Director of Public Prosecutions v Karisson
[2010] VSC 195
•14 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW WILLIAM KARISSON |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2010 | |
DATE OF SENTENCE: | 14 May 2010 | |
CASE MAY BE CITED AS: | DPP v Karisson | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 195 | |
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CRIMINAL LAW – Sentencing – Intentionally cause serious injury – Stabbing own brother – History of difficult relationship – No previous convictions for violence – Prospects of rehabilitation – Family circumstances.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr DA Brown | Office of Public Prosecutions |
| For the Accused | Mr P Dunn SC | Stephen Andrianakis & Associates |
HIS HONOUR:
Andrew William Karisson, you have pleaded guilty to one count of intentionally causing serious injury to your brother Brett William Karisson on 9 November 2008. The maximum penalty for the offence to which you have pleaded guilty is 20 years imprisonment.
In addition you have, through your counsel, admitted prior criminal offending. From some twelve court appearances between 1995 and 2007 your history includes a number of drug offences the most serious of which was conspiracy to cultivate a drug of dependence for which you received a wholly suspended sentence of 12 months’ imprisonment. You were also sentenced to a period of imprisonment for driving offences which was also wholly suspended. You have no previous convictions for offences of violence but, as a matter of some concern, your most recent prior conviction in June 2007 was for possession of a prohibited weapon.
Circumstances of offending
This offence occurred during the afternoon of 9 November 2008 when you inflicted something of the order of 16 separate knife wounds on your brother. This occurred at your parents premises where your brother and his girlfriend had been living. You lived at separate nearby premises with your partner and son.
The relationship between you and your brother, who is four years younger than you, has been difficult for a long time. Your mother’s evidence before me on your plea indicated that your brother suffered from ADHD and depression as a younger person which appeared to cause difficulties in his educational progress. Your mother also described difficulties in your relationship with your brother. At the committal proceedings she said that these problems had been there for about eight years. Before me, she catalogued a large number of violent incidents in which he had been involved aimed at her and the premises in which your parents lived. Thus, the circumstances within your family have been difficult, not only for your parents but for you. It is important to note that your parents are supportive of you.
In 2007 you began a relationship with Carly Galanos. In February 2008, you and she had a child and you began to live at premises at Wamba Street in Bentleigh East which is close to your parent’s house where your brother lived. The birth of your child seemed to lessen the tension between your family but the unchallenged evidence is that your brother became somewhat obsessive about your child. A christening for your child was proposed for December 2008 and your brother was to be invited, but he became demanding about being the child’s godfather.
On the day this offence was committed, the evidence indicates that Brett visited your premises and spoke to Carly Galanos. You were not present at this stage. Her evidence is that he was demanding to see the child and was trying to jump the fence to achieve that result. She refused to let him see the child. Angered by that refusal, Ms Galanos’ evidence is that your brother made threats to kill directed at her and others in the family. You then arrived at home at which point Ms Galanos was answering a phone call from Brett. Her evidence is that you grabbed the phone and said to your brother, “Don’t worry – just forget about ever seeing [the child] again”. You told police in your record of interview that you regarded Brett’s conduct as harassment of your partner.
Shortly after this you went to your parents house where Brett was. You told police you went around there following a demand from your brother and when you got there you went inside and went to get a drink from the kitchen. You claimed Brett came at you with a knife. In his statement, Brett Karisson said that you simply arrived asking for your mother. He claims you produced both a knife and a small handgun which he described as a “black little snub nose revolver”.
The prosecution opened the case on your plea on the basis of what Brett Karrison had told the police. In effect, the prosecution case is that in the kitchen of the premises, Brett Karisson asked you what you had in your pocket at which point he said you produced a knife. After he urged you to relax, he claimed that you then produced the handgun to which I have referred. It is claimed that you then threatened to kill Charmaine Boudoloh – your brother’s partner. I rather assume that the prosecution contend that some attempt was made to fire the gun because Brett said he heard it go “click”. However, as Mr Brown of counsel for the prosecution acknowledged there is no count on the presentment dealing with that allegation concerning the firearm. Given the conclusion I have come to, nothing further needs to be said about it except that the allegation has no role in the sentence I will impose on you. According to the original allegations, it was after these incidents that you are alleged to have stabbed Brett and continued to stab him after he fell to the floor.
