Director of Public Prosecutions v Jez

[2022] VCC 801

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS	Case No. CR-20-01172
v
PETER JEZ

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Plea – Ballarat; Sentence - Melbourne
DATE OF HEARING:	3 May 2022
DATE OF SENTENCE:	27 May 2022
CASE MAY BE CITED AS:	DPP v Jez
MEDIUM NEUTRAL CITATION:	[2022] VCC 801

REASONS FOR SENTENCE
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Subject:        CRIMINAL LAW

Catchwords:                   Common Law Assault; Recklessly Causing Serious Injury;

Contravention of a Family Violence Intervention Order
Legislation Cited:           Sentencing Act 1991

Cases Cited:                   Hamid v R [2019] VSCA 5; Lukudu v R [2019] VSCA 248;

Ranger v R [2018] VSCA 271; R v Verdins & Ors (2007) 16 VR

269; Worboyes v R [2021] VSCA 169; Donnelly v R [2021] VSCA

109; Director of Public Prosecutions v Dalgliesh (a pseudonym)

[2017] HCA 41

Sentence:  Total effective sentence of 5 years and 3 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. D Cordy	Solicitor for the Office of Public Prosecutions
For the Offender	Mr G. Davis	Ann Valos Criminal Law

HIS HONOUR:

Introduction

1      Peter Jez, you have pleaded guilty to one charge of common assault which carries a maximum penalty of five years’ imprisonment, one charge of recklessly causing serious injury which carries a maximum penalty of 15 years’ imprisonment, and one charge of contravening a Family Violence Intervention Order, knowing that your conduct would probably cause harm or fear for safety, which carries a maximum penalty of five years’ imprisonment.

2         You also admitted your criminal history.

Circumstances of the Offending

3     The circumstances of your offending were set out in the Amended Summary of Prosecution Opening on Plea, filed at your plea hearing on 3 May 2022 and marked Exhibit 1.  That document contains an agreed factual basis of the offending for which you will now be sentenced.

4     Your offending can be briefly summarised.  Your offending took place on 16 December 2019.  Approximately two weeks prior to your offending, your de facto relationship with one of your victims, Makayla Ayre,[1] ended.  You had been living together at the Wendouree property where your offending occurred, prior to your relationship ending.  At the time your relationship ended, you and Ms Ayre had an infant child together, Miley.[2]  Ms Ayre also had an older child from a previous relationship.

[1]         A pseudonym.

[2]         A pseudonym.

5     As at 16 December 2019, Ms Ayre had commenced a casual relationship with your second victim, Leo McGinley.[3]  Ms Ayre and Mr McGinley were not residing together.

[3]         A pseudonym.

6     A few weeks before your offending, on 3 December 2019 at the Ballarat Magistrates’ Court, a final Family Violence Intervention Order was issued in favour of Ms Ayre, prohibiting you from committing family violence towards Ms Ayre or her children and damaging property or threatening to damage property belonging to Ms Ayre or her children.  I understand this order was obtained in the context of an acrimonious incident around the time your relationship with Ms Ayre ended.

7     During the afternoon and into the evening of 16 December 2019, you and Ms Ayre were exchanging Facebook and text messages regarding the breakdown of your relationship.  You also attempted to call Ms Ayre on several occasions, but she did not answer those calls.  The messages exchanged between you and Ms Ayre between 8.53 pm and 9.19 pm were set out at paragraph 6 of the prosecution opening.

8     During the course of this message exchange, Ms Ayre put her two children into her car and left the Wendouree property at 9.03 pm, driving to Deer Park to collect Mr McGinley.  Ms Ayre was concerned that if you attended at her address, you might cause trouble.  Whilst she was away from the property, you gained access to the property without Ms Ayre’s express or implied authority and waited there for her to return. 

9     Shortly after 11.00 pm, Ms Ayre arrived back at the house in the company of Mr McGinley, who had brought with him a baseball bat as protection, just in case there was trouble, so he could protect himself.

10    After scanning the area and informing Mr McGinley that it appeared you were not there, Ms Ayre proceeded to park the car at the rear of the address and unlocking a door to the property before returning to get the children out of the car.  Meanwhile, Mr McGinley grabbed his bag, jumper and baseball bat from the car and walked into the rear of the house, followed shortly afterwards by Ms Ayre.  Upon entering the home, Mr McGinley struck you to the head with the baseball bat, with you retaliating and the two of you then started fighting. 

