Director of Public Prosecutions v Lincoln
[2018] VCC 61
•2 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-01128
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN JOHN LINCOLN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2018 | |
DATE OF SENTENCE: | 2 February 2018 | |
CASE MAY BE CITED AS: | DPP v Lincoln | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 61 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Guesdon | Office of Public Prosecutions |
| For the Accused | Mr J Anderson | James Dowsley & Associates |
Introduction
Nathan John Lincoln, you have pleaded guilty to one charge of Causing Injury Intentionally and one charge of Causing Injury Recklessly contrary to section 18 of the Crimes Act 1958. The maximum penalties being 10 years imprisonment and 5 years imprisonment respectively. You have also pleaded guilty to one summary charge of Possessing a Controlled Weapon (a hunting knife) without lawful excuse contrary to section 6 of the Control of Weapons Act 1990. The maximum penalty being 120 penalty units or imprisonment for one year.
You also have admitted your Criminal Record.
Circumstances of the offence
The prosecution tendered an opening on the plea which may be summarised as follows:
At the time of the offending, the victims Gavin Ford and Jason Duckworth were living at 2 Thornbill Drive, Werribee. Also living at the house was Karen Dodd together with her 12 year old son, Jasper.
You, Nathan Lincoln were known to each of them. You had previously lived with the victim Jason Duckworth and had known each other since you attended school together.
On Saturday afternoon, 5 November 2016, you went to 2 Thornbill Drive. You believed that the occupants had taken clothing and property belonging to you and your then partner, Skye. At some point before you arrived at the house you obtained a piece of wood, being a broken chair leg, and concealed it under your clothing.
Gavin Ford was with Jasper in his bedroom located at the rear of the house when you arrived. He saw you walk past outside his bedroom window.
Karen Dodd was in her bedroom at the front of the house. The front door was closed but unlocked. She heard someone at the front of the house and went to the front door. You were standing inside the front door. You then entered the house and walked straight down the hallway, through to where Gavin Ford’s bedroom was and went straight into his bedroom.
Gavin Ford was sitting on his bed and stood up. In fear that he was about to be assaulted, Mr Ford punched you once to the side of the head. You reached behind your back and produced the broken chair leg. You hit Mr Ford to the top of the head once with the piece of wood, causing his scalp to split and start bleeding. Mr Ford put his arms up in front to protect himself, and you then hit him to the left arm once with the chair leg, causing a fracture to his forearm. This offending constitutes Charge 1 on the Indictment - Causing Injury Intentionally.
Jason Duckworth was in his own bedroom with his fiancée Tabitha Cowan. He heard yelling from Mr Ford’s bedroom opposite, and heard Ms Dodd yelling, “Stop stop!” He went out and looked into Mr Ford’s bedroom. He saw you standing over Mr Ford holding the broken chair leg. He saw you strike Mr Ford to the head.
Mr Duckworth then jumped on your back. You shrugged Mr Duckworth off and struck him to the face with the chair leg, using a backhand motion. The blow caused Mr Duckworth to bleed from the cheekbone. As you did this you were saying “You took my stuff”. You then left the house. This offending constitutes Charge 2 on the Indictment – Causing Injury Recklessly.
Mr Ford and Jasper crawled out the bedroom window and went to the footpath. Mr Ford saw you leaving the house heading towards Sanderling Street, Werribee.
The police were notified of the incident at 2.25pm by a passer-by and attended five minutes later. An ambulance was already in attendance with Mr Ford inside being treated.
Mr Ford was taken to the Royal Melbourne Hospital by ambulance. He was treated for a two centimetre wound to the crown of the head. There was a transverse fracture of the left ulnar bone with bruising and swelling. The scalp wound required three stitches. A splint and sling were applied to the forearm. He was discharged for follow up with the fracture clinic.
On 23 November 2016, Detective Senior Constable Watson observed you walking along a street in the Werribee area. You were arrested and a hunting knife was located in your backpack. This offending constitutes the related summary offence of Possessing a Controlled Weapon, to which you have also pleaded guilty.
On your arrest you were taken to the Werribee Police Station for interview. The answers you gave in your record of interview largely corroborate the version of events which constitute the prosecution summary on the plea.
The objective seriousness of the offending
It was submitted on your behalf that the conduct in relation to charge one and two should be characterised as excessive self-defence. This was based, it was submitted, on the fact that Mr Ford punched you once to the side of the head before you struck him with the chair leg. The prosecution does not accept that you acted in self-defence or that your conduct can be characterised as excessive self-defence.
In my view, while I accept that your reaction to being struck once to the side of the head may have been a response which was arguably in self-defence, your response of striking Mr Ford’s head with the chair leg you had armed yourself with before arriving at the house, and causing a wound that required stitches, was clearly excessive. I accept therefore that in relation to the first strike, it can be characterised as excessive self-defence. However at this stage you clearly had the upper hand as Mr Ford put his hands up to protect himself from further attack. At this point you hit him again with the chair leg to the left arm causing his arm to fracture. In my view, it cannot be argued that excessive self-defence extends to your second strike with the weapon. Further, your conduct must be considered in the context that you clearly had a grievance with one or more of the people in the house and you attended armed with the chair leg in contemplation of a confrontation.
