Director of Public Prosecutions v Isaac (a pseudonym)
[2022] VCC 715
•24 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ISAAC (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2021 & 4 April 2022 | |
DATE OF SENTENCE: | 24 May 2022 | |
CASE MAY BE CITED AS: | DPP v Isaac (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 715 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Intentionally causing serious injury – Plea of guilty during - COVID-19 – Significant injuries to victim – High degree of moral culpability – serious example of offence – current sentencing practices – guarded prospects of rehabilitation
Legislation Cited: Sentencing Act 1991; s. 16 Crimes Act 1958
Cases Cited:R v Verdins [2007] 16 VR 240; DPP v Terrick and Ors [2009] VSCA 220; Webster v The Queen [2016] VSCA 329; DPP v Cook [2004] VSCA 11; Worboyes v The Queen [2021] VSCA 169; Nash v The Queen (2013) 40 VR 134; Lukudu v The Queen [2019] VSCA 248; DPP v Weber [2017] VSCA 93; Jawahiri v The Queen [2021] VSCA 287; DPP v Zullo [2004] VSCA 151; Tasevski v The Queen [2014] VSCA 135; Cedic v The Queen [2011] VSCA 258; Brown v The Queen [2018] VSCA 328; May-Jordan v The Queen [2017] VSCA 30; DPP v Cook [2020] VCC 1043; Chol v The Queen [2016] VSCA 252
Sentence: 8 years and 10 months imprisonment, with a non-parole period of 6 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Nathwani (29 October 2021) Mr J Lowy (4 April 2022) Mr L Cameron (Sentence) | Emma Turnbull Lawyers |
HIS HONOUR:
1David Isaac,[1] you have pleaded guilty to a charge that on 26 April 2020, without lawful excuse, you intentionally caused serious injury to Russell Young.[2]
[1] A pseudonym.
[2] A pseudonym.
2The offence carries a maximum penalty of 20 years’ imprisonment.
Circumstances of offending
3In the early hours of Sunday, 26 April 2020, you went to the house of Steven O’Donoghue[3] in Bendigo.[4] Another friend of yours, Michael Finnigan,[5] was also present at that address. After some time speaking with Mr O’Donoghue and Mr Finnigan, you said you wanted to go and catch up with your friend, Corey Marshall.[6] The three of you got into Finnigan’s car and set off to Marshall’s house.
[3] A pseudonym.
[4] Location anonymised.
[5] A pseudonym.
[6] A pseudonym.
4After spending approximately an hour at Marshall’s, you left with Finnigan after he told you that he wanted to leave.
5You and Finnigan got back into his car, with you driving. You told Finnigan that you wanted to go and visit another friend, and you drove to the house of Russell and Andrew Young.[7] You arrived at the Young house at approximately 5.12am. Your arrival was caught on a CCTV camera at the Young house.
[7] A pseudonym.
6Shortly after your arrival, you called Andrew Young and asked about his brother Russell. Andrew came out to the front of the house and spoke to you. He told you that Russell was in bed asleep. You told Andrew to wake him. Andrew told you that you were not allowed in the house because everyone was asleep.
7After talking near the front porch, you and Andrew Young walked back to Finnigan’s car. Andrew got into the back seat of the car, and you got into the driver’s seat. Finnigan was still in the car, sitting in the front passenger seat.
8Once in the car, you told Andrew that you believed his brother Russell had been communicating with your girlfriend on the dating site ‘Tinder’. You told him you wanted to speak to his brother. Andrew Young saw that you were fidgety and agitated.
9While the three of you were in the car, Russell Young came out of the house and approached the car. He got into the back seat. As the two brothers were seated in the car, Andrew removed a concealed knife from the back of his pants and tried to pass it to Russell. Russell did not take the knife. A little later, you told Andrew to leave. He got out of the car, taking the knife with him.
10With Russell still in the car, you drove away from the Young household. You drove for a few hundred metres and stopped on a section of dirt road surrounded by paddocks. There was no lighting apart from the headlights of Finnigan’s car.
11You and Russell Young then got out of the car. Finnigan remained in the front passenger seat.
12You spoke to Russell at the front of Finnigan’s car. The car headlights illuminated the area where you and Russell were standing. Finnigan was able to see you and Russell from where he was seated.
13Finnigan saw the two of you talking for a few minutes. At one point Finnigan looked down, and when he looked back up, he saw that you had grabbed Russell Young by the shoulders.
14You then struck Russell to the head, causing him to fall to the ground. Finnigan then saw you kick Russell to the head, in what he described as a “soccer type” kick from a metre run‑up. You then stomped on Russell Young’s head.
15After witnessing those events, Finnigan got out of the car and ran to you, calling at you to stop. He yelled at you, saying that if you continued, you would kill Mr Young.