Your account of this incident was given in your record of interview which was held on 9 November 2008. You said that you and your brother had a dispute over some three years which had lessened to some degree. However, you claimed that he had been harassing your partner on the day this incident occurred and when you arrived home she told you about it. Later you went to your parents’ house at 26 Lesden Street where he lived and went inside to the kitchen to get a drink. You said there was then a conversation about why he could not see your son and then you said your brother came at you with a knife which you then grabbed. You claim that he then went for another one and then you stabbed him and left the premises. You said you sustained some cuts to your hand when you grabbed the knife from him. You told the police that you were concerned about being struck in the vicinity of a surgical wound. The evidence before me does indicate that you had bowel surgery in 2008 and a colonoscopy bag was inserted between 9 and 16 October 2008. There was then apparently a reversal of that surgery to remove the colonoscopy bag which was followed then by some problems with the surgical wound. At the time of this incident on 9 November 2008, you were on medication being oxycodone and had problem with the sutures for the wound across your stomach.
The medical evidence is that when Brett Karisson was examined he was seen to have two wounds to the front of his chest, one on the lower right side of the abdomen, three on his right leg, five on his right arm and four on his back. Thus, there were a large number of wounds.
Mr Dunn submitted on your behalf that of the wounds which you inflicted on your brother, three were penetrating wounds and the rest, he submitted, were “slashes”.
On your behalf, Mr Dunn also submitted that I should conclude that you did not attend at your parent’s house armed either with a knife or a handgun but that shortly after your arrival you were confronted by your brother with a knife which you were able to seize from him and then, having gained control of the situation, stabbed him a number of times in circumstances which were well beyond any lawful justification or excuse.
The prosecutor, on the other hand, submitted that I should sentence you on the basis that you took a knife to your parents place. Although the prosecutor opened the case on the basis of a narrative which included the allegation that you produced a handgun which was heard to click, he appeared to abandon that aspect on the basis that since you are not charged which any offence concerning a firearm, you could not be sentenced for it.
If you armed yourself with a knife prior to going to your parents house, your culpability for this offence would be greater since it would tend to undermine any claim you made that you were attacked by your brother first. In order for me to sentence you on that basis that you went to the premises armed with a knife, I would need to be satisfied beyond reasonable doubt that you did so.
The prosecutor, Mr Brown submitted that I should conclude you initiated the incident by attacking your brother with a knife. He argued that if your brother had that knife in his hand, and you grabbed it with such force as to cause him to let go of the knife, greater injuries to you would be expected than those you did sustain. Also he submitted that your assertion of seeing your brother, once dispossessed of the first knife, going for another one is very unclear. He referred to the version given by your brother that he started kicking at you to keep you away and suffered stab wounds to the thigh area consistent with that. He also suffers a wound in the back consistent with going for the door and being stabbed in the back.
The submissions have merit but on all the evidence I am not satisfied beyond reasonable doubt that you armed yourself with a knife before going to your parents. Your given reason for going to see your brother corresponds with the incident which, it is common ground, occurred before you arrived at home concerning your wife and young son. Further, your brother has a history of violent outbursts and his previous convictions which were tendered on your plea indicate that he has a number of convictions for offences of violence. Your mother said in evidence that the only time she had seen you in any way violent toward your brother was in retaliation for aggression on your brother’s part. In their description of what occurred, you were described by your brother and his girlfriend as having had a gun in one hand and a knife in the other. When you were interviewed by police on the evening of these events you described your brother coming at you with a knife.
In those circumstances, I sentence you on the basis that you were not armed when you went to your parent’s premises and the incident occurred essentially as you have described in your record of interview. There is no question that your actions went well beyond what was required in defence of yourself from the initial attack by your brother. So much is demonstrated by the extent of his injuries as opposed to yours.