Mr Duckworth, having seen your actions in relation to Mr Ford, jumped on your back presumably to prevent any further fighting. You reacted by striking him to the side of the face with the chair leg. It cannot be said that the conduct relating to this charge could be characterised as excessive self-defence either.
One disturbing aspect of this case is that this all occurred in a house where other people were present and witnessed it, particularly Ms Dodd’s 12 year old son, Jasper. There can be no doubt that to witness such violent actions in a private home would have been a traumatic experience and quite frightening to those present in the house.
In my opinion, despite the initial strike by Mr Ford, in all the circumstances, your conduct constitutes relatively serious examples of the offences of causing injury intentionally and causing injury recklessly.
Personal circumstances
Tendered on your behalf at the plea was a forensic neuropsychological report prepared by Dr Karen Scally, a neuropsychologist. It provides extensive detail of your family background, your drug and alcohol history and your psychological history.
In summary, you are a 37-year-old man born in Melbourne and raised chiefly in Lancefield, Victoria. You and your twin sister were born prematurely and you suffered a deprivation of oxygen which resulted in complications including a collapsed right lung which failed to develop. You were adopted at four months of age and raised on a farm in Lancefield being the youngest of a sibship of six.
You were also diagnosed in your childhood with ADHD and prescribed drugs for that from ages nine to 13. Throughout your childhood you unfortunately suffered abuse or trauma. You suffered physical discipline and bullying by one of your brothers. Your mother was a drug user and introduced you to amphetamines when you were around 12 years of age by injecting you with the drug. You were bullied at school and because of your intellectual disabilities, you were given a full-time integration aid. You were expelled from the local high school and attended Mount Macedon Grammar ultimately leaving school at about the age of 16.
You have a twin sister and four other stepsiblings none of which have had interaction with the criminal justice system.
In terms of your drug history, you began to use heroin at about the age of 16 until your late 20s. It was then that you took up methylamphetamine use. It is clear from looking at your forensic history dating back to 1994, that drugs have played a part in much of your offending behaviour either directly or indirectly.
Your employment history is limited to short-term labouring jobs in the plumbing and carpentry industries. Your last employment was at a disability service in Werribee in 2006 and 2007. You have been on a disability pension since the age of 16.
Dr Scally administered a number of standardised neuropsychological tests and provides detail of the result of those tests. In summary, when compared to peers of the same age as you, your cognitive profile was characterised by moderate reductions in attention and working memory skills, processing speed, verbal comprehension and verbal intellectual skills, phonemic verbal fluency and cognitive flexibility. She also found that you showed a reduced learning curve for simple verbal information and significantly reduced immediate and delayed recall of contextual verbal information. She found that your poor language skills were evident in your interactions with others which is consistent with your interpersonal difficulties you have had throughout your life.
Dr Scally also found that your social difficulties appear to be linked to an acquired brain injury due to the combined effects of the hypoxic episode at birth and early introduction to substance use which, in her view, interfered with your development. Despite this, she found that your cognitive functioning appears to have been relatively resistant to the effects of your chronic substance abuse. She concludes however that you are at significant risk of further cognitive deterioration if you return to substance use upon your release from custody.
Sentencing considerations
Mr Anderson who appeared on your behalf, submitted that Verdins principles one and three applied in your case.[1] That is, that your moral culpability should be reduced in this instance as a result of your intellectual disability and further, as a result, general deterrence should be moderated in this instance.
[1]R v Verdins (2007) 16 VR 269.
It is well settled that impaired mental functioning at the time of the offending may reduce the offenders moral culpability particularly if it had the effect of impairing the offenders ability to exercise appropriate judgement or make calm and rational choices. The principle applies clearly in an instance where an offender has a long-term intellectual handicap. In such circumstances the retributive effect and the denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[2]
[2]Muldrock v The Queen (2011) 244 CLR 120, [54].
As noted above, Dr Scally concludes that your cognitive and social difficulties appear to be best accounted for by an acquired brain injury due to the combined effects of your hypoxic episode at birth and your early introduction to substance use which interfered with your development and contributed to your poor skills such as impulse control. As such, in my opinion Verdins principles one and three have relevance in this case and I take them into account in moderating the sentence to be imposed.
As to specific deterrence, the considerations are more complex. Your criminal history demonstrates that you have been given many opportunities to address your drug use and your offending behaviour. Your intellectual disability is not such that you do not understand the effects of drug use on you and indeed how it has resulted in leading you into criminal behaviour and ultimately terms of imprisonment. You have been given Justice Plans in the past and Community Correction Orders which have been designed to be therapeutic and punitive, however you have failed to address the core problems which lead to your criminal behaviour. I accept however that your intellectual disability would contribute to your capacity to focus your attention on adequately addressing these issues. I note also that despite your cognitive difficulties, Dr Scally observes that you are relatively resistant to the effects of your chronic substance abuse.