16You then turned to Finnigan and began punching him to the shoulders. Finnigan continued yelling at you to stop, repeating that you would end up killing Russell Young. You then walked away.
17Finnigan knelt down beside Russell, who appeared to be unconscious, making gurgling noises. He noted there was a great deal of blood around his body. Finnigan rolled Russell onto his side, and could see blood coming from his mouth. Finnigan placed Russell’s head on his lap, as it appeared that he was choking.
18Finnigan called out to you, asking you to call an ambulance. You did not do so.
19At 5.42am, Finnigan used your telephone to call Andrew Young.
20The call was answered by Andrew’s partner. Finnigan told her that Russell had been hurt and was lying on a dirt road not far from their house. As a result of that call, Andrew grabbed the keys to his mother’s car and drove at high speed to where he thought the incident occurred. Andrew and Russell’s mother also travelled with him.
21On arrival, Andrew saw his brother lying on the road. He got out of the car to help his brother.
22Andrew yelled at you, saying “What the fuck just happened? What did you do?” You responded, saying “Yeah, boy ... You want to have a go too?”. You were in a rage and screaming that Russell was a dog. You also said, “I’m not going down for a murder rap, get him conscious.”
23Andrew and Finnigan moved Russell to the back seat of Andrew’s car. Andrew then drove Russell and their mother home. The CCTV camera captured the return which was at 5.43am.
24You and Finnigan then got back into his car. You drove back to O’Donoghue’s house to collect your car. You then got into your car and drove away.
25Back at the Young house, emergency services were called by a friend of the Youngs’. He told the emergency operator that Russell Young had fallen from a motorbike and hit a tree. He did so at the direction of Andrew. While waiting for an ambulance, Andrew cut the bloodied wet clothing from his brother Russell.
26Paramedics and police attended a short time later. Russell was provided with emergency treatment, then taken to the Bendigo Hospital to be stabilised, before being airlifted to the Royal Melbourne Hospital in a critical condition. He was examined and treated in the emergency department of the Royal Melbourne Hospital. The examination revealed that he had sustained a fractured skull in five places, bleeding to his brain in two places, resulting in an acquired brain injury.
27A little later that morning, you sent a message to Mr Finnigan thanking him for stopping you, saying, had he not done so, you would have killed Russell Young.
28Your phone was being monitored by police in respect to another investigation. The following were intercepted:
i) A text message to your girlfriend at 7.17am on 26 April 2020, in which you stated “hope ya tinder profile was worth it anyway”. She responded “this is a fucking joke. None of this is my fault”. You responded “it is his fault. and Doug next”;
ii) A telephone call at 10.00am later that day in which you explained that a friend had been in an accident and enquired as to whether helicopter airlifts are required to be paid in advance if they did not have private health cover.
29Although Andrew Young initially told police that Russell had been injured in a motorcycle accident, observations made by police investigators were clear that Russell had not sustained the injuries in such an accident.
30Police investigations led to your arrest on 7 May 2020. You were remanded in custody in relation to this and other offending. You were offered the opportunity to be interviewed, but declined, as is your right. On 12 May 2020, you were charged with the offence for which you now fall to be sentenced.
31A search warrant was executed at your residence on 22 May 2020 and a number of items were seized, including two pairs of steel capped boots.
32One pair of the boots were examined and the presence of blood was confirmed. DNA analysis was conducted, where the DNA of Russell Young was statistically linked to the likelihood ratio of 100 billion.
33As a result of the trauma he suffered, Russell Young has no memory of the assault or any of the events that occurred after he went to bed on the morning of 26 April 2020.
34Dr Jo Ann Parkin of the Victorian Institute of Forensic Medicine (VIFM) reviewed the medical records regarding Russell’s medical treatment following the assault. His medical issues are summarised as follows:
(i) Multiple facial fractures: these were to the nasal bone, frontal bone, right sphenoid bone, right orbital margin, anterior wall of right maxilla.
(ii) Traumatic brain injury involving intracranial haemorrhage, subarachnoid haemorrhage, extra-axial haemorrhage, and diffuse axonal sheer injury requiring life support procedures.
(iii) A large right subgaleal haematoma, that is, bleeding between the skull and the scalp.
(iv) Paroxysmal sympathetic hyperactivity, involving episodes of increased heart rate, increased breathing rate, and sweating.
(v) Post traumatic amnesia – which is ongoing.
(vi) Ileus - being a lack of movement of the intestines leading to a build-up and potential blockage of food, nausea, vomiting and abdominal distension.
(vii) Right sided neglect and inattention as a result of the Traumatic Brain Injury.
(viii) Severe dysarthria, being a motor speech disorder.
(ix) Moderate oral dysphagia – that is, difficulty swallowing.
(x) Incontinent of bowel and bladder.