11    You tried to drag Mr McGinley from the house.  When he resisted, you kicked him in the right ribs whilst he was on the ground.  Ms Ayre moved towards you and pushed you off Mr McGinley towards the back door, where you remained standing.  Ms Ayre was trying to calm you down, but you began to verbally abuse her, essentially saying that she was meant to be with you and not with Mr McGinley.  You then turned your attention to Ms Ayre and began to argue with her, with Ms Ayre ultimately telling you that you needed to leave.  You then grabbed Ms Ayre and tried to bear hug her and to kiss her, and you began to wrestle before Ms Ayre wriggled out from your grip and she then said to you, 'No, we’re done, like, that’s it'.

12    You then moved to the kitchen and grabbed a serrated knife from the kitchen island bench, before turning to Ms Ayre, saying, 'Watch what I'll do now then'.  You then began chasing Mr McGinley.  The two of you circled around the island bench several times, with Ms Ayre trying to stop you from attacking Mr McGinley and on a couple of occasions you grabbed her by the throat and pushed her away.  At one point Ms Ayre succeeded in briefly pinning you down onto the couch near the L-shaped end and tried to hold you down so that Mr McGinley could escape.  At this point you moved the knife towards Ms Ayre’s hand but stopped short of stabbing her.  You then pushed Ms Ayre in the shoulder to get her off you and managed to get up off the couch.  Ms Ayre was screaming at you to stop but you continued to focus on Mr McGinley who then tried to make his way out the front door.  Your conduct with regards to grabbing Ms Ayre and pushing her away and moving the knife which you were holding towards Ms Ayre’s hand but stopping short of stabbing her forms the basis of Charge 1 on the indictment, common law assault.

13    You then ran towards Mr McGinley, who pushed you with the bat.  You managed to stab Mr McGinley in the back of his neck with the knife, causing Mr McGinley to drop the bat.  You then stabbed him in the back below his left shoulder causing him to fall to the ground.  You then fell on top of Mr McGinley and stabbed him again in the right side of his stomach before delivering two stabs to Mr McGinley’s left leg, in total stabbing Mr McGinley five times, causing a one centimetre deep wound in the neck, a three centimetre deep wound in the left thorax, that is back below his left shoulder, a two centimetre wound in the right flank or abdomen, and a two centimetre and four centimetre wound in the left thigh. 

14    Once you had stopped attacking Mr McGinley you stood up and froze for a second before saying, 'What the fuck', and you then started to clean up the blood with a towel.  Ms Ayre told you to just go and you walked out the back door, with the last thing you said to Ms Ayre being, 'I'm going to go away for this'.  After you left the house Ms Ayre called triple zero to report the stabbing, and you also called triple zero and spoke to the police.  Your conduct with regards to stabbing Mr McGinley forms the basis of Charge 2 on the indictment, recklessly causing serious injury.  Your conduct in entering Ms Ayre’s house without permission and waiting there for her, fighting with both Ms Ayre and Mr McGinley inside the house, and stabbing Mr McGinley in the presence of Ms Ayre forms the basis of Charge 3 on the indictment, contravention of a Family Violence Intervention Order intending to cause harm or fear for safety. 

15    You were intercepted by police a few houses away from your offending with a towel held up to your head which had been bleeding.  In a recorded conversation with police officers at the scene, you essentially referred to stabbing Mr McGinley in self-defence.  You were transported to Ballarat Base Hospital where you were treated for a head injury before being discharged on 19 December 2019.

16    You were then arrested by police and transported to the Ballarat Police Station where you participated in a record of interview, making various admissions to stabbing Mr McGinley after he had struck you with the baseball bat.

17    Your primary victim, Mr McGinley, was seriously injured as a result of your offending.  Following the incident, he was initially treated by Ambulance Victoria officers on site, to control a life-threatening stab wound at the haemorrhaged site.  Once stabilised, he was transported by ambulance to Ballarat Hospital Emergency Department where he was assessed as requiring a trauma transfer to the Alfred Hospital in Melbourne.

