Director of Public Prosecutions v Lazdins

[2023] VCC 2309

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01566
Indictment No. P10322128

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAAK LAZDINS

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023
DATE OF SENTENCE:	8 December 2023
CASE MAY BE CITED AS:	DPP v Lazdins
MEDIUM NEUTRAL CITATION:	[2023] VCC 2309

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Pleas of guilty – Recklessly cause serious injury – Summary charge possess controlled weapon without excuse – Youthful offender with no prior or subsequent matters – Offending occurred in public place with a lethal weapon on an unarmed victim – Accused intoxicated at the time of offending – Fight initially occurred inside nightclub but victim did no provoke response by accused in carpark outside – Consequences of stabbing dire and lifelong for victim (physical, mental and financial) – Expert opinion – Issues of anger management, alcohol abuse underpinned by persistent immaturity – Alcohol use disorder of moderate severity with drinking at hazardous levels – Alcohol use causes emotional disinhibition liable to lead to increased risk of aggressive  behaviours – Tendency to associate with dysfunctional individuals – Relatively vulnerable prisoner

Cases Cited:Winch v The Queen (2010) 27 VR 658

Sentence: Convicted and sentenced to Youth Justice Centre detention two years’ aggregate term – s.6AAA Sentencing Act 1991 (Vic) declaration

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr D. Cronin	Tony Hargreaves & Partners Lawyers

HER HONOUR:

1Isaak Lazdins, you have pleaded guilty to one charge of causing serious injury recklessly and to the Summary Charge of possessing a controlled weapon without lawful excuse.

2The maximum penalty for recklessly causing serious injury is 15 years' imprisonment, whilst the maximum penalty for the Summary Offence is 240 penalty units or two years' imprisonment.

3In sentencing you I must have regard to the maximum penalties as these reflect the seriousness with which Parliament regards each of the offences.

4You were 18 years old at the time of the offending.

5You were living with your family in an outer suburb of Melbourne.

6The victim in this matter, Mr Hayden Clack, was 21 years old at the time of the offending and living in an outer suburb of Melbourne also.

7You and the victim did not know each other personally; however, you had met before the incident through mutual friends as the victim's friend, Ms Tia Lavender, had previously dated your cousin.

8On Saturday 11 February 2023 at about 10 pm the victim attended a nightclub in Ringwood with a friend of his, Levi Lowe, as they were supporting a friend of theirs who was playing a trial DJ set.

9After this, the victim and Mr Lowe left the nightclub and attended another next door.

10They had bumped into other friends in the second nightclub at various times throughout the evening.  One of the friends was Tia Lavender and her friend, Kiah Burgess, who Mr Lowe used to be in a relationship with which had not ended well.

11At 2.47 am, the victim joined a group of his friends at one of the upstairs tables.  You were sitting on a bench about three metres away talking with Ms Burgess.  Two minutes later, the victim approached you and spoke to you about Ms Burgess.  A friend of yours tried to usher the victim away.

12You then stood up and a friend of yours pushed the victim away. You were then joined by another friend who pushed the victim, hitting the victim's friend in the head in the process and causing her to fall to the ground. A fight then ensued for about 10 to 15 seconds where punches were thrown by four of the five males, including the victim and you.

13The fight was broken up by security and the victim was escorted downstairs and left the venue via the front door with three of his friends.

14Whilst this was happening Tia Lavender attended upstairs and began yelling at you about the fight, leaving shortly after this and she attended the car park at the back of the venue to speak to the victim and his friends. She told them to leave because you were coming outside.

15The victim and his friends had begun to walk away; however, the CCTV footage shows that upon Ms Lavender speaking with them, they commenced to walk back again. You can be seen with your friends walking around the corner and as you did so, you pulled a knife from a sheath which was tied around your waist and hidden under your shirt.