35Dr Parkin also noted:
“Mr Young had external injuries in the form of a 4cm laceration to his right eyebrow which required suturing, two small lacerations above the right eyebrow, a superficial abrasion to the right cheek, small abrasions on the fingers of the left hand, two small abrasions on the midback and bruising on the right eyelid.”
36The severity of the trauma sustained by Mr Young was noted by Dr Parkin as follows:
“Mr Young’s head injuries were life-threatening. He required intubation and constant monitoring in the intensive care unit. He developed paroxysmal sympathetic hyperactivity disorder which required medication and close monitoring to prevent life threatening elevations in heart rate and blood pressure…
Mr Young had significant cognitive, behavioural and motor deficits when he was transferred to Royal Talbot Rehabilitation Centre. Two months after the incident he was still unable to complete basic activities of daily living such as walking, dressing and toileting without supervision. He had behavioural changes i.e. increased impulsiveness which posed an increased risk for further injury. He was also noted to have poor insight into his deficiencies. Such changes in physical function, cognition and behaviour are commonly seen after traumatic brain injuries.”
37The trauma and impact suffered by Russell Young is set out in his victim impact statement, tendered as Exhibit P2 on the plea. His statement records the following:
i) As a result of the injuries Russell sustained, he was not able to write his own impact statement.
ii) He no longer has the ability to change the pitch of his voice.
iii) He is now required to wear glasses because of the loss of sight in his right eye.
iv) He is no longer able to walk as he is unable to put weight on his leg.
v) He is no longer able to drive.
vi) He is unable to work due to a lack of movement in the right side of his body.
38Mr Young states that he lives with the long-term consequences every day, and is now reliant on others to assist him with basic living skills.
39Exhibit P3 is the victim impact statement of his mother Melinda Young.[8] She states “this has been my worse nightmare. To watch my son now unable to complete basic tasks is heartbreaking, exhausting and a long term reality for me”. She has difficulty sleeping as she is constantly reliving what happened.
[8] A pseudonym.
40She is now her son’s full-time carer, as he is no longer able independently to undertake daily living tasks.
Personal Circumstances
41You were born in December 1992. You are 29 years of age. You were 27 at the time you committed this offence.
42You were raised by your parents in the Bendigo area with your three older siblings. You have a sister aged 38, and two brothers aged 34 and 32. Your mother works as a nurse, and your father, who is deceased, was a dairy farmer.
43When you were four years of age, your father suffered a stroke that left him unable to work the family’s dairy farm. As a result, the farm was sold not long after his stroke.
44A psychiatric report of Dr Nina Zimmerman, dated 30 March 2022, was tendered on your behalf at the plea hearing. She assessed you on 16 March 2022.
45You told Dr Zimmerman that following your father’s stroke he developed a constant ringing in his ears that caused him to become depressed and angry. From that time, he was violent towards you and your siblings.
46Your parents separated when you were approximately six years of age but you maintained regular contact with your father throughout your childhood.
47You instructed your counsel that your father would erupt into violence over relatively minor matters. When you were aged 12, your father was diagnosed with motor neurone disease.
48You have a close relationship with your brothers and you report that all three of you have anger issues. One of your brothers has also been in trouble with the law and has served time in gaol.
49When assessed by Dr Zimmerman, you spoke highly of your mother. You described her as loving but your relationship with her deteriorated when you started to become violent at home. You report that your relationship with her is now improving and you are in regular contact with her from the prison. You stated that your mother experienced depression and anxiety in the past which you attributed to the stress related to your drug use and lifestyle.
50Tendered on your behalf was a reference from your mother dated 31 March 2022. Your mother confirms much of what you told Dr Zimmerman concerning your family background. She states that following your father’s stroke his difficulties caused severe headaches and frustration which resulted in episodes of anger and violence. It was because of his anger and violence that she, together with you and your siblings, moved away from the farm. Your mother states that your father passed away when you were 15 years of age.
51You struggled with your schooling and left in Year 7. You told Dr Zimmerman that you were socially isolated at secondary school and were frequently in trouble. You were expelled in Year 7 and your mother “home-schooled” you and another brother, for approximately two years until you were able to obtain work. Since then, you have worked in a variety of unskilled jobs including at a meat processing plant, in farming, in demolition and as a removalist. You told to Dr Zimmerman that you were a good worker when younger but your increasing use of drugs meant you were unable to sustain employment.
52You told Dr Zimmerman that drugs have been a problem for you since the age of seventeen. The main drugs you used were ‘ice’ and GHB. You described yourself as a heavy user. You have also used ecstasy and cannabis on a regular basis. You have also tried heroin, suboxone, benzodiazepines and hallucinogens, but not on a regular basis. You commenced to drink alcohol at the age of fourteen.
