Director of Public Prosecutions v Kitson

[2023] VCC 445

Buck

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02443

DIRECTOR OF PUBLIC PROSECUTIONS

v

David KITSON

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Shepparton
DATE OF HEARING:	15 March 2023
DATE OF SENTENCE:	22 March 2023
CASE MAY BE CITED AS:	DPP v Kitson
MEDIUM NEUTRAL CITATION:	[2023] VCC 445

REASONS FOR SENTENCE
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Subject:Intentionally cause injury and recklessly cause injury

Catchwords:              Guilty plea – attack on 2 victims with a box cutter – above midrange objective gravity – early plea – Aboriginal offender – sentencing conversation - childhood deprivation – history of mental illness – relevant criminal history

Legislation Cited:      Disability Act 2006 (Vic)

Cases Cited:R v Steelie Morgan [2010] VSCA 14; Bugmy v R (2013) 249 CLR 571; Ryan v The Queen (2001) 206 CLR 267; Gulak v The Queen [2015] VSCA 300; Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269; Honeysett (2018) 56 VR 375; Heyfron [2019] VSCA 130; Morgan [2010] VSCA 14

Sentence:                  Total effective sentence of three years and two months imprisonment with minimum non-parole period of one year and 10 months.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D O’Doherty	Erin Washington
Brianna Cox
For the Accused	Mr J Lavery	Sally Wilson

HIS HONOUR:

1David Kitson, you have pleaded guilty to:

(a)   one charge of intentionally cause injury to Richard McKaskill (Charge 1); and

(b)   one charge of recklessly cause injury to Kayne Morrow (Charge 2).

Circumstances of offending

2The circumstances of your offending are set out in the Summary of Prosecution Opening.[1]

[1] Exhibit A: Summary of Prosecution Opening on Plea dated 22 June 2021.

3In 2014 and 2015 you were in a relationship with Cindy Sinclair. You have a son together.

4In mid-2021 you got back together with Cindy.

5On 11 December 2021, when you were released from custody in New South Wales, you went to stay at a motel at Albury, New South Wales, temporarily.

6On 14 December 2021 when you were due to catch a train from Albury to Blayney, New South Wales, to return to your grandmother’s house, you told Cindy you wanted to see your son and you before you left. She agreed.

7Another of her children, Mark, picked you up from Albury and drove you to Cindy’s home at Wodonga.

8You arrived about 5:30 pm.

9Around 6 pm you asked Cindy to marry you and showed her a ring. She put you off, saying, “Don’t even bother because I won’t say yes anyway.”

10You remained at the house with her.

11A couple of hours later you helped Cindy carry her snake tank outside to clean.

12Richard McKaskill lived next door to Cindy.

13He came into Cindy’s front yard and spoke to her. You introduced yourself and shook hands with him.

14Kayne Morrow was visiting Cindy’s children who were his friends.

15Cindy, with a couple of her children, and Morrow and you, followed McKaskill into his property to look at his snake.

16You stayed there, with Cindy, for about an hour, and were drinking with them.

17Around 9.30 pm you all went back to Cindy’s house. McKaskill was playing with your son. You told him to leave, and he did. You followed him but stopped at the adjoining low brick fence and returned to the house.

18When you got back inside you accused Cindy of flirting with McKaskill. She told you to get out. The two of you argued.

19You followed her outside. The argument continued. She went on to McKaskill’s property and apologised to him. You went back inside.

20Around 10 pm Cindy went back to McKaskill’s and spoke to him on his front lawn.

21When you saw them, you ran out of the house toward McKaskill and Cindy and threatened them. You started fighting with McKaskill. Both of you went to the ground. While he was trying to restrain you, you pulled a box cutter knife from your pants pocket and stabbed him with it a number of times. When Morrow attempted to pull you away from McKaskill, you slashed his right forearm twice.

22You then ran off.

23McKaskill called 000.

24Police and an ambulance arrived shortly after.

25McKaskill was taken to Albury Hospital. He had a number of lacerations to his chest and body. Some had perforated his lungs which needed surgical repair.

26While his injuries were not life-threatening, if one of your stabbing blows had penetrated a vital organ, they could have been.

27Morrow had two lacerations, one 10 centimetres long and the other three centimetres long which required a number of sutures.

28Photos of their injuries show the serious lacerations you caused them.[2]

[2] Exhibit D: Photographs of Richard McKaskill’s injuries; Exhibit E: Photographs of Kayne Morrow’s injuries.

29On 16 December 2021 police arrested you at a West Albury home. You had injuries yourself.

30You admitted your involvement in the stabbing. When asked what weapon you used, initially, you said a rock. When you were challenged about it, you admitted you had used a box cutter.

31You were charged with a number of offences and remanded in custody.

32On 3 August 2022, when the matter was listed for committal, you indicated you would plead guilty to the charges on the indictment.

33On 22 December 2022, a Magistrate justifiably refused your application for summary jurisdiction.

34You elected to appear in the Koori Court of this Court.