18    Mr McGinley was transferred to the Alfred early the next morning, where he was assessed as having various internal injuries, namely a horizontal non-displaced fracture of his C3 vertebrae with bone fragment present in a spinal canal, an adjacent spinal cord contusion or laceration, and internal bleeding between his colon and abdominal wall due to a penetrating stab wound in his abdomen.  He underwent surgery at the Alfred Hospital on 17 December 2019, including a trauma laparotomy for the penetrating right flank wound, a two-layer repair of his mid ascending colon perforations, exploration and closure of his left neck wound, and wash out and closure of the left thigh, left leg and right flank wounds. 

19    Following his surgery, Mr McGinley was taken to the Intensive Care Unit, and remained at the Alfred Hospital for six further days, before being discharged on 24 December 2019. 

20    He was required to wear a collar around his neck to stabilise his spine for six weeks.  On 8 January 2020, on review from the Alfred Hospital’s Department of Neurosurgery, Mr McGinley was confirmed to still have some difficulties with his fine motor skills which were still improving, ongoing pain and temperature sensation deficits in his left arm and leg, and mildly decreased sensation on the right and absent pain and heat sensation on the left. 

Impact on the Victims

21    Ms Makayla Ayre, who was present remotely at your plea hearing on 3 May 2022, declined an invitation to prepare a Victim Impact Statement in this matter.

22    A Victim Impact Statement from Mr Leo McGinley, made on 20 April 2022, was tendered at your plea hearing and marked Exhibit 2.  At the request of Mr McGinley, the Victim Impact Statement was not read aloud in Court, although I have read its contents carefully.  In the interests of protecting Mr McGinley’s privacy, I will not now detail the contents of that report, save to say that Mr McGinley has clearly been profoundly impacted by your offending.  Those impacts extend beyond the immediate and more long-term physical impacts of the crime, to social and psychological impacts and financial impacts including lost work opportunities. 

23    Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often longstanding and catastrophic impacts of crimes upon them.  In formulating an appropriate sentence in your case, I have taken into consideration as one of the relevant sentencing factors the impacts of your offending on your victims.

Nature and Gravity of the Offending

24    Your offending with regards to Charge 1 on the indictment, common law assault upon Makayla Ayre, must in my view be seen as a serious example of this crime.  Ms Ayre was your ex-partner, and the mother of your young child.  Your attack upon her took place in the sanctity of her home, in the evening.  Ms Ayre had made clear to you through the earlier messages that you were not welcome.  Just two short weeks prior to this offending, you had been made the subject of a court order prohibiting you from engaging in family violence with regards to Ms Ayre.  That you would engage in such family violence in these circumstances highlights the seriousness of your conduct with regards to Charge 1.  Faced with your violent demeanour inside her property, Ms Ayre was trying to calm you down, and instead you verbally abused her.  The words uttered by you towards Ms Ayre clearly showed your inability to accept that the relationship was over, and your resulting violence towards Ms Ayre in these circumstances constitutes a concerning example of family violence.  Whilst you did not make contact with Ms Ayre’s hand with the knife you were holding, your conduct in moving the knife towards her hand, after having grabbed her by her throat and pushed her away is extremely concerning. 

25    Likewise, in all the circumstances I regard your conduct forming the basis of the recklessly causing serious injury charge with regards to Mr McGinley as representing a very serious example of this crime.  Whilst Mr McGinley it seems initially struck you to the head with the baseball bat upon realising that you were inside Ms Ayre’s property, this in no way excuses what followed.  You engaged in sustained and determined conduct, in my view, with regards to Mr McGinley, trying to drag him from the house against his resistance, kicking him in the ribs whilst he was on the ground, resisting Ms Ayre’s attempts to de-escalate the situation, and chasing Mr McGinley around the island bench several times, before finally stabbing Mr McGinley.  Whilst I accept that your conduct in repeatedly stabbing Mr McGinley was not planned, with you picking up the knife from the kitchen bench area after this incident had commenced, your comment to Ms Ayre, 'Watch what I’ll do now then', after picking up the knife reveals a concerning level of determination and foresight on your part, which accentuates the seriousness of your subsequent conduct with regards to Mr McGinley. You stabbed Mr McGinley five times to the body, very much accentuating the seriousness of your conduct.  Likewise, your use of a weapon with a blade is a significant aggravating factor, as such a weapon is extremely dangerous, and is capable of causing both serious injury and death.[4]

[4]         Hamid v R [2019] VSCA 5 at [42-43], [74]; Lukudu v R [2019] VSCA 248 at [35-36]; Ranger v

R [2018] VSCA 271 at [84-85].