16Whilst holding the knife in your left hand you walked towards the victim, pushing Ms Lavender out of the way as she was trying to get in between you and the victim. When you got close to the victim, you thrust the knife in an underarm movement, stabbing him and puncturing his lower abdomen, which caused him to immediately fall backwards onto the ground. You then turned around and ran away whilst members of the victim's group stayed to provide first aid to the victim.  Your friends, Ridley and Sticht, also walked away.

17A witness who was standing in the car park at the time of the incident chased you down the alleyway before losing sight of you.

18Ridley and Sticht got into a car in the car park and drove out quickly, stopping to collect you on Maroondah Highway before driving away.

19At some stage on the way towards your home, you threw the knife out of the window of your friend's car, however, extensive searches of the relevant area proved fruitless.

20An off-duty nurse and the owner of the next-door nightclub attended to help the victim and police and paramedics arrived shortly after this.

21You were quickly identified by staff of the nightclub who provided police with your driver's licence.

22It is apparent that you were dropped home at around 3.25am. At
3.29 am you called Triple 0 on your mobile phone, saying to the operator that you were 'drunk and got into a confrontation behind the Void Nightclub', where you produced a knife.  You said you did not mean to stab someone, but you believed that you had stabbed someone.

23You were arrested at your resident at around 3.33 am when you walked down the driveway of your home towards police identifying yourself to them.

24You were then placed under arrest and taken to the Ringwood Police Station where you were deemed unfit for interview by a forensic medical officer.  This was due to your level of fatigue.  You remained in the police cells for some time before being interviewed at 3 pm when you were then charged and bailed.

25During the record of interview, you initially answered 'no comment' to questions put, however, as the interview proceeded you said that the whole thing was an accident, and you did not mean for it to happen.

26You provided largely 'no comment' answers until you were questioned about the dispute upstairs at the nightclub, where you elaborated on the circumstances, saying it was about Tia Lavender's little brother with whom you were no longer mates.

27When questioned further in respect of the stabbing, you said that you were carrying the knife for protection, despite not expecting trouble, but you would not elaborate on where you were expecting trouble from.  You said you did not want to stab the victim, but you just wanted to scare him saying that the whole point of producing the knife was intimidation.  You said that you hoped that if you pulled it out people would just 'fuck off'.  When you were holding the knife towards the victim, you said it was 'like he came into the blade', 'colliding with the knife'.

28Having viewed the CCTV footage, the account that you gave of the incident do not resemble what actually occurred – you are seen to quickly approach the victim after perhaps a brief period of remonstration from him and having pushed Ms Lavender out of the way you drove the knife into him.

29In relation to disposing of the knife you told police that you threw it out of the car as you were panicking.

30The victim was taken to The Royal Melbourne Hospital with major intraperitoneal bleeding.  He underwent emergency surgery, including a distal pancreatectomy, splenectomy, and repair of lacerations to his stomach, bowel, and kidney.  The victim stayed in hospital until 24 February this year.

31As a result of the incident the victim is unable to consume alcohol again and is permanently being monitored for diabetes. He also has two large scars on his abdomen, one being from the stab wound and the other from the surgery performed on the night.

32The victim was readmitted to The Royal Melbourne Hospital on
27 February 2023 due to severe abdominal pain which was resolved by staff, and he was discharged the following day.

33I shall refer to the impact on the victim and others in due course.

34Mr Lazdins, your offending is serious and deserves a punishment which is just in all the relevant circumstances.  Your conduct must be firmly denounced.

35Although I do not find that you left the nightclub in search of the victim, as soon as you saw him, from a decent distance away, you drew the knife and walked rapidly toward him, apparently determined to stab the victim in my view.  I have viewed the CCTV footage on a number of occasions, and I have observed your left arm swinging back then forward in a brisk motion toward the victim before apparently removing the knife and leaving the victim for dead.  Whilst others had the decency to look after him, you and your friends took off.

