Director of Public Prosecutions v Larsen
[2016] VCC 623
•13 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00136
Indictment No. F12360412
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE ANTHONY LARSEN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 4 May 2016 | |
DATE OF SENTENCE: | 13 May 2016 | |
CASE MAY BE CITED AS: | DPP v Larsen | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 623 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – theft – recklessly cause serious injury – use of knife
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Thanh Phong Tran [2009] VSCA 252; R v Peter Danh [2009] VSCA 251; Gosland v R; McDonald v R [2013] VSCA 269
Sentence: Total effective sentence of 37 months imprisonment with a non-parole
period of 22 months; 323 days presentence detention declared; 6AAA declaration- 4 years imprisonment with a non-parole period of 2 years 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Bate | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
HIS HONOUR:
1 Kane Anthony Larsen, you have pleaded guilty to the following offences:
Charge 1 – that you, at Preston in Victoria, on 12 June 2015, stole a handbag belonging to Theodora Stragalinos.
The offence of theft is contrary to s.74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2 – that you, at Preston in Victoria, on 12 June 2015, without lawful excuse, recklessly caused injury to Bernard Oxenham.
The offence of recklessly causing serious injury is contrary to s.17 of the Crimes Act 1958 and carries a maximum penalty of 15 years’ imprisonment.
2 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)On 12 June 2015 the first complainant, Theodora Stragalinos, who was 65 years at the time of the offending, had been shopping at the Preston Market at about 12.30 pm. Mrs Stragalinos was walking to her vehicle parked in a car park, carrying her handbag and a simple shopping bag. She placed the shopping bag in the back seat before getting in the driver’s seat, closing the door and placing her handbag on the front passenger seat.
(b)As she began to put her seatbelt on, you opened the front passenger door of the vehicle, grabbed the handbag from the car seat and ran away (Charge 1). Mrs Stragalinos got out of her vehicle and began to yell for help.
(c)The second complainant, Bernard Oxenham, was in the vicinity when he saw you wearing a black-hooded jacket, running with something close to your chest. On hearing the yelling from Mrs Stragalinos, and her request for help, Mr Oxenham set out after you, intending to head you off at the back of one of the stores. Another passer-by, Toby Wallace, also gave chase to you.
(d)Wallace initially caught up with you first and yelled that “You’ve got that woman’s handbag”.
You did not respond, and continued walking, and after Wallace again yelled out, you turned to Wallace and showed him a kitchen knife about 20 centimetres long.
(e)Wallace then backed off, but continued to follow you, and ultimately informed Oxenham that you had a knife.
(f)Oxenham approached you, and you turned towards him with the knife displayed against your body, saying “I don’t know what you’re talking about”, before continuing on. Oxenham also described the knife as about 20 centimetres in length.
(g)Oxenham then caught up with you, pushed you and tackled you from behind in an attempt to get the bag. You hit your head against a shop window before you and Oxenham have fallen backwards, with Oxenham landing on top of you. You and Oxenham then got up and were facing each other, with you with the knife in your hand. Thereafter, another scuffle ensued, causing members of the public, including children, to gather around.
(h)During the scuffle, you pushed the knife against Oxenham’s chest causing a 10-centimetre horizontal laceration. On seeing the knife make contact with his chest, Oxenham attempted to grab hold of the knife, causing a laceration to his left hand.
(i)Oxenham, who noticed blood coming from his chest and the open wound on his hand, then disarmed you and pinned you to the ground. At one stage, Oxenham let go of you because of his fear of people standing around him and you calmly stated “Do not touch my knife”.
(j)You then picked up your knife and walked towards High Street before turning into Murray Road, Preston.
(k)Oxenham went to a Chemist Warehouse, where he informed staff he had been stabbed and he was ultimately taken by ambulance to the Royal Melbourne Hospital, where he underwent surgery in relation to a pierced lung and major muscle re-attachment. He requires ongoing rehabilitation, suffers from pins and needles constantly, and has not regained full movement of his fingers of the left hand.
(l)The police released CCTV footage on 23 June 2015 and, on the following day, a search warrant was executed at your address in Hawthorn. When requested to exit the address, you refused, and forced entry was gained with the assistance of the Dogs Unit.
(m)You were arrested and interviewed at the Preston police station. During the course of such interview, you stated:
·that you may have pinched something out of the car but did not see a woman inside the car;
·that you recall being in a really full-on fight in the street;
·that you fear for your safety constantly, that is why you carry a concealed knife;
·that you do not know where you got the knife from;
·that Oxenham chose to attack you;
·that you produced a knife and said, “Please don’t fucking come near me”;
·that you did not stab Oxenham;
·that Oxenham had grabbed the knife;
·that you had a few too many Valium that day;
·that you had been off your antipsychotic medication for the last three months.
