Director of Public Prosecutions v Kesper
[2013] VCC 684
•31 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM KESPER |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 31 May 2013 | |
CASE MAY BE CITED AS: | DPP v. Kesper | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 684 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle | |
| For the Accused | Ms S. McCrickard |
HIS HONOUR:
1 Adam Kesper, you have pleaded guilty to one charge of recklessly causing serious injury and one charge of possess a drug of dependence. Those crimes carry maximum penalties of 15 years and one year respectively. You have also pleaded guilty to two uplifted matters of obstructing a police officer and interfering with the good order of a gaol, those crimes carrying maximum penalties of six months and a monetary penalty.
2 You are 26 years of age. You pleaded guilty in relation to a settled indictment and I accept that you have exhibited appropriate remorse. You must also, of course, get the utilitarian benefit of that plea of guilty.
3 You have no prior convictions, though you have one matter which I have been alerted to for which you received a Community Corrections Order in November of 2012. I will be referring to that matter again in a moment. Suffice to say that insofar as Corrections is concerned, and I have read a report from them, you have progressed well pursuant to that order and almost completed the work hours and are using the opportunities that it can provide.
4 Firstly, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes, that order having been made. I advise you that should you refuse to provide such a sample police may use reasonable force to take it from you. That order is made and handed down.
5 Normally in a matter such as this a sentencing judge starts with a description of the offending. In this particular matter I propose to start at a much earlier time than that. There has been quite a deal of discussion about the early and late childhood of you, Mr Kesper, and indeed discussion took place before court this morning. I think it is important, bearing in mind the dreadful consequences of your conduct on this particular night, that the circumstances, at least insofar as your mind is concerned, are set out.
6 I have before me a record of interview and also your father's statement, as well as a Victim Impact Statement. I also have a bundle of CISP reports and a report from Dr Andrew Carroll, a psychiatrist, and it is to those documents that I will make reference.
7 I make it very clear, as I did this morning, that I am obviously in no position to be making findings of fact as to what occurred in your early childhood. The psychiatrist's opinion is based on the assumption that what you told him is correct and obviously in this situation I am placing reliance on his opinion, and therefore in a sense, I suppose, accepting what you have told him. I make it clear that these sentencing remarks are not to be seen as any adverse finding against either of your parents.
8 You have reported that in your early childhood there was domestic violence which was witnessed by you over an extended period of time. There would appear to have been at least some substance abused by around about the age of ten. You saw a psychiatrist at that point, whose name was provided to me yesterday, though I have no material from him.
9 By the age of 14 your parents had separated in what would appear to have been, on any version, acrimonious circumstances. You have indicated that at about that age you were using substances and were having trouble with drugs. Your behaviour became far more problematic. You went to Queensland for a period of time, I am told, to live with your father and that did not work out and you, in effect, you have described, became homeless. You have been somewhat itinerant since then.
10 You were not brought to the attention of police until 2011. That involved an incident where you were in the city, you were clearly intoxicated on some substance or other and had an altercation with police. That was your first offending and as I understand it is the basis upon which you are now undergoing a Community Corrections Order.
11 Importantly, in 2009 you were involved in the Black Saturday fires. You had reached your early 20s with significant drug problems, significant alcohol problems, but had not fallen foul of police.
12 You described to Dr Carroll what occurred to you in those fires. You described to Dr Carroll the emotional and physical abuse, as you described it, as a child. You reported to him, and I have checked with counsel and this would appear to be correct, that on Black Saturday you were in a vehicle which was burned over, meaning that you and a co-worker were inside the cabin of the vehicle and surrounded by fire. You had no option other than to sit and wait for the fire to burn over you, and as you said to Dr Carroll, hope for the best. You recall the engine stopping because of lack of oxygen and the dreadful fear that each of you were going to die. You survived that incident but had to keep working for over 24 hours straight afterwards and kept working on fires for days after the episode. You described to Dr Carroll that you had witnessed the effects of the fire, including seeing at Callignee the corpses of people who had been burnt. You clearly found that extremely distressing.