36The victim was not armed, which would have been apparent from his raised arms and hands which can be seen very shortly before you stabbed him.  Whilst your intoxication is not an aggravating factor, nor is it a mitigating one, it heightened your apparent anger toward the victim leading to dreadful consequences.  The attack by you was not entirely out of the blue in the context of the fight that had occurred shortly beforehand in the nightclub, however, there was nothing that the victim did in the car park that provoked your outrageous response.

37Further, your offending occurred in a public place where others were present, and you used a lethal weapon which you plunged into the abdomen of the victim.

38In sentencing you, I have had regard to the remarks of our Court of Appeal in Winch v The Queen (2010) 27 VR 658 at paragraphs 34 and 35 where they said:

'It is important to recall that RCSI is a very serious offence.  It carries a maximum penalty of 15 years.  An examination of the elements of the offence reveals why this is so.  First, the offence involves the causing of serious injury of the victim.  Secondly, the mental element of the offence – recklessness – means that the offender has consciously disregarded a known risk.

The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim and went ahead regardless of that probability.  This is not mere carelessness, where the offender fails to appreciate the risk of injury.  This is a conscious disregard of a risk of a serious injury, which the offender knows to exist.' [34-35]

39Although one sees more serious examples of recklessly causing serious injury where multiple blows with a weapon or otherwise are inflicted, I do regard your offending as a serious example of the offence in all the relevant circumstances.  Certainly, the outcome of the stabbing was dire and will have long lasting effects for the victim which is also relevant.

40There was nothing placed before me which would impact on your moral culpability which I find is high.

41I take into account the impact on the victim, as well as members of his family and Tia Lavender.

42Hayden Clack said that his injuries had impacted a lot on his life and had made him feel depressed.  He said that he did not have much hope for the future.   He had planned and worked hard to reaching the stage of almost finishing his apprenticeship, however, your offending had prevented this from happening.  He said that he had to stop doing a good deal of the things that he enjoyed because of his injuries and problems with his mental health, which he has suffered due to your offending.

43He felt he had to break it off with his girlfriend as he was not coping and needed to focus on himself.  He lost contact with his co-workers, but he said that he was lucky to have his friends stick by him and support him.  He said his family had also done this, but the incident had put a lot of stress on everyone.

44He said that he felt angry that his efforts to resolve the situation by leaving the nightclub were not successful.  He said that he would always have trauma from being attacked and feared for his health in the future and the prospect of being attacked again if he went out.  He felt frustrated that he would not be able to fulfil his goals in life and do things that he liked to do like travelling.  He could not play sport and he could not work full-time.  He was permanently on a diet due to his stomach blockages and constantly woke up with night terrors and sweats.  He has had to see a psychologist every second week which was paid for by his mother, being treated for depression and anxiety.  He had to take heaps of medication, anti-depressants, antibiotics to replace his spleen function and stomach medicine.

45He said that his economic future is not good unless he can complete his apprenticeship and continue the job he really enjoyed doing.  He said that his health had improved, however, he still had a lot of challenges and regular setbacks, but things were slowly getting better each day.

46He said that the physical impact of the crime was that he had lost his spleen and part of his pancreas.  He continued to have severe abdominal pain due to damage to his intestines which had needed hospital treatment on two occasions.  He needed regular iron infusions due to most of his blood being donated which also forced him to have to have all his vaccinations again.

47He has been unable to finish the remaining one year and four months of his four-year plumbing apprenticeship as he could not apply for the plumbing positions he needed in order to complete TAFE training – this was due to his stomach pains and fatigue.  He could not commit to full-time work.  He worked for a small plumbing company and his employer could not hold his position open.  He now worked on a casual basis as a labourer in a precast concrete wall business where his employer was very flexible with him attending work due to his illness.  He said that since he had started the iron treatment his strength had improved, and he felt stronger and could do more days of work.  He could no longer play interclub basketball however, which was his main sport.

