life from a very early age, from the time you were a very little girl, has been one involving terrible abuse.  That is by no means an excuse for what you have done, but it is an explanation and it is something that I must take into account in sentencing you.

56It appears that whilst in custody you have progressed very well.  Ms Ferrari at the time of her report was concerned that you were a young person in custody with much more mature, serious offenders and she was concerned about this effect upon you.  At the time that she saw you she noted that you had now identified as bisexual and you were involved in a relationship with another prisoner who was also, however, highly abusive of you, particularly emotionally.

57She was concerned that you had yet again placed yourself in an abusive relationship; however, by the time Dr Jacqueline Rakov saw you in March of this year, that relationship had ended because that person had been released from prison.  Her report was that even though at times you were very down, and she noted that you expressed to her strong thoughts of self-loathing in terms of what you had done, that generally you appeared to be coping well in the more structured environment of prison.  Certainly you had undertaken something in the region of 13 or 14 programs offered by the gaol.

58You attend Narcotics Anonymous and Alcoholics Anonymous, you have undergone urinalysis on a regular basis, all of them proving negative for drug use, and you were working sewing prison uniforms for men.  The report by Dr Ferrari was that you enjoy work, often work overtime and have a good relationship with your boss.  It is your hope when you are released from prison to go into fashion design.  I am satisfied that you have progressed very well within the gaol environment.  You also receive one-on-one therapy and you are on a medication regime comprising an antipsychotic, which attends also to mood disorder and your bipolar disorder features. 

59It is clear that on release you will face possible deportation to New Zealand.  Dr Ferrari notes that this weighs heavily upon you.  You are a permanent resident, not a citizen.  You enjoy regular telephone contact with your family and they visit you once a month.  Your nuclear family is central to you, you have virtually no supports in New Zealand.  Dr Ferrari reports that your only memories of New Zealand are traumatic ones which is hardly surprisingly.  She believes that were you to be deported to New Zealand the mental health difficulties that you suffer from would be re-enlivened and you would be likely to present as a danger for reoffending.

60The fact that deportation is a possible outcome of this offending is a matter that I must take into account in sentencing you in that, as I have said, the material shows it weighs heavily upon you and would make service of your term of imprisonment that I must impose upon you more difficult.  I am satisfied, although it may be of small comfort to your victims, that you are sincerely remorseful for your offending.  Both Dr Jacqueline Rakov and Ms Ferrari noted that you express what they regarded as sincere expressions of remorse for your offending accompanied by much criticism of yourself and your behaviours. 

61As I have said, both of them said that you expressed yourself in terms of self-loathing, saying that you were a bad person, in other words, for what you had done.  Interestingly also, and importantly, it was Dr Rakov's view that you had gained considerable insight not just about your offending but about the mental health conditions that you have.  She wrote:

'It appears Ms Hart in the presumably substance-free environment of custody [well, I do not know that that is necessarily the case, but I am satisfied that you are not using drugs in custody] has learned through psychological treatment a good grasp of her interpersonal conflicts, identity disturbance, mood swings, anger/self-harm behaviours and detrimental relationships.  She also has had insight into her enduring feelings of childhood neglect and abandonment and relayed some of her destructive behaviours now are a misguided acting-out in an attempt to reacquire this attention'.

62She also stated, 'Ms Hart acknowledged the seriousness of her crimes and expresses remorse for the victims'.  As I said, she wrote:

'The prospect of deportation weighs heavily on Ms Hart's mind.  She identified having absolutely no supports in New Zealand and only traumatic memories of her time there.  Her family is here and in recent years her parents have made concerted efforts and behaviour change to provide appropriate support for their children.  Removing Ms Hart's access to her nuclear family will no doubt be a trigger in a mental health decline and increase her risk of reoffending with a sense of inconsequentiality'.

63An important part of the findings of both reports was that your behaviour was overwhelmingly unplanned and impulsive and lay in both your substance abuse addictions and your accompanying mental health problems. 

64There is no doubt that the only way I can deal with you, Ms Hart, and I know you have been told this, is by way of a term of imprisonment and it will be a serious term of imprisonment.  This is the third time you have come before a have engaged in savage stabbings of other people.  This is the second time you have come before a court on a charge of intentionally causing serious injury in circumstances of gross violence.

65Ordinarily I would be expected to deal with you by way of a term of imprisonment with a minimum term of four years.  That is what ordinarily a court must do when sentencing someone for this crime except unless there are exceptional circumstances.  There are exceptional circumstances in this case in that you were 16 years old at the time that you committed this terrible offending; however, there is not much comfort in that a year later you then committed further terrible offending by way of repeated stabbing of a second victim, Mr Nyako.

66In my mind the circumstances surrounding the stabbing of Mr Nyako do not fall terribly far below that in terms of violence. 

67I am sorry that this has been such a long sentence to deliver, but there have been so many aspects that need to be covered in your case.  In sentencing you I take into account your plea of guilty, which I do regard as an indication of true remorse in relation to all the matters.  I based that on the entirely cooperative records of interview you ultimately conducted with police.  I note that you have written letters of apologies to all your victims and you wrote a letter to this court explaining your actions.  That can be something a court can be a bit sceptical about.  It can be seen as a self-serving exercise, but I am satisfied the way in which you expressed yourself both to your victims and to the court were truly indicative of remorse for your actions. 

68I take into account the damage done to you as a child over a long period of time.  I take into account the prospect of deportation, which means that your term of imprisonment will weigh more heavily upon you.  I take into account your youth.  You are still a young offender and you were a child at the time you committed the charges in 2016.  I take into account your traumatic background, I take into account your progress in prison.