13 Dr Carroll says that you recall that after that you began to use alcohol very heavily and your relationship with a girl broke down. You felt the need to avoid the bush and became persistently irritable and episodes whereby you smashed up property in episodic rages and sometimes hurt yourself but would not appear to have been violent to others. You sought help but were unable to find anything satisfactory.
14 Dr Carroll later opined that:
15 "His history of childhood trauma in the form of apparent physical abuse and emotional neglect would have made him especially vulnerable to the effects of subsequent traumatic events in terms of developing both post-traumatic stress disorder and depression, as well as predisposing him to maladaptive coping mechanisms such as substance abuse.
16 It appears in the wake of the 2009 bushfires he developed a serious post-traumatic stress disorder, as evidenced by intrusive recollections in the form of nightmares and intrusive memories. Avoidance symptoms in the form of feeling emotionally cut off from others and a subjective need to live away from the bush and hyper-arousal symptoms in the form of insomnia, poor concentration and irritability. This appears to have been in the background of seriously traumatic experiences during which he felt he was about to die and to which he reacted with intense fear, helplessness and horror.
17 As is often the case this was followed by a significant escalation in his substance misuse and his PTSD was clearly not adequately treated, his only treatment coming a year or so later in the form of anti-depressant medication. His psychiatric difficulties have subsequently gradually shifted in form into a constellation of problems indicative of a clinical depressive disorder, complicated by substance misuse and by some residual post-traumatic symptoms such as irritability and a chronic sense of embitterment."
18 He said later that embitterment is a profound sense of having been wronged and is often seen as part of a long-term post-traumatic syndrome. He went on to say that all those matters would have been operating on you at the time of this offending and indeed made a significant contribution.
19 That clearly brings into play the principles of Verdins, which I will not need to refer to again, not only in a sense of moral culpability but also in sensible moderation of general and specific deterrence, as well as clearly gaol would be a very, very difficult experience for you indeed.
20 In any event, that is the psychological circumstances in which you found yourself leading up to this particular night.
21 You had been having difficulties, and as I understand the material, were being evicted for non-payment of rent. You went to stay with your father. Your father in his statement said that he made it clear to you that there was to be no drug use and that there were to be rules. It would appear that you had been quite separate from each other for an extended period of time up until the two months leading up to this offending.
22 I do not know exactly what happened on that night of 12 October 2012. Your father's memory of it is vague, clearly because of the severity of the injuries that he suffered and perhaps alcohol, I do not know. You were interviewed within hours, and I will be reading that out in a moment as to what you perceived had occurred. What clearly did happen was that each of you were drinking, that a phone call was received from your mother - and I am not buying into that, clearly it was a precipitator, I think, of all this. You said that in the kitchen you punched your father to the head. He says nothing about that. In any event it moved outside where you say that you were pushing and shoving each other. I am of course at the moment operating off the Crown opening, I am not going to go beyond it.
23 You then struck your father, from behind, I would think, causing him to lose feeling in his arms and legs, and that may be problematic. He fell to the ground with his head striking the concrete, unprotected. Whilst on the ground, by your own admission, you continued to strike him and strike him to the head. As a result of this assault he suffered a number of injuries, including unconsciousness, multiple facial fractures, multiple lacerations, bruising and swelling. He was hospitalised and required surgery.
24 There was a further statement provided and also a Victim Impact Statement.
25 The injuries included open reduction internal fixation of the left zygoma, left orbital floor and bilateral left - it should be I think (indistinct). There was a subdural haematoma. The multiple fractures would appear to have all been, as I can follow this, on the left side. It could not be excluded that the fracturing, certainly to the full extent, may have occurred in hitting concrete - indeed I have seen the situation before. The fact of the matter remains that you have pleaded to recklessly causing serious injury, and I am most aware of it being recklessly, and you did continue to strike him, him clearly being in that state.
26 On any basis I accept that you would not have desired the long-term effects to have been what they have or the seriousness as they were but the fact of the matter is that in a sentencing proposition such as this you must accept at least a degree of responsibility for the ultimate consequence, even if it was one that would not have been wished for.