48He said he was worried that he might not be able to finish his plumbing apprenticeship and get his qualification, and he was also worried that because he had lost his spleen the dirty work plumbers do might lead to illness and stop him working in that area.

49In terms of financial impact, he said that if he was unable to finish his apprenticeship due to being unable to meet the employment requirements for finishing TAFE study, and if he did not get his qualification he would not be able to continue his plumbing career with its high pay.  Again, he said that he was concerned that the unhygienic nature of the job and loss of his spleen would lead to continued health problems.  He said he was very thankful for his current employer giving him casual work; however, his wages would be much less for the rest of his life unless he could obtain the plumber qualification and be able to work in that industry.

50He said that his mother and stepfather had spent a lot of money supporting him since the stabbing, paying many medical and psychiatric treatment bills and as he lived away from home and were also helping him with general living expenses when illness and tiredness prevented him from working.

51In terms of social impact of the crime, he said that he had a year and four months to go to finish his plumbing apprenticeship which included three weeks TAFE classwork, his injuries prevented him from seeking full-time employment in the trade and TAFE rules would not allow him to complete his course until he was employed.

52He said that his immediate family on his mother's side, his stepfather, sister and younger brother had all been affected by his injuries and had needed various levels of psychological help which his parents had paid for.  His younger brother also needed psychological assistance.  He said his father, who lived in America, had come to Australia when he was injured. They have a close relationship with their cousins in Ireland and Wales and sometimes travel to special events such as weddings, and he was in regular touch with his father and half-sister in America who he would like to have the opportunity to visit in the future.  He said the ongoing problems with his injuries and the need for exorbitant travel insurance premiums, particularly for America, made overseas travel opportunities almost impossible.

53I have also had regard to the victim impact statements of Cheryl Clack, Peter Witt, Shannon Hurley and Tia Lavender, each of whom spoke of the various and profound ways that your offending has impacted upon them and their ongoing struggles in this regard.

54In sentencing you, I have also taken into account the medical material, which was tendered at the plea hearing, the photos of the victim in hospital and of his extensive scars.  These make for most confronting viewing.

55In your favour, you have no prior convictions and no subsequent matters.

56It was conceded by your counsel that the offending was aggravated by the fact that it occurred in a public place and on an unarmed victim.  I accept that the offending was not planned, but fairly spontaneous upon you seeing the victim in the car park, however, as I have said, you drew the knife at an earlier stage when you were a distance away from the victim rather than producing it in the course of a physical engagement with him.

57I accept that you called Triple 0 after the offending and advised the operator of the stabbing and the victim's location, although you also tried to give a good account of yourself which was not accurate. However, at least at a stage later in the piece, you called for emergency help for the victim.

58You pleaded guilty to these offences at an early stage which entitles you to a significant discount in the sentence you would otherwise receive.  In taking this course, you have saved the witnesses the time and trouble of giving evidence, especially the victim and direct witnesses, and you have saved the community the time and expense of contested proceedings, both in the Magistrates' Court at a committal hearing and at trial. Further, the law requires me to make a palpable allowance in your favour for helping to contribute to the reduction of backlog in trials caused by the Covid-19 pandemic and I have done so.

Remorse

59I accept that you have some remorse and insight into the seriousness of your offending, and it appears to me that this is developing.  As the learned prosecutor said at the original plea hearing, you told Mr Newton, psychologist, which was in July as I understand it, 'I do feel bad for his injuries; but he was in a fight with me and I feel like it's hard to be remorseful when someone has it in for you.  He was out to hurt me, and he got hurt and that's the way it goes'.  Also, Mr Newton remarked … 'the gravity of the offending and the superficiality of Mr Lazdins' reflections upon it leave me concerned that without concerted intervention it will only be a matter of time before these dysfunctional traits become an established and entrenched part of his personality'.

