Director of Public Prosecutions v Labinas
[2022] VCC 2101
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS LABINAS |
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JUDGE: | HIS HONOUR JUDGE ROZEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 November 2022 |
DATE OF SENTENCE: | 29 November 2022 |
CASE MAY BE CITED AS: | DPP v Labinas |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2101 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Causing serious injury recklessly – Theft – Plea of guilty - Serious assault – Life-threatening injuries – Causation – High moral culpability – Limited application of Verdins principles – Long history of drug use
Legislation Cited: Crimes Act 1958; Bail Act 1977; Sentencing Act 1991
Cases Cited: Robb v The Queen [2016] VSCA 125; Worboyes v The Queen [2021] VSCA 169; Verdins v The Queen (2007) VR 269; Romero v The Queen [2011] VSCA 258; Charles v R [2011] VSCA 399; Brown v The Queen [2020] VSCA 212
Sentence: Total effective sentence of 4 years and 1 month of imprisonment – Non-parole period of 2 years and 9 months – s 6AAA declaration – Imprisonment of 5 years and 3 months with a non-parole period of 3 years and 7 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Office of Public Prosecutions |
For the Accused | Mr L. McPhie | Ann Valos Criminal Law |
HIS HONOUR:
1Travis Labinas, you have pleaded guilty to the following indictable offences:
i.One charge of causing serious injury recklessly, contrary to s 17 of the Crimes Act1958, which carries a maximum of 15 years' imprisonment; and
ii.One charge of theft, contrary to s74 of the Crimes Act1958, which carries a maximum penalty of 10 years' imprisonment.
2In addition, you have also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail, contrary to s 30B of the Bail Act1977. The maximum penalty for that offence is 30 penalty units or three months' imprisonment.
3I sentence you on the basis of the Summary of Prosecution Opening dated
7 November 2022, which is an agreed summary. The following summary is in turn drawn from that opening.
Circumstances of the Offending
4On Saturday, 23 May 2020, in the company of Sheena Gilbert, you seriously assaulted Natalie Wren in her house in Bacchus Marsh. Ms Wren was gravely injured as a result of this assault and was transported by ambulance to the Royal Melbourne Hospital where she was placed in an induced coma for
eight days.5You met Ms Wren through a mutual friend approximately a month before this assault. In the month prior to the night of your offending you had regular contact via text messages and you would occasionally visit Ms Wren at her unit.
6On 23 May 2020 Ms Wren was at her unit at Bacchus Marsh with another man. They were using the drug ice. A number of people, including you and
Ms Sheena Gilbert - who has been sentenced separately in relation to this offending - came and went from the unit throughout the day.7At approximately 4.21 pm Ms Wren left her unit and attended at the address of another man, Mr Hyne, and smoked some more ice.
8At around 7 pm you and Ms Gilbert arrived at Mr Hyne's address. You were drug affected and acting erratically and aggressively towards Ms Wren about a debt.
9At approximately 7.30 pm Ms Wren left Mr Hyne's address; you and Ms Gilbert left shortly thereafter. CCTV footage from Ms Wren's property reveals that you and Ms Gilbert arrived at Ms Wren's unit before her and met Ms Wren outside of her property shortly before 8 pm. The three of you entered the unit together. For the next hour you, Ms Gilbert and Ms Wren were the only three people inside the unit. No one entered or left the property during that time.
10At some stage during this time Ms Wren was seriously assaulted. She was kicked, punched and pushed into the shower of her bathroom (Charge 1 – Causing Serious Injury Recklessly). She was stabbed in the neck with a knife. The knife was then placed in the sink. Ms Wren lost consciousness during the assault.
11The prosecution allege that both you and Ms Gilbert were involved in the assault on Ms Wren. However, you do not fall to be sentenced in relation to the stab wound Ms Wren received to her neck. Ms Wren is unable to recall who stabbed her, and whilst this occurred while you were present in the unit the prosecution concedes it cannot prove beyond reasonable doubt that you wielded the knife or that you were complicit in the stabbing; I note that Ms Gilbert has not been charged or sentenced in relation to the stabbing either.