27 So far as those injuries are concerned there was a Victim Impact Statement from your father which outlines the ongoing concerns that he has had. He is here today and I have been now advised that he can now drive but continues to have obviously psychological and physical effect from it.
28 It is clearly a situation that has to be regarded as serious. I think the injuries are patently very serious and one has to be careful in a situation such as this not to let the consequence completely outweigh the other material. I have already indicated that Verdins applies here and accordingly general and specific deterrence will be moderated, though clearly there still must be denunciation and appropriate punishment. I think it is fair to say that these circumstances were very much situational.
29 You have reached the age of 26 with one other matter which involved an intoxicated altercation with police and I think that is the unique circumstances of this which have brought about the assault rather than some predisposition to extreme violence against members of the public.
30 You, on the night, gave, it would seem, varying descriptions of what occurred. In the record of interview which occurred at some time, the incident having happened at around about ten o'clock, the interview being around four o'clock, it would seem to me, you went into long detailed descriptions as to what you said had happened and I made it clear before I commenced to sentence that I do not necessarily find that this is fact but it clearly indicates shortly after the event what your state of mind was. In a paradoxical way it also indicates I think what is clearly a genuine form of remorse.
31 You said to the police: "I don't hate me father, I'm trying to build a relationship with him at the moment. Things got a bit out of hand, I am mortified about what I have done. As in me having control over that at the time, I didn't. He can press charges, he can do what he wants. He knows deep down this is just between me and him. It was never meant to get that bad, mate, and as I said he's pushed and he's pushed, and he's pushed for a long time. I don't know, I guess the young dog bites back a bit. It wasn't meant to be like this, not at all. I don't want to fight with him. I tried to avoid this fight by giving him a clip around the ear at the start saying 'hey, listen, I'm younger, I'm quicker, and you're pissed, mate, just leave it alone.' He goes outside, lights his cigarette, starts mouthing off again, I walk, shut up, pushes me, push him over and gets up with a lump of wood from the barrow in his right hand and that's it. Sorry mate, you can't do that, you can't do that. I watched him beat the fuck out of me mum for too many years, mate, I won't let him beat the shit out of me. He's been married three times, he's lost every single woman he's ever been with, he's a liar and he's a cheat and I know that and I'm not - when he comes into my face trying to tell me that he isn't, sorry, I'll admit to anything I've done that's why I sleep at night. That prick lives in a delusion and I won't be brainwashed as a part of it."
32 Whether that be true or delusional I have got no idea. The fact of the matter is it indicates, as has been agreed at the Bar table, a very embittered young mind.
33 Your father, when interviewed by police when he was able to be, said that: "Adam has been emotionally traumatised from the age of ten because of his mother leaving and breaking up the family. I think Adam is angry about what happened to him and I've seen him display unnecessary acts of anger when he becomes emotional. The rules were quite clear when Adam moved up he was to keep himself and his room neat and tidy and there was to be no drugs in the house."
34 Again, I do not know what that situation was way back then and it does not, for my purposes, make much difference. I obviously have not heard from your mother.
35 As I have indicated, I think those circumstances are very much situational. I am told that there is now an Intervention Order. The people from Community Corrections took the view that perhaps there should be exclusion but I do not see the point in that. This is not a court that resolves situations such as that, unfortunately, all I can do is impose punishment and endeavour to achieve some sort of rehabilitation, if that can be done.
36 I start from the proposition that your father - and this is something that you should listen carefully to - in his Victim Impact Statement and again through counsel today made it clear that he does not want you incarcerated despite the severity of what occurred to him. I am also told very properly by the prosecutor that your grandparents with whom you spent a lot of time over the years have the same view.
37 You have now had a drug and alcohol problem for a long time. Over the time since this occurred back in October of 2012, and for a short time prior to that, you have been very compliant with a Community Corrections Order. Indeed, as I have indicated, that report indicates that you have been doing well. I have had you assessed for the Community Corrections Order and you have been found acceptable.
