Director of Public Prosecutions v King

[2015] VCC 298

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00248

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT DANIEL KING

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JUDGE:	Grant
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2015
DATE OF SENTENCE:	6 March 2015
CASE MAY BE CITED AS:	DPP v KING
MEDIUM NEUTRAL CITATION:	[2015] VCC 298

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Gibson	OPP
For the Accused	Mr L. Gwynn	Pica Criminal Lawyers

HIS HONOUR:

1       Brett King, you have pleaded guilty to one charge of Causing Serious Injury Intentionally. The maximum penalty for this offence is 20 years imprisonment.

2       I have heard a summary of the offending. It is not my intention to repeat the whole summary. It is exhibit A in this hearing.

3       Briefly, you had been in a de facto relationship with Ms Kristen Losurdo for approximately five years. You have a four-year-old child together. There were difficulties in this relationship at the relevant time.

4       On 20 June 2013 you telephoned the victim, Mr Baker, who had had a brief relationship with Ms Losurdo five years prior. You had never met him or spoken to him before. You identified yourself and accused him of sleeping with Ms Losurdo behind your back. Mr Baker denied the allegation. Later that day, you sent a number of text messages to him that were threatening in nature and stated that you wanted to meet him. These text messages and a number of Facebook messages sent to the victim, continued over the following weeks. These messages referred to the victim’s address and were intended to scare him.  They also reveal an obsessed belief you had that the victim was still intimately connected with Ms Losurdo and that this had contributed to your break up. This was factually untrue. The victim sent you a text message saying he was happy to talk to you, but would repeat what he had said earlier, that he had not seen Ms Losurdo for a number of years. As a result of the messages that the victim was receiving from you, he altered his day-to-day activities by leaving the house as little as possible. He carried a small metal pole with him when he did. The last message he received from you was on 11 July 2013.

5       At about 6:30am on 17 July 2013, the victim left for work via the back gate of his property. When he opened the gate you and another man confronted him. You were armed with a box cutter knife and the other male, a baseball bat. You attempted to slash the neck of the victim but this was blocked. A scuffle ensued. The victim pleaded with you to stop. You then slashed the victim’s neck with the box-cutter knife causing a deep elongated wound from the right side of his neck to the top of his chest, just below his throat. Neighbours became aware of what was happening and yelled out. You walked off.

6       Police and ambulance attended and the victim was taken to the Alfred Hospital where he underwent surgery to stop internal bleeding and repair damaged muscles, nerves and blood vessels.  He had suffered a deep laceration to the right side of the neck measuring 25cm. It missed the carotid artery by less than 3 millimetres.  The victim also sustained several small facial and arm abrasions.

7       Police attended your premises on 19 July 2013 where three box cutters were located. You were arrested and interviewed.  You made admissions in the interview but showed no remorse for your behaviour.

8       This is serious offending. There was an element of pre-planning, you were armed with a dangerous weapon and you were with another man who was also armed. You attended at the home of the victim – a place where he was residing with his mother. The victim suffered a serious injury. It is only through good fortune that the victim did not suffer more severe injuries. Fortuitously, the box cutter did not damage a major artery or damage nerve structures. The victim was discharged after 3 days in hospital and when reviewed after 9 days he was “stiff in the neck but otherwise fine.” The physical injuries are at the lower end of serious injury.

9       The victim impact statement reveals that the victim still suffers pain from his wound. He has a visible and ugly scar. He was unable to return to his full work duties for 10 weeks and suffered a financial loss as a result. He has ongoing concern for his and his mother’s safety and this is affecting his psychological well-being.

10      Mr King, this is an offence where general deterrence is a paramount sentencing consideration. I must send a message to those in the community who may be tempted to act in the way that you did on this day, that such behaviour will be dealt with appropriately by a court. Just punishment and denunciation are also highly relevant sentencing considerations.