12You fall to be sentenced for the remaining injuries sustained by Ms Wren on the basis that you intended to cause Ms Wren injury, and were reckless about causing serious injury, as you were aware that your conduct would probably or likely cause serious injury to Ms Wren.
13At approximately 9 pm, another man, Mr Sweeten, arrived at the property and entered Ms Wren's unit. He observed you and Ms Gilbert in the lounge room and asked you where Ms Wren was. You directed him to the shower, where he observed Ms Wren seriously injured, lying in the shower and bleeding heavily. She had a large stab wound on the side of her neck. Mr Sweeten attempted to quell Ms Wren's bleeding with a towel, ran outside and asked a neighbour to call 000.
14At approximately 9.15 pm ambulance members arrived at Ms Wren's unit and she was transported to the Royal Melbourne Hospital. In the meantime, you and Ms Gilbert had separately left the house. CCTV footage shows you leaving the unit at 9.10 pm in bare feet, carrying Ms Wren's handbag and a cup of coffee and (Charge 2 - Theft). Ms Wren's phone was among the belongings that you stole from her house.
15Police arrived at Ms Wren's unit at approximately 10 pm and located a knife in the sink.
Post-Offending Conduct and Arrest
16Later that evening you used Ms Wren's phone to communicate with Ms Gilbert. You were also involved in a conversation with a Facebook scammer, who induced you to attend a 7Eleven store to purchase a gift card and send photographs of it in order to pay for the delivery of your ‘winnings’.
17At approximately 4 am on the morning of 24 May 2020, you attended a 7Eleven in Bacchus Marsh to purchase the gift cards requested of you by the Facebook scammer. Shortly thereafter police attended the store in response to a report from a 7Eleven staff member of a person causing trouble and you were taken to the Bacchus Marsh police station.
18At the Bacchus Marsh police station police confirmed that you matched the description of the person captured on CCTV attending Ms Wren's address that evening. You were arrested and searched, and police located a chisel,
Ms Wren's mobile phone and a number of cards.19You were assessed in the early morning as being unfit for interview at that time and were ultimately interviewed in relation to these offences at 4 pm on the afternoon of Sunday 24 May 2020. In the interview you stated you did not know Ms Wren, had not been to her address, and, when shown still images of the CCTV footage, denied that the male depicted on the CCTV footage was you.
20You were on bail in relation to unrelated matters at the time of this offending.
Treatment received by Ms Wren
21Ms Wren was admitted to the emergency department of the Royal Melbourne Hospital at approximately 11 pm on 23 May 2020. She had lost approximately 1 litre of blood and was intubated - placed in an induced coma with breathing support - due to reduced consciousness. She became hypotensive after intubation and received a blood transfusion. She suffered a laceration to the right forehead; laceration to the right neck with venous bleeding; bruising around both eyes; swelling to her scalp; swelling to both ears; and right shoulder bruising. She was admitted to the intensive care unit.
22A CT scan was conducted and revealed a left anterior frontal subdural haematoma, a cerebrospinal fluid leak, and a left hyoid fracture. A dental injury, being the break of Tooth 12 and Tooth 22, was noted post-admission. The missing Tooth 22 was later found in the vallecular (a depression behind the root of the tongue between the folds of the throat)
23Ms Wren was discharged home on 3 June 2020 but she developed a lung infection which was treated with antibiotics, first at the Ballarat emergency department and then, on 6 July 2020, at Royal Melbourne Hospital.
Injuries to Ms Wren caused by you
24The court received two reports about Ms Wren's medical treatment prepared by Dr Maki Molla, forensic physician, from the Victorian Institute of Forensic Medicine.[1] Dr Molla also gave oral evidence on the plea on 8 November 2022.
[1] Report of Dr Maike Moller dated 31 August 2021; Report of Dr Maike Moller dated 30 September 2022
25The purpose of Dr Molla's evidence was to assist the court to determine which of Ms Wren's injuries and health complications were caused by you. 'Caused' in this context has a legal meaning. Before you can be sentenced for causing an injury to Ms Wren, the court must be satisfied on the criminal standard that your acts contributed significantly to her injuries. They need not have been the only cause.[2]
[2]Robb v The Queen [2016] VSCA 125 at [52].