38 You have no matters pending, and therefore at 26, with your problems, have this matter as well as that other much more minor matter.
39 Your counsel has pointed out to me that despite the circumstances in which you find yourself, and I am not going to repeat much more of what is in the psychiatric report other than it indicates a terror of going to gaol, you have not thrown in the towel, you have continued to seek help, you have continued to participate in counselling and to endeavour to rehabilitate yourself. It is often the situation where somebody is facing the very real prospect of a significant custodial sentence that they drop their bundle. You have not done that and it gives me confidence that you have the capacity to rehabilitate. If you rehabilitate I think the risk of you re-offending would be low indeed.
40 You have available to you accommodation in Maffra. You have a partner. She has been here and her father was here yesterday as well to support you. He is able to offer you, if you are not incarcerated, employment.
41 The circumstances here are ones that courts find extremely difficult to deal with. Obviously the victim of a crime does not dictate what the punishment is to be, however, it does indicate that there is a desire for you to rehabilitate and a desire for you to get over the difficulties that you have. I make it clear for about the fifth time; I am not buying into the reality of all those difficulties but whatever they are they have to be dealt with.
42 The Crown's submission was that a custodial sentence was appropriate. The range that they gave me fitted within what would have been capable of being suspended in any event. I am well aware of the decision of Markovic. Justice of Appeal Nettle said that where a sentence fits within the capacity to be suspended it would be, other things being equal, unusual where it would become manifestly inadequate by reason of such suspension.
43 Suspended sentences are in the process of being abolished and have been abolished for this particular crime. What has been created over the last year or so are what are known as Community Corrections Orders.
44 In the Second Reading Speech for Community Corrections Orders the Attorney said this:
"The purpose of the CCO conditions is to allow a court greater flexibility to impose a less restrictive order than imprisonment where appropriate, potentially leading to a reduction in sentences of imprisonment with advantages such as the promotion of the offender's rehabilitation and the preservation of family and community ties. This supports the broader purpose of the Sentencing Act to prevent crime and promote respect for the law by providing sentences that deter re-offending and allow the court to denounce the criminal conduct (including the harm caused to the community by the crime) and to provide sentences and facilitate the rehabilitation of offenders and ensure that the offenders are punished to the extent justified by the offence."
45 I have no difficulty, after consideration of things, that this is a matter which is very much appropriate for a Community Corrections Order.
46 You have been assessed, as I indicated, and you have been found successful. The order will be with conviction, which is a significant punishment in itself.
47 The Court of Appeal has said in the case of Tomguenen in referring to DPP v. Leach:
"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which rebounds very much to the benefit of the community."
48 And as the President of the Court of Appeal said in DPP v. Decava:
"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of serious offence. If in the long term the community's interest will be best served by that course this court should seek to promote public understanding of the fact that apart from the interest of the individual, whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."
49 As I have said, this is a serious crime that has had very serious consequences. When I take all those matters into account and bearing in mind what was said in Tomguenen, and bearing in mind what a Community Corrections Order is for, I have determined that that is the appropriate disposition.
50 Accordingly, on all of the charges you are to be placed on a Community Corrections Order. It will be of three years' duration. It will have 300 work hours. It will have the conditions of supervision, drug and alcohol treatment, mental health, including a neuro-psychological and psychiatric condition. That is a long order so that your problems can be addressed.
51 It is a Community Corrections Order so there is no 6AAA.
52 MR DOYLE: Yes, Your Honour.
53 HIS HONOUR: All right, you can print that off. That order is made. Just stand up for me for a second, Ms Kesper, if you would. I don't know what happened that night. You're on a Community Corrections Order, it's going to go for three years. It would be often, as your barrister would have told you, that you'd get a real wack for this and if you breach the Community Corrections Order by any offending, in particular any sort of violence or losing interest or not turning up, or anything along those lines, you get breached, you get brought back and you get re-sentenced. A re-sentencing would involve a significant active custodial sentence. This gets transcribed and I'll read it back to you if I ever have to. I am hoping that I won't but if you're brought back, you're in,. all right? I'll just come back in five minutes.
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