60On the other hand, your mother and aunt have spoken about you expressing remorse many times since the offending and that you have spoken of the damage you had done to the victim and his family.  You have also expressed sorrow for the stress and heartbreak you have brought into your own family's lives.  Your aunty also spoke of your remorse and Mr Doyle said that from his conversations with you he gathered that you realised the gravity of your situation and the harm you had caused.

61Also, you have written a letter of apology addressed to the victim which is dated 31 August 2023, expressing your sorrow for the suffering and stress you had put everyone through, and an understanding that your actions had caused lasting effects on the life of Mr Clack, his family and your own family, which was something you would carry forever.  You said that no young man deserved to have lifelong injuries inflicted on him or come that close to death at the hand of another.  You said that you were so sorry and hoped that all could heal and find some kind of clarity over time.  This letter was not passed on, and it was not appropriate that it should have been without any permission given in that regard – it will be a matter for the victim and his family as to whether he wishes to read the letter in full.

62You also made appropriate and insightful expressions of remorse when speaking with the author of the Youth Justice Centre pre-sentence report, after having heard the victim's mother read her victim impact statement at the plea hearing, and after having considered the other victim impact statements which I understand you have read. Your Counsel made further submissions in this regard, and I have taken those onboard.

63At the end of the day, I accept that you have some heartfelt remorse and a level of insight into your actions, however, in view of what you told Mr Newton in July, there is still some work to do in that regard. Having said this, your more recent expressions, and indications in relation to insight show that you are making some solid progress in that regard.

64In sentencing you I have taken into account as a whole the report of Mr Newton, psychologist, dated 29 August 2023.

65He was of the view that you had reached a watershed moment in your life - that, on the one hand, your problems were clear, with serious issues relating to your anger management and drinking being underpinned by your persistent immaturity.  On the other hand, you enjoyed close family support and had stable personal circumstances as well as development of good work skills.  He said, 'these features suggest that, provided he could be motivated to engage with rehabilitation, there would be a foundation for a degree of optimism regarding his prospects'.  He went on to say that the more you could be provided with a context where you could engage with treatment you required, the more you could be provided with support and oversight to ensure that you did so, and the more influence of negative individuals could be contained, the more positive your prognosis would be.

66He said, 'I would note that, given his youth, his persisting immaturity and his tendency to affiliate with dysfunctional individuals, I would consider Mr Lazdins to be a relatively vulnerable prisoner and so would reiterate my concern about the likely impacts upon his longer-term adjustment of any incarceration with more "hardened" prisoners'.

67As noted by the learned prosecutor, Mr Newton stated that heavy drinking had been central to your social activities as at the time of the offending, and it is also evident that you have anger management issues in the context of immaturity and mixing with negative influences.  I understand that you have reduced your consumption of alcohol following the offending, and indeed you have now abstained since the plea hearing I am told, and I accept that, however, in Mr Newton's report he noted that as at that time you still drink alcohol most days, including drinking more than six alcoholic drinks at least three days in a given week.  Mr Newton diagnosed you with an alcohol use disorder of moderate to severe intensity, noting that you had not engaged with any self-help groups or made use of other resources to assist with a process of addressing your drinking, and it was clear that you continued to drink at hazardous levels at that time.

68According to Mr Newton you could not demonstrate any developed understanding of relapse prevention or harm minimisation principles and continued to see heaving drinking as normative – that you were unclear about the risks to your health which this posed or disinhibition which occurred.  You acknowledged to Mr Newton that you had problems with anger and that the offending which brought you before the Court was a most graphic example of a situation where you lost control of your anger, however, you acknowledged openly that this was not the only instance.  Mr Newton noted that a final aspect intensifying problems with anger management was your abuse of alcohol and that when affected by it, you would be likely to become emotionally disinhibited and engage in behaviours that have a high potential to result in an escalation of the level of conflict which also increased the risk of aggressive behaviour on your part.