11      You have admitted a significant criminal history. It commences in 1993. Apart from two matters in 1994, your prior history predominantly involves offences of drug use and dishonesty. It is the type of history that is consistent with your long-term abuse of heroin. In the past, you have received Intensive Corrections Orders, a Combined Custody and Treatment Order, suspended sentence orders and periods of imprisonment. They have not stopped your offending. In April 2005 you received a sentence in the County Court of 5 years imprisonment, with a minimum term of 3 years and 9 months, for 11 charges of burglary and 7 charges of handle stolen goods. In July 2012, you received a suspended sentence in the Magistrates’ Court with an operational period of 12 months. The operational period had only just expired when you committed this offence. While it is true that you do not have a history of violent offending, the frequency and seriousness of your offending over many years means that specific deterrence and protection of the community are relevant sentencing considerations.

12      I now move to those matters that are relevant to your background. You are 39 years old. You are the eldest of four children. Your family life was difficult at times because both of your parents had to battle their own health issues and personal problems. Your counsel told me that you were not always well supervised. You were not a good student and you left school in year 9. You commenced using heroin as a 17 year old and the abuse of that drug has dominated your adult life. Your drug addiction explains your limited work history. In 2010, you commenced to receive the disability support pension.

13      You have a daughter, Jade, who is now 20 years old. She does not have a good relationship with her mother. She does have a strong relationship with you. She is studying to become a social worker. And she has written a letter of support for you.

14      In 2008 you commenced the relationship with Ms Losurdo.  The relationship ended in 2013 and you have a 4-year-old son, Levi. You have daily telephone contact with him and he visits you on weekends.

15      I now move to the matters in mitigation.

16      You have pleaded guilty to the offence. I am satisfied that you have always been willing to accept responsibility for what you have done. You initially offered a plea to a charge of recklessly cause serious injury. This was at a time when the prosecution were seeking to proceed on a “gross violence” charge. You then offered to plead to a charge of intentionally cause injury. That offer was rejected. A contested committal took place in February 2014 but you did not require the victim to give evidence. Dr O’Brien and the ambulance officers gave evidence on the issue of the extent of the victim’s injuries. On 11 November 2014, you offered a plea to the charge on the indictment. The prosecution accepted the offer on 8 December 2014.

17      You should be given appropriate credit for your plea in circumstances where there were ongoing negotiations about the appropriate charge and where you did not require the complainant to give evidence at the committal.

18      Although you made admissions when interviewed by the police you did not at that time express any remorse for your actions. However, your behaviour after that initial interview is consistent with a man who is remorseful. In addition, your plea of guilty has saved the victim from the trauma of giving evidence and avoided the costs involved in a criminal trial.

19      You have been on remand for a considerable period of time. It is to your credit that you have participated in a number of programs that are designed to help with your rehabilitation.

20      You do have a network of people who are prepared to support you. Your parents, your daughter, Mr McCarthy and Ms Ryan have all written letters of support. It is clearly to your benefit that you have family and friends who are prepared to offer their support. On the other hand, all of these supports were available at the time you committed this serious offence.

21      Mr King, I do not regard you as a good prospect for rehabilitation. You have a long history of drug abuse and criminal offending. You have offended with monotonous regularity since 1993 and you have received court orders in the past that were designed to assist your rehabilitation. They have not been successful.  Your counsel spoke about the ongoing motivation provided by the strong connection to your children and your concern for their welfare and your parents’ welfare. That motivation and concern would have been present at the time you committed this offence. It did not act to check your behaviour.

22      Mr King, will you stand please. Mr King, on the charge on the indictment, you are convicted and sentenced to be imprisoned for 4 ½ years. I fix a minimum term of 3 years before you will be eligible for release on parole. I declare that you have served 595 days pre-sentence detention.

23      Had you been found guilty after trial, I would have sentenced you to a term of 6 ½ years with a minimum of 4 ½ years.

24      I make the disposal order sought by the prosecution.

25      You can be seated there.  Are there any other matters?

26      MS PATTERSON:  No, Your Honour.

27      MS COATH:  No, Your Honour.

28      HIS HONOUR:  No.  Thank you.  The prisoner can be removed.  Thank you.