69In sentencing you I also take into account the decision of R v Evans [2003] VSCA 223. There, a young man in a similar situation to yourself, who was dealt with for three armed robberies, one of them involving a terrible attack on a victim with a tomahawk, had his sentence of nine years with a seven-year minimum reduced to a term of seven and a half years with a three-year minimum. In his judgment Mr Vincent JA, with whom Mr Batt JA appeared, dealt with the question of disparity in sentencing where co-accused are dealt with in different jurisdictions. That is, your co-accused in relation to the 2017 offending was dealt with in the Children's Court while you are being dealt with here in the County Court.

70In those circumstances Mr Justice Vincent acknowledged that the authorities basically said that little can be based on the differences in jurisdiction and it was not a useful exercise to try and undertake parity.  This is all very legal, Ms Hart.  Your counsel will explain it to you later.  However, His Honour in that case looked at the personal circumstances of the offender, in particular his very difficult background and his youth at the time of his offending and, because of those factors, substantially and significantly reduced the sentence that had been imposed.  And I do so in your case as well.

71In my view the factors I have outlined, and in particular combined with your youth, will result in a sentence that is far less than would have been the case were you an older person.  Ultimately, however, the offending, as I have said several times, was incredibly serious.  It involved a savage knife attack on two people.  This is the second time you have been sentenced in this way.  Community protection, general deterrence, specific deterrence, denunciation and condign punishment are all the dominant sentencing principles in the exercise before this court.

72I therefore sentence you as follows.  Could you stand up, please. 

73In relation to the Indictment 1 on Charge 1, intentionally causing serious injury, you are sentenced to three years' imprisonment.  On Charge 2, theft of motor vehicle, you are sentenced to six months' imprisonment.  On the charge of assault with a weapon you are sentenced to two months' imprisonment.  The base sentence will be the sentence imposed on Charge 3 and three months of the - on Charge 1, I am sorry.  Three months of the - sorry, two months of the sentence imposed on Charge 2 and one month of the sentence imposed on the summary charge will be served cumulatively to the sentence imposed on Charge 1 and to each other, giving a total effective sentence for that indictment of three years and three months.

74In relation to Indictment 2, on Charge 1 you are sentenced to four years' imprisonment.  On Charge 2 you are sentenced to 18 months' imprisonment.  I order that the base sentence will be the sentence imposed on Charge 1, being four years, and that 12 months of the sentence imposed on Charge 2 be served cumulative to the sentence on Charge 1, giving a total effective sentence on that indictment of five years.

75I order that two years of the sentence imposed in relation to Indictment 1 be served cumulatively to the sentence imposed on Indictment 2, giving a total effective sentence of seven years.  I order that you serve a minimum term of four years before becoming eligible for parole.  Have a seat, please, Ms Hart.

76What is the PSD?

77MR SINGH:  Your Honour, it's 758 days.

78HER HONOUR:  I declare that 758 days of this sentence have already been served by way of - madam, Ms Hart, not until I finish, please - that 700 - I beg your pardon.  Seven hundred and ‑ ‑ ‑

79MR SINGH:  Seven-fifty-eight.

80HER HONOUR:  Seven hundred and fifty-eight days of this sentence have already been served by way of pre-sentence detention.  I declare that had you not pleaded guilty I would have sentenced you to a term of nine years with a minimum term of seven years.

81Is there any serious violent offender provisions?

82MR SINGH:  Not on this.

83HER HONOUR:  They don't - thank you. 

84ASSOCIATE:  And there's a disposal order.

85HER HONOUR:  There's a ‑ ‑ ‑

86MR SINGH:  Your Honour, there's disposal orders and also, Your Honour, I understand that recently a further report was filed by - written by Sandra Plant, psychologist, in relation to Mr Nyako.

87HER HONOUR:  Oh, I didn't see that.

88MR SINGH:  I thought that had been E-lodged.

89HER HONOUR:  No.  Thank you.  I note that I received a psychological report from Sandra Plant in relation to the continued progress of Mr Nyako.  The report dated 17 May 2019 notes that Mr Nyako presents with symptoms of post-traumatic stress disorder and a major depressive disorder.  He requires additional surgical intervention to further treat the injuries that he suffered. 

90The visible scarring, which requires further treatment, continues to be a source of significant distress to him.  He has a lack of motivation and inability to experience pleasure, difficulty concentrating, and he continues to withdraw from social and other valued activities.  She states:

'He reported feelings of shame and negative self-judgement in relation to the crime against him.  He reported that the crime had adverse impacts on his relationship with kinfolk in his home country due to media attention and cultural norms of behaviour'. 

91She noted that prior to this Mr Nyako had had no mental health problems and he requires ongoing mental health condition. 

92I also wanted to add that Dr Rakov noted in relation to Ms Hart that, whatever occurs in gaol, the continued psychotherapy is extremely important. 

93I congratulate Mr Nyako in having the courage to attend court today, sir, and I hope it is of some assistance to you in your recovery from this.  All right, thank you very much. 

94Yes, thank you, I have signed the ‑ ‑ ‑

95MR SINGH:  There should be a couple of disposal orders, Your Honour.

96HER HONOUR:  Just excuse me.  What did the jury want?  All right, that's fine, thank you very much.  There's a second disposal order, is there?

97MR SINGH:  There's one for each indictment, Your Honour.

98HER HONOUR:  Yes, thank you.  Ms Hart can be taken down, thank you.  How are we doing?

99ASSOCIATE:  Yes.

100HER HONOUR:  Could I just check, Mr Singh, that - I'm probably - I'm just having a brain blank here - that what I need to where there are two indictments, I sentence on each and then cumulation is between each.

101MR SINGH:  Yes, quite right, Your Honour.

102HER HONOUR:  That's right, good.  Yes, thank you.  I thank counsel for their assistance in this matter.  Yes, thank you.  Thank you, we will stand down.

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