26    This was clearly determined conduct on your part.  You stabbed Mr McGinley to the neck, a vulnerable part of the body, before stabbing him in the back.  Once Mr McGinley had fallen to the ground, and whilst he was in a vulnerable position, you then stabbed him in the stomach, before stabbing him twice to the leg.  Whilst this all may have only taken a minute or two, as your Counsel appropriately described it, this was a ‘brief frenzied attack.’ As outlined in the Amended Summary of Prosecution Opening, the injuries caused to Mr McGinley were very significant, with the neck injury resulting in a fracture to a bone in Mr McGinley’s neck and an injury to the spinal cord, and the penetrating injury to Mr McGinley’s large bowel requiring urgent surgical repair.  Over a year and a half after the incident, Mr McGinley clearly still suffers from the consequences of your assault upon him.  The impacts of your offending upon Mr McGinley have been extremely significant.  In all the circumstances, your conduct must in my view be seen as a very serious example of the crime of recklessly causing serious injury.

27    Finally, your conduct with regards to Ms Ayre and Mr McGinley all occurred in the context of you being prohibited from engaging in family violence by virtue of the Family Violence Intervention Order imposed upon you just two weeks prior to the incident.  There is a need for care, in my view, to avoid double punishment with regards to the other charges on the indictment.  The gravamen of your criminality with regards to Charge 3, contravention of a Family Violence Intervention Order, relates to you engaging in serious family violence, intending to cause harm or fear for safety, in contravention of a court order prohibiting such conduct.  Your criminal history which involves breaching court orders on multiple occasions, in my view, accentuates the seriousness of your conduct in this regard.

Personal Circumstances

28    You are now 32 years of age.  You have lived for most of your life in the Melton area and Ballarat.  You are the father of five children, a young daughter Miley with your ex-partner Ms Ayre, and four children from a previous relationship with a woman named Hayley, aged between 12 years and five years.  Up until your recent remand in custody, you were apparently seeing these children regularly, with the older children sometimes staying overnight at your house.

29    The details of your upbringing were set out in the report of psychologist, Gina Cidoni, dated 12 April 2022, Exhibit B at your plea hearing.  Your childhood was it seems marked by instability and violence.  Your father was an alcoholic and a cannabis user who was both verbally and physically abusive towards you, with you apparently sustaining many severe injuries as a result.  Your parents separated when you were six, and you preferred living with your mother, though sadly she suffered a stroke when you were nine years of age, resulting in you and your two siblings moving between your father’s home and your grandparents’ homes.  Your mother is still alive and has been residing in a nursing home for the past 23 years.  You apparently ceased all contact with your father from the age of 17.

30    After being educated to the start of Year 11 level, you have worked on and off over the ensuing years, mostly in the manual labour industry, doing factory work, carpentry and handyman work.  Approximately four months prior to your recent remand in custody you commenced a carpentry business with a friend full-time.

31    You began drinking alcohol in your mid to late teenage years, which escalated to excessive daily drinking throughout your twenties.  You have stated to Ms Cidoni that your alcoholism affected your ability to maintain employment and had a significant impact on your life.  In one sitting you would consume at least one bottle of spirits.  You apparently ceased consuming alcohol before being initially remanded in custody following this offending.  You also have a history of cannabis consumption, starting in your late adolescent years, and this was apparently a daily habit until you cut back at the age of 25.  Again, you have apparently ceased consuming cannabis since your remand in custody.  You began using methamphetamine at the age of 26 which you started after your relationship breakdown with Hayley, and this continued until the age of 28.  You apparently went back to drinking alcohol and smoking cannabis after getting off the methamphetamine. 

32    In terms of your mental health history, you were apparently diagnosed with anxiety and depression at the age of 17, and you are prescribed Avanza and Paroxetine, which you take daily.  You have also previously been prescribed Clonazepam to treat a diagnosis of borderline personality disorder.  In 2011, you were admitted to Sunshine Hospital psychiatric ward for two weeks in the context of a drug induced psychosis.