26Dr Molla was asked to express her opinion on the likely cause of Ms Wren's lowered consciousness. She opined that the most likely causes were the blood loss and the head injury.[3] As it is agreed between defence and prosecution that you are not to be sentenced for the knife injury to Ms Wren's neck, it follows that you did not cause, in a legal sense, the lowered consciousness. It also follows that you are not responsible in law for Ms Wren being intubated. The significance of this is that Dr Molla is of the opinion that the subsequent lung infection is a result of either a pre-existing lung injury or the intubation itself, or some combination of these two causes.[4]
[3] Transcript of Plea Hearing on 8 November 2022, page 32.
[4] Ibid, pages 38-39.
27You are therefore to be sentenced for causing the facial and head injuries including the laceration to the right forehead; laceration to the right neck with venous bleeding; bruising around both eyes; swelling to the scalp; swelling to both ears; right shoulder bruising; left anterior frontal subdural haematoma; cerebrospinal fluid leak; left hyoid fracture; and linear lucency of the temporal bone.
Impact of the Offending
28The court received victim impact statements from Ms Natalie Wren and Anita Wren. Each was read out by the prosecutor, Ms Dickens. Ms Natalie Wren states that the offending has totally destroyed her as a person. She states that she no longer feels safe. She describes you kicking her in the face until her teeth fell out. She says she begged you to stop. She described the ongoing effects as losing a great deal of weight and needing increased medication for depression and anxiety.
29Anita Wren, Natalie's mother, describes the profound change to her daughter's character since the attack. She says Natalie was happy-go-lucky and is now a clingy, emotional wreck. She says that she will never be free of what you did that night.
Objective Gravity of the Offending
30Yours is a very grave instance of the serious crime of recklessly causing serious injury. By your plea of guilty you have accepted that Ms Wren suffering serious injury was a probable consequence of your attack on her.
31Your counsel offered no explanation to the court for your violent and senseless attack on a defenceless woman while in company with Ms Gilbert. Your attack on Ms Wren was sustained and continued despite her pleas for you to stop.
32You caused serious facial injury by kicking Ms Wren in the face on more than one occasion. The attack was in her home where she was entitled to feel safe. You left her in the shower and walked away from her house, leaving others to seek the urgent medical attention she needed.
33It is aggravating that you were on bail at the time of your offending.
34I consider your moral culpability for this offence to be high.
35In relation to the theft, while the value of what you stole is not great, the circumstances of the theft mean your moral culpability for the theft is considerable. When you stole her handbag and phone Ms Wren was lying semi-conscious in the shower as a result of you having beaten her up and left her there.
Personal Circumstances
36I now turn to your personal circumstances.
37You were born in 1984 and are now 38 years old. You were raised by both parents in St Albans until the age of nine, at which time your parents separated; your father moved to Echuca with your two older sisters, and you remained with your mother in Melbourne. When you were 17 your mother remarried and left to live in Queensland and you reconnected with your father and lived with him until the age of 23.
38About this time you commenced a relationship with Sheena Gilbert, your
co-offender in this case, with whom you have three children. In 2010, just before your second child was born, you and Ms Gilbert returned to live with your father for a period, although this was a hostile arrangement. On some occasions Ms Gilbert and the children would live with your father while you slept in a car, couch surfed or slept rough. The relationship ended in 2017. Prior to being remanded on these charges you had lived with Melissa Piteri and her children, with whom you intend to reside upon your release from custody.39You attended high school until Year 10, shortly before your mother moved to Queensland. You attained a Level 3 qualification in commercial cookery and completed a chef apprenticeship over four years and since that time you have worked in various hospitality roles - including in wine service, as a waiter, and once qualified, as a chef.
40You commenced using ice in your early 20s during your chef apprenticeship and your ice use has continued to increase since that time. In the two years leading up to this offending you were using GHB and ice on a regular basis, and you overdosed and blacked out from your substance use on multiple occasions.