3 You were charged, and remanded on 25 June 2015, and I am informed that at the time of the plea, you had been in custody for a period of 314 days, not including that day.
4 Counsel for the prosecution tendered 25 photographs depicting the injury suffered by Oxenham (Exhibit 3).
Your criminal history
5 The prosecutor tendered your criminal record (Exhibit 2) and you agreed that the contents of such document were correct.
(a)On 19 May 2004, at the Heidelberg Magistrates’ Court, you were convicted of robbery, possessing and using heroin, theft from shop, unlawful assault and handling and retaining stolen goods. You were sentenced to an aggregate one month’s imprisonment, wholly suspended, for a supervision period of 12 months.
(b)On 24 October 2007, you were convicted of theft from shop and the failure to answer bail.
Also, on that day, it was proven that you breached your suspended sentence made on 19 May 2004, but no further order was made, due to exceptional circumstances.
(c)On 18 November 2008 at the Melbourne County Court, you were convicted of five charges of armed robbery and attempted armed robbery and were sentenced to a total effective sentence of six years and three months, with a non-parole period of three years and nine .months.
(d)On 16 December 2008 at the Ringwood Magistrates’ Court, you were convicted of assaulting police and received a sentence of one month’s imprisonment, concurrent with your then prison sentence.
Also on that date, you were convicted of unlawful assault, criminal damage and dishonestly dealing in stolen goods, and sentenced to three months’ imprisonment, to be concurrent with your then prison sentence.
Your personal circumstances, education and vocational background
6 Your counsel tendered the following documents:
Exhibit A – Defence submissions on plea;
Exhibit B – Psychological report of Mr J Ball, dated 22 April 2016;
Exhibit C – Report from psychologist, Tenille DiLorenzo;
Exhibit D – Reports from the Department of Justice and Regulation outlining courses involving you.
7 Partly based on such documents, and on other various submissions made by your counsel, I note the following:
(a)You are now 43 years old, having been born in Melbourne in
November 1972. At the time of the offending you were 42 years of age.
(b)You have one sister, four years older than you, and were raised in what is described as a very dysfunctional family, with you suffering high-level physical and emotional abuse from both your parents.
(c)At the age of four, you moved with your family to Perth, where you attended at least five different schools and had difficulty in making friends. You struggled academically and were often bullied by other students, causing you to ultimately leave school at Year 10 level.
(d)Your father was physically abusive to you, sometimes on a daily basis, and it involved the use of hands, belts and weapons. Furthermore, the emotional abuse consisted of such things as being told that your grandmother died because of you. On occasions, you would protect your younger sister from the abuse of your father, in particular.
(e)You commenced using alcohol at a young age because of this ongoing abuse and were introduced to cannabis at the age of 13. Furthermore, at the age of 15 or 16 you commenced using amphetamines and benzodiazepines.
(f)At the age of 17, you left home and began living in the streets in Perth. At the age of 19 you commenced a relationship with Kylie Dunsmore, which has been on-again/off-again for the last 14 years.
(g)At the age of 20, you moved to Melbourne to live with an aunt, and was employed as a forklift driver for two different companies over a period of about three and a half years. When in Melbourne, you had a brief relationship with Trudy Pavell, resulting in the birth of Dylan in 1996. You have had no contact with Dylan since his birth.
(h)After the relationship resumed with Kylie, a son named Jack was born in 2000, and you had your last contact with him one week prior to your arrest. Shortly after the birth of your son, Jack, you moved back to Western Australia, where you were employed for about 12 months, performing farm work, and thereafter your life becomes “characterised by transient accommodation and polysubstance abuse”. In this respect, your counsel notes that your criminal record commences in 2004 back in Melbourne.
(i)The psychologist, Mr David Ball, interviewed you at the Melbourne Remand Centre on 5 April 2016 and later on 15 April 2016. Mr Ball notes in his report that during the clinical interviews, you presented as being “manic” and had difficulty maintaining focus. In such circumstances you provided a limited personal history and account of yourself.
Curiously, you told Mr Ball that you had been in custody for about
11 months and that during that time you had not been employed within the prison nor had you participated in any program. In particular, you stated you spent much of your time “on regimes” because you did not follow the rules. Such assertions would appear to be inconsistent with the various documents contained in Exhibit D, which would suggest:
(i) That you commenced individual counselling with the psychologist, Tenille DiLorenzo on 14 January 2016 at the Metropolitan Remand Centre and had been engaging in weekly sessions up to when the note was written on 8 April 2016.