33    You have a criminal history which largely dates back to 2017, which you have instructed approximately correlates with the end of your relationship with Hayley, and your resulting deteriorating behaviour in the context of drug and alcohol consumption.  In February 2017, you received a Community Correction Order with conditions relating to drug and alcohol use, together with mental health assessment and treatment, for dishonesty offending.  That order was breached in 2018, resulting in a further Community Correction Order.  The offending which formed part of that breach included unlawful assault and resist emergency worker on duty.  A short term of imprisonment was imposed in addition to the Community Correction Order.  Later in 2018 you received another Community Correction Order for offending which included recklessly causing injury and unlawful assault.  Subsequent to that, you have been dealt with for further breaching a Community Correction Order, in 2019.  Your criminal history also includes prior convictions for cannabis and methamphetamine.  In relation to your prior conviction for recklessly causing injury, your counsel indicated that that offending occurred in the context of violence whilst drunk.  You have instructed that this period of offending from 2017 and onwards occurred in the context of your escalation to harder drugs such as methamphetamine following the breakup of your relationship with Hayley.

34    You were apparently in a relationship with your first victim, Ms Ayre, for about one year prior to the offending, and this relationship ended a matter of weeks before your offending.  You left the home following the incident giving rise to the Family Violence Intervention Order, and obtained emergency accommodation nearby to Ms Ayre, and you apparently maintained regular visits with your then infant child, Miley.  You informed Ms Cidoni that you had consumed two cans of bourbon earlier in the night of the offending.  Through your counsel you indicated that you had a hazy memory of the offending, and whilst your limited alcohol consumption does not, in my view, adequately explain this, I note that you were struck to the head by a bat by Mr McGinley, which may explain your limited recall of your offending.  According to Ms Cidoni, upon assessment you presented with the clinical conditions of Post-traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, and Persistent Depressive Disorder.[5]  According to Ms Cidoni, your trauma exposure in your formative years at the hands of your father, with severe family violence exposure, affected your formation and engendered a sense of hopelessness, confusion and disorganisation.  These disorienting states stirred intense emotional reactions and the feeling of being psychologically overwhelmed and overloaded.  According to Ms Cidoni:

“The offending circumstances may have retriggered PTSD as these symptoms were prominent in his profile.”[6]

[5]Psychological Report of Gina Cidoni dated 12 April 2022 at [74].

[6]Ibid at [75].

35    Likewise, according to Ms Cidoni, your ADHD symptoms along with turbulent personality traits result in impulsivity and hyperactivity linked to being emotionally reactive and vulnerable to stress and change.[7]  These conditions, according to Ms Cidoni, in combination produce negative emotional reactions which tend to persist for long periods and diminish your ability to think clearly, make decisions, and cope effectively with stress.[8]  According to Ms Cidoni:

“At the time of the offending, there were multiple psychosocial stressors and acute mental illness. These experiences with his presentation resulted in a lowered ability to exercise appropriate judgment, make calm and rational choices, think clearly, and control his behaviour where the application of Verdins should be considered.”[9] 

Level of Culpability and Responsibility for the Offending

36Your counsel submitted, based upon the opinions of Ms Cidoni, together with the background neuropsychological assessments of Martin Jackson from 2018[10] and more recently Dr Jacquie Evans-Baker[11]  that your moral culpability for the offending was reduced due to your impaired mental functioning, pursuant to the well know Verdins[12] principles. In relation to your overall intellectual functioning, the picture obtained from the two neuropsychological reports, which were some four years apart, is a consistent one of a man with some cognitive difficulties, and an overall level of intellectual functioning within the lower extreme of ‘low average'.  In particular, as a result of the opinions expressed by Ms Cidoni regarding your PTSD, ADHD and depressive illness and the impact upon your behaviour at the time of the offending, I am prepared to make some mitigatory allowance with regards to your moral culpability for your offending. However, in my view, your level of culpability remains significant for this very serious, violent conduct. Likewise, your criminal history, which includes breaching court orders, and matters of violence, accentuates your level of responsibility for this conduct. Whilst I accept that the assault upon you by Mr McGinley with the bat no doubt influenced your subsequent conduct, there was a gap in time between this act and your stabbing of Mr McGinley, and on any analysis your reaction was a gross and unjustifiable reaction to it. Whilst to some degree your impaired mental functioning also somewhat reduces the application of general deterrence, pursuant to Verdins principle three, in my view general deterrence nevertheless remains a very significant sentencing purpose in this case. In my view, your conduct was significantly borne of your inability to accept the end of your relationship, and your decision to enter Ms Ayre’s property, and then engage in serious family violence, and then serious violence towards Mr McGinley, warrants a penalty that sends a clear message to other like-minded individuals that such abhorrent conduct will not be tolerated.