53You have an extensive history of criminal offending. Your criminal record dates back to August 2011 and involves some nine separate appearances for a multitude of offences including offences involving violence, drugs, dishonesty, and breaches of Community Correction Orders and other court orders. On 5 June 2017, you were sentenced to an aggregate term of imprisonment of 6 months for offences including unlawful assault and recklessly causing injury. On that same day you were also sentenced to 2 months’ imprisonment for contravening a Community Correction Order that was imposed for a number of offences including assault with an instrument, discharging a missile causing injury or danger, assaulting an emergency worker on duty, unlawful assault and behaving in a riotous manner in a public place. In August 2019 you were sentenced to 188 days’ imprisonment for offences including driving whilst disqualified and trafficking in methylamphetamine.
54Your counsel submitted that since leaving home at the age of 18, there were times when you were homeless. He submitted that throughout your late teens and twenties there was a lack of stability in your life, an absence of protective factors and positive influences. Those factors, it was submitted, contributed to your offending.
55At the time you committed the offence before me, you instructed your counsel you were “living on and off” with your girlfriend, Chloe.[9] You instruct that your relationship suffered because of your drug use.
[9] A pseudonym.
56You spoke to Dr Zimmerman about the offence. You said you were homeless at the time, moving between your mother’s place and various motels. You told her you were using ice and GHB on a daily basis and had been doing so since you were released from prison in “August 2021”. That date is an obvious error and I take it to be a reference to August 2019.
57You commenced your relationship with Chloe around the time you were released in August 2019. You claimed that following an argument with Chloe, she created a Tinder dating profile to spite you. You became aware of a communication on Tinder between Chloe and Russell Young. You told Dr Zimmerman that you were filled with rage because it was the fourth time that a girlfriend had cheated on you with a friend.
58You also told Dr Zimmerman that on the night of the offending you were using GHB and ice with friends. You said it was Michael Finnigan who wanted to go and visit Russell and his brother and that it was not your intention to hurt Russell as you drove to their home.
59You further stated that Andrew Young came out and got into the car and smoked drugs with you and Finnigan. There was discussion concerning the Tinder communication and you stated that Andrew agreed that something would have to be done to Russell as ‘payback’. You said Russell joined you and the others in the car and that you drove off with the intention, at that stage, of getting some money you owed Russell. You acknowledged that you pulled over and said you spoke to Russell about the money and the exchange between him and Chloe. You said you “exploded” because of the disloyalty and that you then assaulted him. You claimed that you were then involved in trying to get help for Russell after the assault.
60You acknowledged to Dr Zimmerman that you are an angry person. You told her that since the incident you have thought about how you could have handled the situation differently. You said you felt bad about what had happened because you never meant to cause such damage to Mr Young. You further stated you would not have been violent had you not been on drugs at the time.
61Drug use has been a significant issue for you. It has impacted on your ability to function in a range of areas. It has impacted on your relationships with your former partners. Dr Zimmerman is of the opinion that you meet the criteria for methylamphetamine and GHB use disorders.
62Dr Zimmerman did not think it possible to make a formal diagnosis of a personality disorder in light of the significant effect your heavy drug use has had on your functioning throughout your adult years but she noted you have had problems adhering to rules and you described difficulties regulating your emotions from a relatively young age.
63Your drug use at the time of your offending, in Dr Zimmerman’s opinion, aggravated your underlying tendency to respond with anger when feeling distressed or betrayed. She said that your state of intoxication is likely to have impaired your ability to exercise appropriate judgment and to think clearly and calmly at the time you offended. She considers it “crucial” that you engage in appropriate drug and alcohol counselling, whether that be in prison or in the community. It was not suggested that your mental state should attract any of the six considerations set out in The Queen v Verdins.[10]
Sentencing Considerations
[10] 16 VR 240.
Nature and Gravity of Offence
64Mr Isaac, you have pleaded guilty to a most serious offence. So much was conceded by your counsel. The maximum penalty of 20 years’ imprisonment reflects just how seriously Parliament and the community views this offence.
65Your conduct on this early morning was callous and brutal. As you acknowledged, in your text message to Mr Finnigan, had he not intervened, you would have killed Mr Young.
66You intended to cause Mr Young serious injury. You struck him and he fell to the ground. Then, as he lay defenceless and vulnerable, you kicked his head as you would a soccer ball from a metre run up. You then stomped on his head. You kicked and stomped on a most vulnerable part of the body.
67As is apparent from the report of Dr Parkin, the injuries sustained by Mr Young were extremely serious and life threatening. He had to be airlifted from Bendigo to the Royal Melbourne Hospital where he was admitted to the Intensive Care Unit. On the 21 May 2020 he was transferred to the Royal Talbot Rehabilitation Centre. He was still there on the 30 June according to Dr Parkin, although it is not clear when he was finally discharged.