Ms DiLorenzo describes such counselling to encourage the development of self-awareness, taking responsibility for behaviour and developing more pro-social behaviours;
(ii)That you have attended regular meetings of narcotics in Port Phillip Prison over a number of months;
(iii)That you have undergone programs in relation to depression, stress and similar programs while in prison.
Your mental status examination undertaken by Mr Ball was characterised by signs and symptoms of Bipolar Disorder, for which you have a previous diagnosis. Although you reported no suicidal or homicidal plan, you did state “I want to maim people, police, screws, big shots”.
You reported that your sleep was disturbed by “horrific nightmares” and there was agitation when in your manic state. Furthermore, you reported a history of psychotic symptoms and that, at the time of interview, you currently experience both auditory and visual hallucinations. Mr Ball did note that there was evidence of thought disorder in both form and content during the clinical interviews, although you were orientated to time, place and person.
Mr Ball opined that you tend to be impulsive and make poor decisions, and frequently choose a course of action based on short-term considerations rather than long-term consequences and, particularly, you have a history of long-term drug and alcohol abuse.
Ultimately, Mr Ball stated:
"You have a previous diagnosis of bipolar affective disorder and presented with current signs and symptoms in clinical review. Based on your]personal psychiatric and forensic history and clinical review I am of the view that you satisfy DSM-5 Diagnostic Criteria for anti-social personality disorder. I consider this disorder to be severe.
You satisfy the DSM-5 Diagnostic Criteria for severe stimulant, opiate, alcohol and cannabis use disorders – in early remission – in a controlled environment. You related your previous long-term drug addiction to you dysfunctional family, subsequent homelessness and associating with negative peers.”
Your safe management in the community presents with a significant number of challenges related to your mental illness, chronic homelessness and severe substance abuse. You have not benefited from previous treatment and I remain guarded in terms of your prospects for rehabilitation.
In any case you will require intensive and structured cognitive behavioural treatment to address the anti-social aspects within your personality. You may derive some benefit from drug and alcohol relapse prevention treatment. You might benefit from support and supervision for your mental illness in the community as might be provided under auspices of a community treatment order.”
8 Your counsel submitted that the offences contained in your, what he described, “lengthy” criminal record, were largely committed to support your drug habit. In relation to the armed robberies for which you were convicted in 2008, you used a syringe to threaten people. After being sentenced for the armed robberies, you were released on parole in June 2012, and over the following period of two and a half years or so on parole, you were not involved in any offending.
Circumstances of the offending
9 Your counsel submitted that, on your instructions, the relationship with Kylie broke down at the beginning of 2014, which approximately coincides with the end of your parole period. At that time, you became homeless again, and recommenced using heroin, cannabis and amphetamines.
10 Over the period from August to December 2014, you attended the Maroondah Hospital on three occasions reporting suicidal thoughts and self-harm. In December 2014 you were referred by Centrelink to a case worker and were, apparently, abstinent in relation to drugs over the period from January 2015 to March 2015.
11 You obtained housing in Hawthorn in April 2015 and were placed on a waiting list to attend a detoxification facility. At the time of the offending, you had been using heroin, alcohol and cannabis. Furthermore, you assert that you were coming off methamphetamine from the day before.
12 Your counsel submits that the offending was opportunistic, that is to say, to obtain money to purchase drugs.
Submissions made by your counsel in support of your plea in mitigation
13 Your counsel submitted the following matters:
(a)On 24 November 2015, your then solicitors offered to plead guilty to theft and recklessly causing serious injury on the basis that the Crown accepted that your contact with the complainant, Oxenham, was “accidental”. Such offer was rejected, and there was a contested committal on 25 November 2015. On 22 December 2015, an offer was put to the prosecution that you would plead guilty to both charges with a “further factual discussion” surrounding the occurrence of the injury charge. Such offer was accepted and, in particular, it is accepted by the prosecution that your use of the knife was during the course of the scuffle. In such circumstances, your counsel submitted that your pleas of guilty should be characterised as relatively early.
(b)According to your counsel, you have given instructions that on viewing yourself on the CCTV footage, which was made public, you went to your general practitioner to get back on your antipsychotic medication.
(c)The theft of the handbag was opportunistic and was undertaken to purchase drug money.
(d)That you carrying a knife must be seen in the context that you have had substantial periods where you were homeless and, indeed, had been assaulted two weeks prior to this offending by a group of men.