Medical History
41You were assessed for the purposes of the plea by Ms Alison Mynard, clinical psychologist. Ms Mynard saw you on 3 June 2022 and her report, dated
27 June 2022, is in evidence.[5][5] Report of Ms Alison Mynard dated 3 June 2022.
42Ms Mynard's report contains a detailed history based on what you told her. You reported to Ms Alison Mynard that you were hit over the head with a hammer and knocked unconscious three to four days prior to this offending. You did not receive any medical attention for this injury, nor did you report it to the police.
43Ms Mynard refers to your extensive drug use and states that you have not been treated for any mental health disorders. She diagnosed you as suffering from depression, anxiety, post-traumatic stress disorder, prolonged bereavement disorder, drug induced psychosis and stimulant use disorder.
44Ms Mynard opines that at the time of the offending you were likely suffering from the acute symptoms of a head injury or concussion.[6] She further states that at that time you had continued to suffer from psychosis, PTSD and the effects of the long-term chronic grief resulting in impaired judgment and impaired reasoning skills.[7] Ms Mynard notes that, as you were using ice and GHB at the time and have no memory of the events, your offending was also impacted by your substance intoxication.
[6] Ibid, page 8.
[7] Ibid, page 9.
45In relation to the likely effects of a custodial sentence, Ms Mynard opines that it will give you some stability but will also impact you negatively as you will become reliant on it for that stability. She states that your PTSD and depression symptoms ‘appear to be exacerbated in custody’ and that your mental health ‘may deteriorate in custody’.[8]
[8] Ibid, page 8.
46Ms Mynard considers you at risk of reoffending if you remain homeless. She states that you reported good relationships with your sons and that they are a motivating factor for you to remain substance free when you are released from prison.
47You have a limited criminal history with only one prior conviction for violent offending. You were sentenced for an unlawful assault this year in the Magistrates' Court when you were fined. You have on several occasions been sentenced for offending while on bail.
Factors in Mitigation
48You pleaded guilty on the eve of your trial. While this is not an early plea it does carry a significant utilitarian benefit, especially at this time,[9] and saves Ms Wren the ordeal of giving evidence. Your guilty plea is evidence of some remorse, and Ms Mynard considers that you appear to have taken responsibility for your actions.[10] You told Ms Mynard that when you realised what you had done to Ms Wren you felt disgusted.
[9]Worboyes v The Queen [2021] VSCA 169
[10] Report of Ms Alison Mynard dated 3 June 2022, pages 5 & 7.
49You have been on remand since May 2020. The entire time you have spent in custody has been affected to a greater or lesser degree by the pandemic. This has been a very hard time to serve a custodial sentence.
50To your credit, you have used the time to complete courses and improve your prospects of work when you are released, and a number of certificates evidencing your participation are in evidence before me.
51I assess your prospects of rehabilitation as moderate. While you have a long history of drug use related to criminal offending, you have not taken drugs for the two years you have been in custody and you have the prospect of looking after your children as a motivating factor. I was told by your counsel that you will have accommodation available.
Verdins
52Your counsel submitted that the first and third limbs of Verdins are relevant such that your moral culpability is reduced and general deterrence may be moderated.[11] Reliance was placed on the opinions of Ms Mynard, which I have summarised earlier. Your counsel submits that your impairment contributed causally to the commission of the offences, reducing your ability to exercise appropriate judgment, make logical or rational judgments and think clearly.[12]
[11] Defence Outline of Submissions dated 6 July 2022 at [55].
[12] Ibid, [56].
53This was strongly challenged by the prosecution. Ms Dickens submitted that
Ms Mynard's report does not disclose the evidence in the nature of test results that provides the basis for the various diagnoses. Ms Dickens submits that the court should not accept that you suffer from those mental impairments. She points out that there is no history of mental impairment and the report is based on one consultation two years after the offending.54Ms Dickens submitted that, even if the court is satisfied that you suffered from one or more mental impairments at the time you offended, it should not be satisfied that those impairments reduced your moral culpability in the sense required by the cases.
55It is well established that an offender's culpability may be diminished due to the effect of a mental disorder from which they suffer. In the case of Verdins v The Queen,[13] the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct as distinct from the offender's legal responsibility’.