It seems clear enough to me that what occurred was the last violent stage in a long history of hostility between you and your brother and between him and your parents.
The circumstances are explanatory of how this most unfortunate incident came to occur. However as your plea demonstrates you understand, they do not justify what you have done. You have inflicted multiple serious stab wounds on your brother in circumstances where, on your own account, you had a significant degree of control of the situation. Having inflicted those wounds, you then departed.
Plea of guilty
On your behalf it has been put that you have pleaded guilty and done so once the prosecution did not seek to persist with a charge of attempted murder.
Your plea of guilty may be regarded as representing a degree of remorse and recognition of your responsibility for the serious injuries which you inflicted on your brother.
Victim Impact Statements
Brett Karisson and his girlfriend Charmaine Bodolouh have both produced victim impact statements. No doubt having been stabbed a large number of times with the consequent serious medical treatment and emotional aftermath was a significant issue for Brett Karisson. I take into account in sentencing you the significant physical and emotional consequences of the injuries you have inflicted.
However, as has been pointed out by your counsel in his submissions, it would appear that the claimed financial loss consequent upon their description of not being able to return to their home – being the home of your parents – is open to considerable question.
I am informed by Mr Dunn, and it is not contradicted by the Crown, that after your brother was released from hospital he and his partner returned to live with your parents until they were evicted by police. Your brother is apparently charged with offences which include breaching and intervention order and assaulting your mother.
Personal circumstances
You were born on 29 April 1978 and are now 32 years of age. During your early years you had been educated in the Clayton/Murrumbeena area. You resided with your family until 2002 when you moved out of your family home to live with your then girlfriend. Problems with your brother apparently worsened thereafter although from time to time attempts were made to improve the relationship.
Apart from the personal matters to which I have already referred, your counsel relied on the fact that you are married with a child. You appear to have the support of your parents who have suffered as a result of the unfortunate psychiatric conditions that afflict your brother.
Prospects of rehabilitation
It is submitted on your behalf by your counsel that your prospects of rehabilitation are improved by the fact that you have a wife, child and the support of your parents who have supported you through this process. Mr Dunn also submitted that it has been resolved within the family that the situation that brought this incident about will not be duplicated by any of them again. I am told that the family will not permit you to be in a “one on one” situation with Brett ever again. Whether that is achievable remains to be seen but it does seem to indicate that not only you but your family want to avoid such an incident occurring again.
The sentence to be imposed
Your counsel has submitted that in recognition of the prospects of rehabilitation he submits you have I should impose a “smaller than normal” non-parole period. In the cause of that argument he also relies what he describes as the unusual matters at play in these circumstances. Given that the prosecutor takes no issue with the background circumstances for this offence as your counsel has presented it, I will give some effect to that submission.
It needs, however, to be remembered that the offence to which you have pleaded guilty is the most serious of the non-homicidal injury offences. As has been noted, this offence involves not only the fact of serious injury but also the intention to cause it.
I should indicate in relation to pre-sentence detention that as a matter of discretion I will take into account in fixing the sentence a period of your imprisonment between 9 June 2009 and 21 September 2009 which was not entirely connected with this matter. The prosecutor, Mr Brown, has indicated that period should be taken into account in the sentence to be imposed rather than being reckoned as time already served and I will adopt that approach.
For the offence of intentionally causing serious injury, you are sentenced to be imprisoned for four years and nine months. I fix a minimum term of two years and three months to be served before you are eligible for release on parole. I declare that the period to be reckoned as already served under the sentence is 224 days inclusive of today's date
Pursuant to s 6AAA of the Sentencing Act (1991) I declare that but for your plea of guilty the sentence I would have imposed would have been six years and I would have ordered that you serve a minimum of three years and 6 months before being eligible for release on parole.
I will make the retention and disposal order and the forensic order pursuant to s.464ZF of the Crimes Act sought by the prosecution.
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