(e)Although your counsel expressly disclaimed any reliance on any of the principles enunciated in R v Verdins (2007) 16 VR 269, it was submitted that the offending should be viewed in circumstances where you had been taking a significant amount of drugs and has had longstanding mental health issues.
(f)Based on the following, you have expressed remorse in relation to your offending:
(i)In response to Questions 79 and 80 of your police interview, you state you could not live with yourself if the victim had died;
(ii)In response to Questions 415, 417 and 419 of your police interview you, again, expressed relief at the victim being alive;
(iii)In response to Question 495 of your police interview, you conceded you went overboard and are taking responsibility;
(iv)you informed Mr Ball:
“I don’t’ mean to hurt people but I get desperate and I’m out of my head when the crime occurs. I hate myself for causing grief to all my victims. I wish I could take it back and I hope they get on with their lives”.
(g)That you were cooperative with police and answered all questions frankly when put to you.
(h)That none of the offending and, in particular, the injury offence – was premeditated and that the injury suffered by the complainant, Oxenham, was caused as the two were grappling with each other, which is distinct from a “pointed stab wound during a break in any fight”.
(i)That you have spent 315 days in custody, commencing on 24 June 2015. During that time, you have been involved in a number of programs and, indeed, have been attending a psychologist, all of which would suggest that you are making some attempt to improve your condition.
(j)When in custody at the Melbourne Remand Centre, you have been subject to a stricter custody management regime due to the riot which occurred on 1 June 2015, resulting in you being subject to a 23-hour lockdown.
14 Ultimately, your counsel submitted that it was conceded that an appropriate disposition, in all the circumstances of this matter, is for an immediate term of imprisonment. However, it was further submitted that any sentence of imprisonment should include a lengthy parole period.
Submissions on behalf of Counsel for the prosecution
15 Counsel for the prosecution submitted the following matters:
(a)Although conceding it was a relatively early plea of guilty, it did follow the complainant being cross-examined at a committal hearing. Although accepting that an early proposition was put by those acting for the accused, such proposition was put on the basis that the stabbing was “accidental” in nature.
(b)Ultimately, the offer to plead guilty was accepted on the basis that the plaintiff intended to wound the complainant, but not to cause serious injury. In this context, the prosecution accepted that the injury occurred in the course of the struggle (rather than an isolated intentional attack).
(c)Although conceding that you were full and frank during your record of interview and after you were apprehended, you were not cooperative when initially apprehended and it required police to negotiate with you for an hour, and the use of the Dog Squad for you to finally exit from your premises and go with police.
(d)That the offending involving the knife is serious offending when one considers protection of the community – it also must be borne in mind that children were present when the stabbing took place.
(e)That your rehabilitation prospects, based on the opinion of Mr Ball, are, at best, “guarded”.
16 Counsel tendered three Court of Appeal decisions which were said to have “somewhat similar factors”. They are:
(i) R v Thanh Phong Tran - [2009] VSCA 252;
(ii) R v Peter Danh [2009] VSCA 251;
(iii) Gosland v R; McDonald v R [2013] VSCA 269.
I have read all such decisions.
Conclusion
17 I consider that the offence of recklessly causing injury is a serious offence as is manifest by the maximum penalty of 15 years’ imprisonment. Indeed, the violent use of a knife must be denunciated in the community as such offending can lead to very serious injuries, and even death.
18 In the circumstances of this matter, the offence of recklessly causing serious injury occurred shortly after you opened the passenger door of the vehicle driven by the first complainant, reached in and stole her bag. Such offending is brazen and does give rise to fear to people who are doing no more than going about their normal business, in this case performing some shopping.
19 The second complainant was no more than an innocent bystander who went to the aid of the first complainant and acted as a Good Samaritan. During the initial chase, it was made plain to you by the second complainant and, indeed, another bystander, that you were being chased to apprehend the stolen handbag. It is in these circumstances that the objective seriousness of the stabbing offence must be considered.
20 When ultimately confronted by the second complainant, the knife had been produced and a scuffle ensued, during which time that complainant suffered serious injury.
21 In that respect, although the details are relatively scant, it is clear that Oxenham was stabbed in the lung area, which caused a pierced lung, and in the left hand, which gave rise to major muscle reattachment. Furthermore, he continues to suffer from pins and needles constantly, has not regained full movement of his fingers and still requires ongoing rehabilitation. That offending was in the presence of other people, including children.
22 Such offending was a violent response to an attempt to detain you or obtain the handbag. Your offending involved the use of a weapon on an unarmed man in a public place and, viewed objectively, it is a reasonably serious example of a crime of causing serious injury recklessly.