68Mr Young’s victim impact statement highlights the significant impact your offending has had upon him. In addition to not being able to do the things I earlier mentioned, things that are essential to daily living and enjoyment, Russell Young is reliant on others to assist with his basic living. He is fortunate at this time to have the support of his mother whose life, itself, has been greatly impacted by your senseless conduct.
69I accept the learned prosecutor’s submission that as a result of the assault, Mr Young has sustained serious, life-threatening injuries, including injuries to his brain, which were life changing and have left him with significant ongoing impairment. Your counsel properly conceded the devastating impact of your assault upon Mr Young.
70It is regrettable that a more up to date medical report was not obtained, despite my requests for such a report. At best, on 7 April 2022, an email was sent from the OPP to the Court and to your legal representatives, advising that according to the victim and his mother, there has been no appreciable change to his physical and mental state since October last year, when your plea of guilty was entered. You have not challenged that further information.
71I am not able to find that Russell’s physical and mental impairments will be with him for the rest of his life, although I suspect some will. Nevertheless, I do have significant regard to the fact that for more than two years after you caused his injuries, Mr Young is still disabled and needs the support of others to go about his daily life.
72I find that you attended the Young household for the purpose of confronting Russell Young because of the alleged communication between him and your then girlfriend on Tinder. This is consistent with what you told Dr Zimmerman. In evidence before me, Andrew Young stated that upon your arrival, you questioned him whether his brother spoke to your girlfriend on Tinder.
73After Russell Young got into the car, you told Andrew Young to leave. You then drove to a dark, isolated location where you committed a brutal assault upon him.
74I am not able to find that you drove off with Mr Young for the purpose of you getting money you owed him. While Russell Young gave evidence before me that he gave you $11,000 the day before the assault to get him some drugs, he did not have any memory of anything after he went to bed on the morning of his assault. He had no memory of what was discussed in the car. You did not give evidence as to this matter. If the purpose of the drive was getting him money you owed him, it does not explain why you stopped in that dark, remote location. I accept the prosecution submission that you stopped at that location to “deal with the Tinder issue”. The topic of “payback” was discussed, according to you, with Andrew Young. However, I am not able to find, beyond reasonable doubt, that there was pre-meditation with respect the charged offence. It is open, as you told Dr Zimmerman, that during your discussion outside of the car, you “exploded” because of what you perceived to be disloyalty.
75Consistent with your plea of guilty, when you assaulted Russell Young, you intended to cause him serious injury. There is no evidence or suggestion that Mr Young did anything to provoke your attack upon him or did anything by way of retaliation.
76You told Dr Zimmerman that after your assault on Russell, you tried to help him. It is not clear what you meant by this, but if that is a reference to what you did immediately after the assault, I reject that assertion. Your assertion that you tried to get help for Russell after the assault does not sit with what Mr Finnigan stated or what is contained in the prosecution opening.
77As stated, after you stomped on Russell Young’s head, Finnigan yelled at you to stop, out of fear that you would kill him. In response, you began punching Finnigan. Finnigan continued to tell you to stop and you finally walked away from Young.
78It was Finnigan who rendered assistance to Russell Young. He asked you to call an ambulance. You did not do so. It was Finnigan who called Andrew Young on your phone. Upon Andrew’s arrival at the scene, you threatened him saying “you want to have a go too?” You were raging and screaming that Russell was a “dog”. You said, “I'm not going down for a murder rap, get him conscious.” Your concern at that time was not for your victim, but for yourself. Your behaviour in the immediate aftermath of your assault upon Mr Young was callous, and not conduct in any way consistent with you assisting him.
79In mitigation, your counsel submitted and I accept, that this was not a prolonged attack, that it was of relatively short duration, and no weapon was used.
80However, as was said in DPP v Terrick:
While the fact that a lethal weapon has not been used may constitute the absence of an aggravating circumstance, the capacity of the hands and feet to inflict severe injury on an unconscious victim should not be minimised. There is little merit in the suggestion that an offender who repeatedly and forcefully kicks an unconscious victim to the head is less culpable than one who inflicts injuries with a weapon.[11]
[11] DPP v Terrick and Ors [2009] VSCA 220, [64].
81In Webster v The Queen the Court stated:
The absence of some aggravating features referred to in Nash means this offence is appropriately viewed at the low end of the upper range, but the point should be made that it is not necessary for the injuries inflicted to be catastrophic or for the assault to be prolonged or for the offence to occur ‘in company’ in order for such an offence to fall into the upper range of seriousness.[12]
[12] [2016] VSCA 329, [30].
82As I have stated, I do not know if Mr Young was unconscious at the time you kicked him in the head or at the time you stomped on his head, but the fact remains he was lying in a vulnerable position on the ground. It was not put that beyond the kick and the stomp to Mr Young’s head you continued your assault. However, the capacity of your hands and feet to cause serious injury is borne out by the serious injuries in fact suffered by Mr Young.