69I understand that in fact you have engaged in some sessions in a bid to address your alcohol use issues, namely four and a half of these as at the plea hearing.  I was told that your work commitments prevented you from engaging with a psychologist to address your issues beyond these sessions.  However, I was told that you had moderated your alcohol intake as at that time, and that you now drank alcohol only at home or with your family when out for dinner.  Therefore, you have removed yourself from mixing in other social situations such as the one which saw you offending on the occasion for which I sentence you.

70In your Counsel's most recent submissions, I was told that you have abstained from alcohol, as I have said, since the last hearing as I have said, and you acknowledge that your drinking was at an unhealthy level, and that it was best to detoxify before going into custody - these are positive signs which are relevant to your prospects of rehabilitation.

71In sentencing you I take into account your background.

72You are the youngest of three brothers and you have several half-siblings.  You live with your parents at the family home in a suburb of Melbourne.  Your family are most supportive of you and were in Court at the original plea hearing and they are here again today in support of you.  You have limited formal education having left high school in Year 10.  You are currently employed full-time, completing your third year of plumbing apprenticeship with your father and you also work as a labourer for a scaffolding company, earning around $900 per week after tax.

73You have never had a romantic relationship and you have no children.

74I was told that you do not have issues with illicit drug use, and you accept that there is further work to be done in terms of your alcohol consumption, albeit that this has reduced to zero since your offending as of today.

75I accept that the character references are supportive of you and that the referees show appropriate insight into the seriousness of your offending, which therefore means that they are appropriate supports in your life to help you on a path to rehabilitation.

76In all the relevant circumstances, including that you are of otherwise good character, and in view of your lack of criminal history or subsequent offending, your abstinence from alcohol, your strong family support, work history and stable accommodation and developing remorse and insight, but also factoring in your level of immaturity, your issues with alcohol, and anger management, I rate your prospects of rehabilitation as being guardedly very good.

77I place fairly minimal weight on specific deterrence and protection of the community.  However, I place strong weight on general deterrence in a bid to deter others from offending as you have.

78You are a young man, and the law requires that I do what I can to maximise your prospects of rehabilitation. This is because if you are rehabilitated, this is a good thing, not only for you but also for the community as the members of it will be better protected.

79In sentencing you I have also factored in that this will be your first period in custody, albeit at Youth Justice Centre and I have also factored in Mr Newton's remarks in relation to the negative influences to which you would be subjected if you were placed in an adult gaol.  Your issues in relation to immaturity and your lack of exposure to any detention regime is also relevant to my determination of an appropriate sentence.

80In sentencing you I have also had regard to current sentencing practice, although there are a whole range of sentences in relation to offending such as yours.  Also, current sentencing practice is but one consideration in sentencing you and it is not a controlling one.

81It was agreed by the parties that in your case it was appropriate to have you assessed, and if appropriate to sentence you to a term of detention in a Youth Justice Centre and I agreed. With that in mind I had you assessed for such a disposition and the report is now to hand.

82You are assessed as suitable for such a disposition. In determining an appropriate period of detention, I have had regard to the weight that I need to apply to all relevant sentencing considerations, and the need to maximise your chances of rehabilitation. Notwithstanding that you are going to be in a Youth Justice Centre rather than adult gaol, I am mindful of some of the more seasoned offenders and negative influences that you will be rubbing shoulders with, which is a concern in view of your level of maturity and other matters referred to in
Mr Newton's report.

83You have commenced a path toward rehabilitation whilst in the community and you would do well to stay on that path whilst in Youth Justice Centre and upon your release.

84You are convicted of the offences, both on the indictment and the Summary Offence.

85You are to be detained in a Youth Justice Centre for an aggregate term of two years.

86If not for your pleas of guilty I would have sentenced you to a total effective sentence in an adult prison of five years with a non-parole period of three years.  Is there anything arising from counsel?

87MS PAGANIS:  No, Your Honour.

88MR CRONIN:  No, Your Honour.

89HER HONOUR:  Very well, thank you, could you please remove
Mr Lazdins? We will now adjourn.

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