Victim impact statements

35Richard McKaskill and his mother, Brigitte, made victim impact statements.[3]

[3] Exhibit B: Victim impact statement of Richard McKaskill; Exhibit C: Victim impact statement of Brigitte McKaskill.

36While her son listened, Mrs McKaskill bravely read both statements to the court.

37She lives in Cairns and flew to Albury to be with her son while he was recovering in hospital.

38But for your attack, he had planned to fly to Cairns to spend Christmas with his parents and siblings.

39When he was released from hospital, he was too unwell to fly. He was scared to stay at his home and had Christmas, spoiled by the trauma you had inflicted, with his parents, at a local hotel.

40When he was well enough to travel by road, his parents drove him back to Cairns. There, they looked after him for five months before he could return to Wodonga.

41He has rented another home in Wodonga to be near his daughter. Still, he feels unsafe. As well, he is left with scarring which makes him feel uncomfortable in public.

42His mother has struggled with sleep disturbance and anxiety. She is prescribed medication and sees a psychologist for counselling.

43The injuries which you inflicted on Mr McKaskill, have caused both his mother and him substantial and continuing psychological harm.

Criminal history

44You have admitted an extensive 20-year criminal history of summary offending.

45You have been sentenced to a number of terms of imprisonment, up to 10 months, for bail, domestic violence, driving, drug and property offences.

46In New South Wales you have convictions for common assault (22 April 2002 and 9 September 2003), assault occasioning actual bodily harm (10 October 2007, 23 March 2009 and 17 May 2011), and several custody of knife offences.

47You had been released from prison for only three days when you committed these crimes.

Personal circumstances

48You were born in September 1983. You were 38 years old when you offended. You will be 40 next September.

49Your personal circumstances are set out in the psychiatric report of Dr Richard Furst.[4]

[4] Exhibit 3: Report of Richard Furst dated 10 March 2019.

50You were born in Albury.

51Your stepfather was a heroin addict who was often violent towards your mother.

52You grew up in a household of domestic violence.

53You attended local schools. In high school you “went off the rails” and left in Year Nine.

54You have a history of substance abuse.

55You first used cannabis when you were 15 years old. You started using methyl amphetamine when you were 17 and soon became addicted.

56You have never held paid work because of poor mental health and drug dependence issues.

57In 2012 you were admitted to a psychiatric hospital when you were paranoid, hearing “voices” and feeling suicidal.

58In 2018, when you were suffering paranoid symptoms again, you were admitted to Bloomfield hospital for several months.

59You have been diagnosed with schizophrenia and treated with antipsychotic medication. You have also been prescribed antidepressants.

60On 15 October 2018 you had gassed yourself in your car at your sister’s house at Albury.

61Five days later, on 20 October 2018 police charged you with offences, including resisting police, and you were remanded in custody.

62You were exhibiting psychotic symptoms at the time.

63Dr Kirsty Macdonald, a psychiatric registrar, assessed you at Silverwater prison.[5]

[5] Exhibit 2: Report of Kirstie MacDonald dated 7 January 2019.

64She confirmed your diagnoses of schizophrenia and depressive disorder.

65Your clinical state improved when you were prescribed antipsychotic and antidepressant medications.

Sentencing conversation

66In a sentencing conversation with two Elders,[6] you listened to Mrs McKaskill read the victim impact statements and you stood before them in court, and told them you were sorry.[7]

[6] Uncle Greg James, and respected person, Sam Kirby. Your grandmother also supported you.

[7] You also wrote a long letter of apology (Exhibit 4: David Kitson’s letter of apology).

67You said you don’t want to be in jail all the time. You said, “That’s all I’ve done since I was 21.”

68You said you want to be a good father to your son and you understand you need to take your prescribed medication and stay off illicit drugs to achieve that.

69You have been taking your medication and been drug-abstinent in prison.

70You are a Barkanji man.

71You have connected with your culture through the Koori Arts Program in prison.

72And you are getting work experience through prison employment, packing boxes.

73You said, on your release from prison, you will live with your grandmother and you will have work in a local factory.

74In the conversation, you were challenged to acknowledge the harm of your crimes, to accept responsibility for your actions and commit to positive change. To your credit, you responded positively.

Defence Submissions

75Mr Lavery, who appeared on your behalf, in written and oral submissions, acknowledged that the seriousness of your crimes warranted a term of imprisonment.[8]

[8] Exhibit 1: Defence Outline of Submissions for Plea.

76In mitigation of penalty, he relied on:

(a)   firstly, your early guilty plea for its high utilitarian value;

(b)   secondly, the additional Worboyes consideration;

(c)   thirdly. your remorse;

(d)   fourthly, your traumatic childhood[9] and mental illness;[10] and

(e)   fifthly, your engagement in Koori Court.[11]

[9] Bugmy v R (2013) 249 CLR 571, [44].

[10] R v Verdins (2007) 16 VR 269.

[11] R v Steelie Morgan [2010] VSCA 14.