83I accept that although Mr Finnigan was in the car at the relevant time, you acted alone in your assault upon Mr Young.
84Your counsel submitted that at the time of your offending you “just blew up” but you did not intend to cause such devastating injuries. Whilst it may be that you did not intend to cause the “devastating” injuries the victim in fact suffered (a submission based only on your instructions), I do not consider that much by way of mitigation flows from that circumstance.
85I refer again to the decision in Terrick, where at paragraph 41, the Court stated:
Where … an offender intends to cause (or foresees the likelihood of causing) really serious injury to another person, and does so, the fact that the offender did not foresee the precise nature, or extent, of the injuries actually inflicted will not ordinarily reduce the offender’s culpability. Even if it be accepted that the respondents did not contemplate the exact nature of the injuries, or the state of permanent disablement, which they inflicted … that circumstance does not mitigate their responsibility for what occurred, given that they intended to cause maximum harm or foresaw the likelihood of that consequence.
86In my opinion, your conduct in kicking the victim’s head as he lay on the ground, in the manner that you did, and then stomping on his head, as I have already stated, a most vulnerable part of the body, reflects an intention to at least cause really serious injury. This is consistent with your later expression of gratitude to Mr Finnigan for stopping you as you would otherwise have killed Mr Young. It is consistent with the injuries in fact caused to Mr Young.
87The severity of the injuries suffered by Mr Young and their impact on him are relevant considerations to the sentence to be imposed,[13] however, I must be cautious and not allow them to swamp all other sentencing considerations.[14]
[13] Section 5(2)(daa) Sentencing Act 1958 (Vic).
[14] DPP v Cook [2004] VSCA 11, [17].
88In my opinion, this is a serious instance of the offence of intentionally causing serious injury. I consider there is very little that mitigates your moral culpability, which I find to be high. In this respect, I have not ignored your own background and the violence to which you were subjected. The fact that you were using methylamphetamine at the time you committed this offence does not reduce your level of culpability. I accept Dr Zimmerman’s conclusion that your use of methylamphetamine at the time of this offence aggravated your underlying tendency to respond with anger when feeling distressed or betrayed, and that your state of intoxication impaired your ability to exercise appropriate judgment about your behaviour. However, as stated, use of methylamphetamine and or other drugs at the time does not reduce your level of moral culpability.
Plea of Guilty
89Your plea of guilty to the charge was entered on the 27 October 2021 during pre-trial argument, and one day before a jury was to be empanelled to hear your case. At that time you were facing the more serious charge of intentionally causing serious injury to Russell Young in circumstances of gross violence.
90However, it should be noted that although you instructed your counsel that you “knew the right thing to do was to confess,” up until the time your plea was entered you disputed that you were the person who inflicted any injury to Mr Young. Indeed, on the 20 October 2021, when pre-trial submissions commenced, I was informed by your then counsel, that whilst you admitted being present at the scene where the assault on Mr Young took place, you claimed it was Mr Finnigan who was responsible for inflicting the serious injury, and not you. This is consistent with the cross-examination of Finnigan at the committal hearing.
91A number of witnesses were required to give evidence at the committal hearing and before me in pre-trial hearings in late October 2021. In addition to Finnigan, Andrew Young gave evidence at the committal hearing. Finnigan, Andrew Young, Melinda Young and Russell Young also gave evidence before me at the pre-trial hearing.
92Despite your late plea and your seeking to blame Finnigan for what you did, you are nevertheless entitled to some moderation of penalty by reason of your guilty plea and sparing the victim, his mother, his brother and a number of other witnesses from having to give evidence before a jury.
93You have also spared the Court and community the time and cost of a trial. Your plea of guilty meant that another trial at Bendigo was able to be heard in its place. This is an important factor given the impact on court lists caused by the COVID-19 pandemic. As was stated in Worboyes v The Queen,[15] because your plea was entered at the time of the pandemic, I am to ensure that there is a perceptible amelioration of sentence.[16]
[15] [2021] VSCA 169.
[16] Ibid, [39].
Remorse
94In his written submissions, your counsel, Mr Lowy, acknowledged that your case did not resolve at an early opportunity but, he submitted, that was not inconsistent with you feeling shame, remorse and sorrow for the harm you caused to the victim.
95Your counsel submitted that you feel tremendous guilt for the injuries you caused to Mr Young, acknowledging that your victim cannot work and cannot earn a living. You acknowledged that he is living a life worse than yours, even in your current circumstances on remand.
96Your conduct in the period of time shortly after the attack on Mr Young does not speak of remorse. As I have already mentioned, in the text messages between you and your girlfriend, sent on the morning of 26 April 2020, you told her “it is his fault. and Doug next.”