[7]Ibid at [76].

[8]Ibid at [78].

[9]Ibid at [80].

[10]         Neuropsychological Report of Mr Martin Jackson dated 13 February 2018.

[11]         Neuropsychological Report of Dr Jacquie Evans-Baker dated 17 May 2022.

[12]          R v Verdins & Ors (2007) 16 VR 269.

Applicable Sentencing Factors, Principles and Purposes

37    As appropriately highlighted by your counsel at your plea hearing, there are a number of mitigatory factors relevant to sentencing in your case. 

38    You offered to plead guilty to the charges on the indictment as early as 21 January 2021, with this offer then being rejected by the prosecution.  Your matter formally resolved on 15 March 2022, and the matter was listed for a contested plea with regards to whether or not Mr McGinley first struck you with the bat, with this matter proceeding as a plea hearing on 3 May 2022, upon the prosecution accepting this to be the case.  In those circumstances, notwithstanding that a contested committal hearing took place on 23 September 2020, a sentencing discount is warranted for your plea of guilty, which was indicated by you quite early in the proceedings.  As is now well established, the utilitarian benefit of your plea of guilty is very much enhanced, as it occurred in the context of the COVID-19 pandemic and the extraordinary pressures upon the administration of criminal justice in this state, with excessive court backlogs.[13]  In these circumstances, an enhanced sentencing discount due to your plea of guilty is warranted.  Your plea of guilty has obviated the need for your victims to give evidence at trial.  Considerable time has been saved.  Your plea of guilty reflects your acceptance of wrongdoing and your willingness to facilitate the course of justice.

[13]         Worboyes v R [2021] VSCA 169.

39    I am also satisfied in the circumstances of your case that your plea of guilty reflects genuine remorse on your part for your offending. Consistent with a positive finding regarding remorse, you rang triple zero as you left the property after your offending and spoke to police, and were located by police soon after, just a few houses away, rather than simply offending and then leaving the scene.  You gave evidence before me at your plea hearing on 3 May 2022.  You then indicated that you were ashamed of your actions and had a lot of regret with regards to the injuries sustained by Mr McGinley.  When asked how you felt about the impact of your conduct on Mr McGinley, you said that it was hard for you to live with what you had done.  In my view, you were honest, conscientious and remorseful in your evidence with regards to your attitude to your offending, and your rehabilitative efforts whilst on bail. A further sentencing discount is warranted due to your remorse.

40    As indicated by your counsel, there has been a significant delay in the finalisation of your case.  Your offending occurred in December 2019, almost two and a half years ago.  You spent some nine months in custody before being granted bail at your committal hearing in September 2020 and remained on bail until 3 May 2022.  You have, therefore, lived with the understandable anxieties attendant upon your fate being unknown for a considerable period of time. 

41    Importantly, I accept that in the intervening period you have largely progressed well with regards to your rehabilitation.  Save for a relatively minor recent infraction for possession of cannabis and it seems Xanax, you have remained offence free.  You undertook a number of courses whilst in custody prior to being granted bail in September 2020, and certificates to that effect were tendered at your plea hearing.  Upon being granted bail, you have it seems complied with strict bail conditions for an extended period of time between September 2020 and May 2022.  This has all occurred in the context of you unsurprisingly not having any contact with your young child, Miley.  To your credit, you have embarked upon various rehabilitative efforts.  There are letters tendered on your behalf from the Ballarat Community Health organisation attesting to your positive rehabilitative progress with regards to drug and alcohol counselling and abstinence.  A urinalysis certificate dating from January 2021, apparently in the context of departmental involvement with regards to your children, was clear of any illicit substances.  Supportive character references were tendered on your behalf at your plea hearing, including one from the mother of your four children, Hayley Stewart, from May 2021.  An extremely supportive character reference was provided by Mr William Kennedy at your plea hearing, indicating that since February of this year you have both been subcontracting for a sign company, Signcor, where you had been regularly working prior to your ultimate remand in custody.  In your evidence before me, you indicated that you had saved money and acquired a rental property in Albion for some time into the future.  You indicated that you had been having regular contact with your children, with the exception of Miley, that you were realistically prepared for a custodial term, and you were able to articulate modest but reasonable plans for the future, involving employment, accommodation, and reintegration into your children’s lives.  In the context of a lengthy delay, I am satisfied that you have used your time productively, such that your prospects of rehabilitation remain reasonable, notwithstanding your troubled history and the gravity of your current offending.  Indeed Ms Cidoni opines that you represent a medium risk of reoffending.[14]  You have re-entered the custodial environment in the midst of the COVID-19 pandemic.  Whilst recent signs of progress generally with regards to the pandemic have been promising, I have little doubt that the custodial environment remains a challenging one, with well recognised restrictions on prisoner freedom of movement, access to visits, access to employment, and access to various therapeutic activities.  Indeed at your further plea hearing on 19 May, your counsel indicated that you had found your return to custody difficult, having just completed the mandatory two-week isolation due to COVID-19 protocols in the custodial setting. A mitigatory allowance is warranted due to COVID-19 and its impacts on the custodial environment.  In your case in particular, according to Ms Cidoni there is a concern that imprisonment will exacerbate your mental illness and will present a major risk to you.  According to Ms Cidoni:

“His mental illness would result in high stress and reactivity, and hypervigilance where he would feel a greater burden in prison because of this tense environment.  As he is prone to depressive episodes, and with his limited coping resources, he would deteriorate quickly.”[15]

[14]Psychological Report of Gina Cidoni at [82].

[15]Ibid at [84].

42    As conceded by the prosecution, a further mitigatory allowance is warranted therefore in accordance with Verdins principles 5 and 6.

43    In formulating an appropriate sentence in your case, I have taken into consideration, as one of the relevant sentencing factors, current sentencing practices. In that regard, the prosecution provided a previous decision said to be relevant on this issue, Donnelly v R,[16] a case involving a stabbing in the context of a domestic scenario, and I have considered that decision in the context of current sentencing practices more generally. Perhaps highlighting the complexity associated with a comparative analysis, that decision, which originally involved a charge of attempted murder in the Supreme Court before resolving to a plea to recklessly causing serious injury in that jurisdiction, involved considerably more serious injuries than here. The victim in that matter was left in a critical condition as a result of stab wounds to the upper abdomen, went into cardiac arrest due to his injuries, required resuscitation before being intubated, required multiple life saving surgical interventions, and spent five weeks in the intensive care unit. Conversely, the offender in that matter had, in my view, a clearer application of the relevant Verdins principles, as he had an intellectual disability, with an extremely low IQ of 55, which impacted on his decision making, and made incarceration more onerous. While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past,[17] and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly, sentences for similar conduct to that which you have pleaded guilty to, particularly in recent years, have involved significant sentences of imprisonment of some years' duration.

[16] [2021] VSCA 109.

[17]        Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [83].

44    Any sentence I impose must, in my view, reflect and give appropriate priority in the sentencing synthesis to the sentencing principles of denunciation of your serious misconduct, general deterrence, and community protection. Given your criminal history, specific deterrence remains important, notwithstanding your plea of guilty and remorse. The facilitation of your rehabilitation remains an important purpose, and in my view this can be facilitated through an appropriate parole eligibility component to your sentence.

45    I have concluded that, consistent with the parsimony principle - that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed, nothing less than a sentence of imprisonment of some length is warranted.

46    In my view, there must be a moderate degree of cumulation between the charges, reflecting the distinct criminality, subject to the overarching principle of totality.

Sentence to be Imposed

47    On Charge 1 on the Indictment, common law assault, you are convicted and sentenced to 12 months' imprisonment.

48    On Charge 2 on the Indictment, recklessly causing serious injury, you are convicted and sentenced to four years and nine months' imprisonment. This is the base sentence.

49    On Charge 3 on the Indictment, contravention of order intending to cause harm or fear for safety, you are convicted and sentenced to 12 months' imprisonment.

50    I order that three months on Charge 1 and three months on Charge 3 be served cumulatively on each other, and on the sentence imposed on Charge 2, making a total effective sentence of five years and three months' imprisonment.

51    The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate.  A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. In your case, I order that you serve a period of three years and four months before becoming eligible for parole.

52 Pursuant to s 18(4) of the Sentencing Act 1991, I declare a period of 305 days has been served by way of pre-sentence detention. This amount will be administratively deducted from your sentence.

53 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, had you pleaded not guilty but been found guilty by a jury, I would have imposed a total effective sentence of seven years and six months, with a non-parole period of five years.

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