On the first day of trial, following negotiations with the prosecution, you pleaded guilty to the two charges on the plea indictment and the associated summary charge. It was submitted and the prosecution agrees, that negotiations in this case had been ongoing since before the committal and that the only sticking point was in relation to the facts surrounding the commencement of the offending and the strike by Mr Ford. Ultimately, it was submitted on your behalf that the settled plea indictment largely represents what you had offered to plead guilty to at an earlier stage. In all the circumstances despite the fact that you cross-examined witnesses at a contested committal hearing, I accept that the plea of guilty may be considered as an early plea that has saved the community time and has saved the witnesses further trauma and the stress of having to give evidence at trial. The plea of guilty is also evidence of your acceptance of responsibility, it is evidence of remorse and it demonstrates your willingness to facilitate the course of justice.
Victim impact statements
Two victim impact statements were tendered. The first was from Gavin Ford, the victim in relation to Charge 1. The second was from Karen Dodd who was present in the house and is the mother of Jasper.
Both victim impact statements in general terms outlined the traumatic experience of being present when this occurred. In Mr Ford’s case he outlines the physical and psychological effects as a result of your attack. He also makes reference to the fact that this occurred in front of a child who was 12 at the time. Mr Ford suffered physical injuries being a gash to the top of his head requiring three stitches and his arm being broken with a transverse fracture of the left ulnar bone with bruising and swelling.
Ms Dodd conveys her reaction to witnessing the assault on Mr Ford and the effects on her and her son Jasper. She states that her son Jasper suffers from an intellectual disability and that at the time of the incident he ‘shook in fear’. She also outlines that she herself viewed the attack as horrific.
I take into account the victim impact statements and acknowledge that despite the way in which the assault began, this was a frightening experience for those who were involved and those who witnessed the event.
Prospects of rehabilitation
You have an extensive criminal history with your first recorded appearance at the Magistrates Court in 1997 for burglary and theft and other associated charges resulting in a Community Based Order. That order was breached. What follows is offences related to heroin and other drug dependence ultimately leading to your first Justice Plan in 2001. A number of court appearances follow where further orders have been imposed. The most recent order which was designed to address your substance abuse was a therapeutic order in 2013 which also contained a Justice Plan. That order was also breached and cancelled.
In all the circumstances your prospects of rehabilitation could not be assessed as good. In fact they are poor. However, I accept that while your cognitive and social difficulties must be considered in relation to your offending, they also impede you in your attempts to overcome some of the core problems, most particularly your dependence on drugs. In other words, your ability to exercise appropriate judgement and capacity to make calm and rational choices also put you at risk of being unable to fully utilise the services that are provided to you to address your offending behaviour.
What is beyond dispute is that you and the community would benefit from you being able to extricate yourself from the lifestyle that has had you in and out of courts for the best part of your adult life.
You have been in custody for just over a year and while there is not vast evidence in relation to your progress in jail, I accept the submission put on your behalf that as a vulnerable prisoner you have remained trouble free, that you have engaged in work and programs whilst on remand and have produced at least one relatively recent urine screen demonstrating that you are drug-free.
As noted by Dr Scally, you are at significant risk of further cognitive deterioration if you return to substance use upon your release from custody. She of course recommends that you engage in drug and alcohol counselling and psychological treatment. She also considers that a more holistic approach needs to be applied in your case to address issues of housing, occupational training and ongoing case management.
Sentence
You have been in custody for 374 days in relation to this matter. In my view the most appropriate sentence to address all of the sentencing considerations is a combined sentence involving imprisonment and a Community Correction Order pursuant to section 44 of the Sentencing Act 1991. An order of this type can only be imposed if the period of imprisonment is one year or less.
Nathan Lincoln, on Charge One on the indictment, Causing Injury Intentionally, you are sentenced to 10 months imprisonment. In relation to Charge Two, Causing Injury Recklessly, you are sentenced to 4 months imprisonment. Two months of that sentence will be cumulative on the sentence imposed in relation to charge one making the total effective imprisonment component of the sentence 12 months. In relation to the related summary offence of Possessing a Controlled Weapon without lawful excuse, you are sentenced to one month imprisonment to be served concurrently with sentences imposed on Charges One and Two.
On the completion of that 12 months sentence, despite having been assessed as unsuitable for a Community Correction Order, you will be released on such an order for a period of 12 months. You were assessed as unsuitable because of your high risk of reoffending and the fact that you have breached a number of similar orders in the past. However to release you into the community without any supervision and without any structure to deal with your drug and mental health issues would put you and the community at greater risk.
The Community Correction Order I am imposing is a therapeutic order. Because you have already served over 12 months in custody, in my opinion that appropriately addresses the punitive component of the sentence. Therefore, there will be no unpaid community work condition attached to the order as that would be in the circumstances, unduly punitive. The Community Correction Order is of course designed to assist you in dealing with the core issues that relate to your offending behaviour. It will contain drug and mental health treatment conditions and programs to reduce the risk of reoffending. I am also going to include a Judicial Monitoring condition.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 373 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to 18 months imprisonment with a non-parole period of 12 months.
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