[13]Verdins v The Queen (2007) VR 269 at [32].
56In such a situation, the condition will affect the punishment that is just in all the circumstances and ‘denunciation is less likely to be a relevant sentencing objective’. For this principle to apply, the impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender's disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices or to think clearly at the time of the offence’.[14]
[14]Romero v The Queen [2011] VSCA 258 at [13] Redlich JA.
57Where the principles in Verdins apply, not only will the moral culpability of the offender be reduced, but the mental health condition may have a bearing on the kind of sentence that is imposed.[15] Further, depending on the nature and severity of the symptoms exhibited by the offender, both specific and general deterrence may need to be moderated or even eliminated as sentencing considerations.[16]
[15]Verdins (2007) 16 VR 269 at [32].
[16] Ibid, [32].
58The Verdins principles are, and should be, regarded as ‘exceptional’.[17] It is for the offender to establish on the balance of probabilities the facts that enliven the Verdins principles. This will normally be done by calling expert evidence which must be ‘rigorously scrutinised’.[18]
[17]Charles v R [2011] VSCA 399 at [162].
[18]Brown v The Queen [2020] VSCA 212 at [6].
59Applying the rigorous scrutiny to the expert evidence in this case, I have accepted the submissions of the prosecution. You have no history of mental impairment, and the opinions of Ms Mynard, based as they are on a single consultation two years after the offending, are, in my view, an insufficient basis to reduce your moral culpability for this very serious offending.
60Your counsel also submitted that Verdins Limbs 2, 5 and 6 are enlivened. Reliance was placed on the views of Ms Mynard. I noted earlier that Ms Mynard is somewhat equivocal about the impact of a custodial sentence on you and ultimately concludes that your mental health may deteriorate in custody.
Limb 5 requires a finding that the sentence will weigh more heavily on you than it would on a person in normal health. I am prepared to moderate your sentence to a small degree on this basis.61Limb 6 of Verdins requires the court to be satisfied there is a ‘serious risk’ of imprisonment having a ‘significant adverse effect on the offender's mental health’.[19] In my view, the evidence before the court does not reach this standard.
[19]Verdins (2007) 16 VR 269 at [32].
Relevant Sentencing Principles
62I consider that the relevant sentencing principles are general and specific deterrence, just punishment and community protection. It is also necessary to promote your rehabilitation which I will do by setting an appropriate non-parole period so that you have the benefit of supervision if you are released on parole.
63As earlier stated, you committed the offences together with your former partner, Ms Sheena Gilbert. Ms Gilbert pleaded guilty earlier this year to a charge of assisting you, contrary to s 325 of the Crimes Act1958. That offence carries a maximum penalty of five years' imprisonment.
64On 27 May 2022 Ms Gilbert was sentenced to an 18 month Community Correction Order. Because the offence with which she was charged is quite different to those to which you have pleaded guilty, no issue of parity arises as between your sentence and the sentence imposed on Ms Gilbert.
Orders
65Taking into account the maximum penalties, the nature of your offending, including the victim's injuries that you caused, the impact of your offending on your victims, and the various matters in mitigation discussed above you are sentenced as follows:
i.On Charge 1, recklessly causing serious injury, you are convicted and sentenced to 3 years and 8 months' imprisonment;
ii.On Charge 2, theft, you are convicted and sentenced to 18 months' imprisonment; and
iii.On the summary charge of committing an indictable offence while on bail you are convicted and sentenced to imprisonment for one month.
66The sentence on Charge 1 is the base sentence.
67I order that 5 months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1. The sentence on the summary charge is to be served concurrently with the sentences on Charges 1 and 2.
68The total effective sentence is therefore 4 years and 1 month.
69You will be eligible for parole after you have served 2 years and 9 months.
70Pursuant to s 18 of the Sentencing Act 1991, I declare that the 919 days not including today that you have spent on remand will count as time served against the sentences imposed today.
71I make the disposal order sought, noting that it is unopposed.
72Finally, pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty, I would have sentenced you to a total effective sentence of 5 years and 3 months' imprisonment with a non-parole period of 3 years and 7 months.
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