77He pressed for the imposition of a head sentence which does not greatly exceed the time you have spent in custody to date.

Prosecution Submissions

78Counsel for the prosecution, Mr O’Doherty, in concise submissions, characterised your offending as “particularly serious.”

79He submitted that you were carrying a weapon was an aggravating feature.

80He contended the appropriate sentence is the imposition of a term of imprisonment with a non-parole period fixed.

81He referred me to several appellate decisions concerning individual sentences for the offence of intentionally cause injury, which ranged from three years to five years and 11 months imprisonment.[12]

[12] Phillips v The Queen [2017] VSCA 313 (‘Phillips’); Wilson v The Queen [2018] VSCA 219 (‘Wilson’); Rivera v The Queen [2020] VSCA 5 (‘Riviera’); and Baroch v The Queen [2022] VSCA 90 (‘Baroch’).

Consideration

82The maximum penalty for intentionally cause injury is 10 years imprisonment. For recklessly cause injury, it is five years in prison.

83Mr McKaskill gave you no reason to be jealous. He had done you no harm. He was no threat to you. Nevertheless you angrily set upon him.

84You inflicted severe injuries on him, and you caused nasty injuries to Mr Morrow who simply intervened to try to stop the fighting.

85Your offending is aggravated by your use of a weapon which could have caused a fatal injury.

86I accept your actions were impulsive, and your attack was relatively short-lived.

87Overall I assess your offending to be above mid-range objective seriousness for crimes of the type.

88While I must take into account the harm you caused your victims, I am mindful you are to be sentenced for the crimes of intentionally and recklessly causing injury, not serious injury.[13]

[13] R v De Simoni (1981) 147 CLR 383, 389.

89Your criminal history is disturbing. Among other things, it shows that you have had a long-held habit of carrying a knife.

90You reoffended shortly after your release from jail. Prison has not discouraged you from committing further crimes. This pattern of wrongdoing cannot be ignored.[14]

[14] Ryan v The Queen (2001) 206 CLR 267, [67]; Gulak v The Queen [2015] VSCA 300, [23].

91The seriousness of your crimes requires me to impose another prison term.

92There are a number of factors which I take into account to reduce your sentence.

93Firstly, you are entitled to a significant sentencing discount for your early guilty plea.[15]

[15] Worboyes v The Queen [2021] VSCA 169.

94Secondly, your disadvantaged background[16] and mental health[17] moderate your moral culpability to a modest degree.

[16] Bugmy v The Queen (2013) 249 CLR 571.

[17] Verdins v The Queen (2007) 16 VR 269.

95Thirdly, your participation in the sentencing conversation is a mitigating factor.[18] You are to be given credit for allowing yourself to be challenged by the Elders and not “hiding behind” your barrister in the Plea Hearing.

[18] Honeysett v The Queen (2018) 56 VR 375; DPP v Heyfron [2019] VSCA 130; R v Steelie Morgan [2010] VSCA 14, [33]-[40].

96You have served many relatively short prison sentences in your adult life.

97Prison can harmfully shape and transform people. There is a risk that a person may gradually become less able to think and act independently because of having lived for a long time under prison rules.

98I have tailored your sentence, in two ways, to reduce your risk of prisonisation.

99Firstly, I will impose a lesser overall prison term.

100Secondly, I will impose a shorter-than-usual non-parole period to give you the opportunity for release into the community under supervision.

101I must be guarded about your prospects of rehabilitation.

102Your grandmother’s ongoing support, and your motivation to be a good father for your son, give me some optimism you can break the cycle of reoffending.

103I have also had regard to current sentencing practices and the relevant appellate authorities[19] to guide me in sentencing you.

[19] Rivera, where the victim suffered a potentially life-threatening arterial bleed, Wilson, where the offender struck his intimate partner with a hammer, and Phillips, where a shotgun was discharged at a police officer, are examples of more serious, high-end offending of the type. Baroch is more broadly comparable to the present case, where two offenders, although not armed, kicked and stomped a good Samaritan to unconsciousness. Mr Lavery referred me to Adem Kuru [2009] VSCA 206 where a sentence of 10 months imprisonment had been imposed. While the offending was broadly comparable, the offender was in that case able to call in aid powerful mitigating factors which justified a lenient sentence.

104Mr Kitson, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

105Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of—

(a)   intentionally cause injury (Charge 1) you are sentenced to three years imprisonment. This is your base sentence;

(b)   recklessly cause injury (Charge 2), you are sentenced to a term of imprisonment of 12 months.

106I direct two months of your sentence on Charge 2 to be served cumulatively with your base sentence.

107Your total effective sentence is three years and two months imprisonment.

108I direct you serve a minimum period of one year and 10 months before being eligible for parole.

109I declare you have already served 461 days of your sentence by way of presentence detention.

110While there is some artificiality to the process, I declare, but for your guilty plea I would have sentenced you to four years and four months imprisonment and fixed a minimum non-parole period of three years.