97Your plea of guilty was entered on 27 October 2021, one day before your trial was due to commence. Your defence, up until then, as I have already mentioned, was to cast the blame on Mr Finnigan.
98In my opinion, your conduct up to the time your plea of guilty was entered did not reveal any shame, remorse or sorrow for what you did.
99I am prepared to accept that you have in more recent times demonstrated some remorse. Dr Zimmerman states that you felt bad because you were aware that Russell was clinging to life and that his mother had to witness him clinging to life and because you never meant to cause such damage. Your efforts on remand also show some realisation by you that you need to reform your life.
100You have also written a letter to the Court in which you speak of your shame and humiliation for what you did. You state you realise the consequences of the bad choices you have made in your life and that if you continue to make such choices you are going to end up suffering a miserable and lonely life. It is your hope, while in custody, that you will be able to undertake a Bachelor degree course in commerce or finance. You also state that you take full responsibility for what you did and you express your deepest regrets and apologies to the Young family.
101In light of your conduct up until the time you pleaded guilty, especially in seeking to put the blame on Finnigan, but for whose actions you might have faced a more serious charge, it is difficult for me to know whether what you have written is genuine and sincere. You did not give evidence. However, as your letter was not challenged, I will accept that you are now remorseful for your conduct and are endeavouring to improve your life.
Conditions on remand
102You have been in custody on remand for a significant period of time. You instructed your counsel that you found the first 12 months on remand extremely difficult. You said that you struggled with your mental health and contemplated taking your own life. You were placed on antidepressant medication from approximately mid-2021 which you have found to be beneficial.
103You have worked as a billet and have also applied to be a peer mentor. You have taken an interest in your personal fitness and have been reading books on topics such as Buddhism, self-help and economics. You report that this is the longest period of sobriety you have experienced since being a child and you acknowledged your need for further assistance to address your deep-seated anger issues.
104You told Dr Zimmerman that your time on remand has been very hard because of the frequent lockdowns and periods of isolation associated with the COVID‑19 pandemic. You told her you have had no visits for approximately two years.
105With regard to your conditions in custody, you instructed Mr Lowy that there were approximately 10 months when you were only out of your cell for three hours per day and for six of those months there were several periods of 24-hour lockdowns. You told him of other difficulties that are set out in the outline of plea submissions and to which I have had regard. I do note, however, that there was no evidence called to establish a number of your assertions. For example, I am not able to find, on the balance of probabilities, that there were threats made to you of disciplinary action and loss of emergency management days as a result of your expressed concern of being placed at risk of contracting COVID-19.
106You also told Dr Zimmerman you were adamant you were not going to use drugs again. A number of factors contributed to this decision, you said, including the impact on you of the severity of the victim’s injuries, the length of time you will have been in prison and the fact you are now focused on business with a desire to undertake studies in that area. Following the conclusion of the plea hearing, your solicitors forwarded to the Court urine analysis results conducted on 20 June 2020, 10 April 2021, 7 June 2021, 8 December 2021 and 19 December 2021. They all confirm that you have not used any illicit drugs whilst in custody.
107Whilst your time on remand has been very difficult, you also acknowledge in your letter that it has given you the opportunity to reconnect with your mother and other members of your family. Nevertheless, I do accept that because of the restrictions in force in the prison system as a result of the COVID-19 pandemic, your time on remand has been rendered more onerous and thus allowance will be made in the sentence to be imposed.
Rehabilitation
108As mentioned, Dr Zimmerman is of the opinion you suffer methamphetamine and GHB use disorders. She states you have a clear and serious problem with substance misuse.
109I have already referred to your mother’s character reference and have had full regard to the matters of which she writes. Your mother states that your goal is to become a better person and that you have been making positive changes towards that end, including by reading, reflecting deeply and having an intention to improve your education level. She also states that you have a very strong, extended supportive family and friendship group who will assist you to make a fresh start upon your release.
110Also tendered on your behalf was a character reference from Melissa Underwood.[17] She is a longstanding family friend. You are the godfather to her eldest child. She states that you have been suffering with mental health issues for at least a decade and have also been struggling with addiction. You lived with her and her partner for a period of time and Ms Underwood states how absolutely heartbreaking it was to see how quickly you became dependant on the drug GHB. She is of the opinion that you are genuinely sorry for your behaviour. She will continue to support you upon your release.
[17] A pseudonym.
111You have a significant history of offending. You are not to be punished again for your previous offending but your record is relevant to my assessment of your prospects of rehabilitation, the need for the sentence to deter you from offending in the future, and the protection of the community.
112In assessing your prospects, I have regard to what you report are your efforts towards your rehabilitation whilst on remand. I also note that you have previously attempted a residential treatment program in 2016 at Quin House. You have also been provided with opportunities to rehabilitate with the imposition of Community Correction Orders.