23 I do accept that, essentially, there was no premeditation to either offence. As submitted by your counsel, the charge of theft was most probably an opportunistic offence to obtain money to buy drugs and the second offence followed on when you were pursued. I also accept that the injury offence occurred when you were scuffling with Oxenham.
24 Such offending must also be seen in the context of having earlier prior convictions for unlawful assault, assaulting police and armed robbery, although I do accept that the last of such offences occurred in 2008.
25 I consider that sentencing concepts of denunciation, general and specific deterrence and the protection of the community are important considerations for an appropriate sentencing disposition for you.
26
I do accept that at the time of your offending you had been, as described by
Mr Ball, affected by a cocktail of substances including heroin and methylamphetamine, and that you believe that you were having a “manic episode” at the time. I also accept that you have had significant periods of homelessness and that you carry a knife for self-protection, as evidenced from your account of two weeks’ prior to this offending, being set upon by a number of other men. Be that as it may, the community cannot tolerate people carrying knives for violent purposes. To state the obvious, Mr Oxenham would not have suffered the injuries he did, if you had not used a knife on that occasion.
27 Although evidence had to be given by witnesses at a committal, I do consider that your plea of guilty was at a relatively early time in the context that although you were willing to plead guilty to both offences at a very early time, the circumstances surrounding the offence were not clarified until after the committal.
28 Furthermore, I accept that there is some evidence of remorse on your part, as demonstrated by what you told the psychologist, Mr Ball, and, indeed, in response to some of the answers during your record of interview. Again, I consider that you were cooperative with police, once you had been apprehended. However, I do not accept that you were intending or freely gave yourself up to the police when you were apprehended, and it was only after a period of about one hour and the involvement of the Dog Squad that you were willing to come forward.
29 Consistent with the opinion of Mr Ball, and taking account of your mental conditions, chronic homelessness and substance abuse, your prospects of rehabilitation are, at best, “guarded”. However, I do note, and it is to your credit, that while in prison you have undertaken various courses and sought treatment from Ms Tenille DiLorenzo, and also attended Narcotics Anonymous in Port Phillip Prison.
30 I also take note that on your account, you were going to begin detoxification shortly prior to the subject offending. Such activity followed on from a break-up with Kylie, your long-term “off-and-on partner”, in 2014, which seemingly commenced a cycle of homelessness and a recommencement of taking a cocktail of drugs.
31 Again, it would appear that over the period from January to March 2015, with the assistance of Partners in Recovery, you obtained drug and alcohol counselling which is said to have resulted in you being abstinent from drugs over the period from January to March 2015.
32 Although no submissions were made that an appropriate sentencing disposition should be a community correction order, I have considered the operation of s.5(4) and s.4(c) of the Sentencing Act 1991. Given the nature of the offending, particularly the offence of recklessly causing injury to Oxenham, I do not consider that a community correction order would be appropriate. I intend to convict you of both offences and sentence you to a period of imprisonment.
33 Your counsel has submitted that your period of parole on being released from prison after the armed robbery offending showed that you were capable of responding to some supervision and, to that end, although accepting that an immediate period of imprisonment was appropriate, there should be a large parole period to, hopefully, allow you to get some direction and supervision in your activities.
34 Consistent with the submission of your counsel, I will allow a slightly longer period of parole to hopefully give you some guidance and supervision when you are released from prison.
35 Please be upstanding:
(a)In relation to Charge 2, the charge of recklessly causing serious injury, you are convicted and sentenced to a period of imprisonment of three years. This is the base sentence.
(b)In relation to Charge 1, the charge of theft, you are convicted and sentenced to a period of two months’ imprisonment. I direct that one month of this sentence is to be served cumulatively upon your sentence in relation Charge 2.
36 The total effective sentence is 37 months and there will be a non-parole period of 22 months.
37 I declare that you have served 323 days by way of presentence detention, not including today, and such period should be administratively deducted from this sentence.
38 Further in relation to Charge 1, pursuant to s.78(1) of the Confiscation Act 1997, I will make a disposal order in relation to the items contained in the attached schedule as sought by the prosecution.
39 Pursuant to s.6AAA of the Sentencing Act, if not for your plea of guilty, I would have imposed a sentence of four years' imprisonment with a non-parole period of two years eight months.
40 Does counsel wish to say anything?
41 MS BATE: No, Your Honour.
42 MR MALIK: No, Your Honour.
43 HIS HONOUR: Yes thank you, take the prisoner. Yes, we will adjourn temporarily.
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