113Notwithstanding your recent efforts, which are to be encouraged, in my opinion, your prospects remain guarded at this time. Although you report a positive change in attitude and you are making efforts to rehabilitate, in my opinion, you still have some way to go before your prospects are to be considered better than guarded. Dr Zimmerman states that your optimism regarding the ease with which you will be able to give up drugs and stop offending fails to take into account your life-long patterns of behaviour and difficulties remaining drug free in the past. She further states it is crucial that you engage with appropriate counselling to help you with your stated goal of remaining drug free in the future.
114Your counsel has urged a sentence that will allow for your continued treatment after your release from custody. He submitted that a lengthy period on parole will best achieve this end and will best protect the community. If by this he meant that I should impose a sentence with a parole period longer than what might otherwise be appropriate, I do not agree. In all the circumstances, I cannot see a basis for such a disposition. In setting the non-parole period, I am required to ensure that the non-parole adequately reflects the gravity of your offending and all relevant sentencing purposes set out in the Sentencing Act 1991, particularly, in my view, deterrence, denunciation and just punishment.
Deterrence, Denunciation and Just Punishment
115I accept the prosecution submission that the principles of general deterrence, denunciation and just punishment are significant considerations in the sentence to be imposed. In my view, they are the dominant considerations.
116Persons who are minded to offend in the way you offended must understand they risk stern punishment. Furthermore, your conduct, which was both brutal and callous, is properly to be denounced and condemned.
117Given your history of offending behaviour and my assessment of your prospects for rehabilitation, there is also a need that the sentence to be imposed deters you from further offending.
Current Sentencing Practice
118I am required to have regard to current sentencing practice. Current sentencing practice may provide a relevant yardstick by which a Court can attempt to achieve consistency in sentencing and the application of sentencing principles.
119I have reviewed the cases to which I was referred by counsel, as well as other cases.[18] I have had regard to the cases referred to in the Judicial College of Victoria’s Sentencing Manual.
[18] Nash v The Queen (2013) 40 VR 134; Lukudu v The Queen [2019] VSCA 248; DPP v Weber [2017] VSCA 93; Jawahiri v The Queen [2021] VSCA 287; Webster v The Queen [2016] VSCA 329; DPP v Terrick [2009] VSCA 220; DPP v Zullo [2004] VSCA 151; Tasevski v The Queen [2014] VSCA 135; Cedic v The Queen [2011] VSCA 258; Brown v The Queen [2018] VSCA 328; May-Jordan v The Queen [2017] VSCA 30; DPP v Cook [2020] VCC 1043; Chol v The Queen [2016] VSCA 252.
120In my consideration of current sentencing practice, I am mindful of what was said by Tate JA in Tasevski v The Queen:
It can be accepted that comparisons with other cases will only be of limited assistance in determining an appropriate sentence in an individual case. While current sentencing practices are important, care must be exercised when having regard to sentences passed in other cases because while past sentences provide a historical account of what has happened previously, they do not of themselves fix boundaries which must dictate future sentences. It is only by reference to the whole of the circumstances giving rise to the offending that unifying principles can be discerned.[19]
[19] Tasevski V The Queen [2014] VSCA 135, [51].
121In Lukudu v The Queen[20] the Court stated:
A consideration of cases in this Court for intentionally causing serious injury reveals that there is a wide range of circumstances covered by this offence; that sentences for the offence have, in recent times, increased; and that it is relevant to have regard to the use of a weapon, the context in which the offence occurred and the severity of the injuries sustained by the victim. Moreover, general deterrence remains an important aspect of a just sentence in relation to offences of this kind. Sentences in the high single figures, and into the double figures, have been imposed.[21]
[20] [2019] VSCA 248.
[21] Ibid, [46].
122A review of cases shows there is a wide range of sentences that have been imposed for this particular offence. This is hardly surprising given the myriad circumstances in which the offence may be committed; the wide definition of ‘serious injury’ as defined in the Crimes Act 1958; and the varying backgrounds of those who commit such an offence. Notwithstanding a requirement that I am to have regard to current sentencing practice, it is but one factor of many to which I must have regard and I am to sentence you on the basis of the circumstances of this case.
Sentence
123On the charge of intentionally causing serious injury you are sentenced to a term of imprisonment of 8 years and 10 months. For reasons I have already discussed regarding the non-parole period, I set a non-parole period of 6 years and 2 months.
124Pursuant to section 18 Sentencing Act 1991 the period of 741 days not including today is to be reckoned as time already served on the sentence imposed.
125Had it not been for your plea of guilty, the sentence I would have imposed is one of 10 years 6 months’ imprisonment with a non-parole period of 7 years 9 months.
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