Director of Public Prosecutions v Lovett

[2020] VCC 1994

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised

Not Restricted

 Suitable for Publication

GENERAL LIST

Case No. CR-20-00729

Indictment No. L10985538

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON LOVETT

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2020
DATE OF SENTENCE:	8 December 2020
CASE MAY BE CITED AS:	DPP v Lovett
MEDIUM NEUTRAL CITATION:	[2020] VCC 1994

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:              Intentionally causing injury – theft – indictable offence whilst on bail

Legislation Cited:      Crimes Act 1958 (Vic), s18, s74(1); Sentencing Act 1991

Cases Cited: Bugmy v R (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269; DPP v Dalgliesh (2017) 262 CLR 428

Sentence:Total effective sentence of 24 months’ imprisonment with a non-parole period of 18 months. Section 6AAA declaration: total effective sentence of four years’ imprisonment, with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M Sargent	Office of Public Prosecutions
For the Accused	Ms V Drago	Emma Turnbull Lawyers

HIS HONOUR:

1Aaron Lovett, you have pleaded guilty to one charge of intentionally causing injury pursuant to s18 of the Crimes Act, the maximum penalty being 10 years’ imprisonment, with one count of theft pursuant to s74 of the Crimes Act, the maximum penalty being 10 years.  You have also pleaded guilty to an uplifted summary offence of committing an indictable offence whilst on bail, which has a maximum penalty of three months’ imprisonment.

2The circumstances of offending are as follows. 

Charge 1

3At approximately 3.50am on 22 December 2019, you arrived at the Preston Hotel in the company of a male and a female.  You sat in the gaming room for almost an hour.  At approximately 4.40am, the victim arrived at the Preston Hotel and walked through the gaming area to take a seat at a pokies machine.  You approached the victim and sat next to him for two to three minutes.  At 4.43am, you stood up behind the victim and used your left hand to hold him whilst you produced a knife from your right pocket, and pressed it up against the victim’s neck.

4A struggle occurred between the two of you.  You stabbed the victim three to four times to his head and upper body with the knife.  This constitutes Charge 1, intentionally causing injury.  A security guard heard aggressive voices and went to the pokies room entrance where he saw a group of males standing up and the victim was bleeding from his head.  You were standing near the bar wearing a dark blue jumper and you were observed by the security guard to be behaving aggressively towards the victim, talking to him about money.

5After being told by the security guard to “back off”, you left the Preston Hotel on foot and you were last observed walking in a westerly direction along Spencer Street.  The entire incident was captured on CCTV, which was tendered on the plea.  Police arrived at the scene at 5.10am.  The victim was taken by ambulance to The Royal Melbourne Hospital, where he later decamped, before being discharged by hospital staff.  Medical records produced under warrant detailed that the victim suffered:

(a)     two stab wounds to the head, which had a small arterial bleed;

(b)one stab wound to the left arm and shoulder; a superficial laceration;

(c)     one superficial laceration to the right hand.

6The head lacerations required stitches and sutures to close the wounds.  The shoulder wound also required stitches.  The discharge summary concludes that there was no acute intracranial or cervical spine injury identified.  There was a small right parietal subgaleal hematoma.  Ambulance notes and medical records indicate the medical staff were told the weapon used was a Stanley knife.

Charge 2

7At approximately 3.40pm on 31 December 2019, the victim, Mr Shell, parked his vehicle at the Northland Shopping Centre near the entrance to Myers on Murray Road.  He left the vehicle unlocked and went inside to try to locate his wife.  Upon returning to his vehicle, the victim noted the contents of his console were spread out over the passenger-side seat.  The following items were stolen from the vehicle:

(a)One car key valued at $220;

(b)One garage remote control;

(c)Forty dollars cash in change.

8You were captured on CCTV footage stealing the items from the vehicle.  This constitutes Charge 2, theft from a motor vehicle. 

9Charges 1 and 2 were committed whilst you were on bail for unrelated offending and these constituted the related Summary Offences 4 and 6.  As to the arresting investigation, the weapon used during the offending has not been recovered.  You were identified as the offender at the Preston Hotel, after analysis matched your fingerprints to a bottle, and were seen using it on CCTV before entering the venue on the night of the offending.

10You were arrested by police at approximately 10.23am on 6 January 2020, at an address at Mill Park.  On police attendance at the property, you attempted to evade police by jumping a side fence.  During the record of interview conducted at approximately 12.30pm on the same day, you remained mute.  Your plea of guilty was entered at a committal case conference on 4 June 2020.  The prosecution concede that you have entered a plea of guilty at the earliest possible stage and you should receive the benefit of an appropriate sentencing discount.  You were remanded in custody on 6 January 2020 and the pre-sentence detention as at today’s date is 337 days. 

11Your criminal history is quite lamentable.  You first came before the Court as a 17-year-old on 16 February 1999 and you received 12 months of a Community Correction Order for offences, including theft from a motor vehicle, burglary and theft of a motor vehicle.  On 25 January 2000, you received a 24 months’ CCO for intentionally damaging property, assault in company, assaulting with a weapon and possessing dangerous articles. 

12You received another 18 months’ CCO on 29 August 2000 for assault in company and burglary,  a CCO on 14 December 2000 for assault with a weapon and assault in company.  At the age of 22, you were convicted of reckless conduct endangering life, two counts of armed robbery (one was an attempt) theft of a motor vehicle and theft.  You received a total effective sentence of two years and nine months’ imprisonment.

13Still undeterred, on 17 July 2003, you received a total effective sentence of six months for charges, including assault with a weapon, assault in company, possessing a dangerous article, intentionally damaging property.  The programs continues in a similar vein, such that on 10 September 2014, you received a total effective sentence of 90 days’ imprisonment, and on 2 May 2017, you received a total effective sentence of five months’ imprisonment for similar offences, and on 2 May 2017, you received an 18 months’ aggregate sentence with a non-parole period of six months for threatening to inflict serious injury and unlawful assault.

14On 14 August 2019, you received a six months’ aggregate sentence for possessing a controlled weapon, unlawful assault, committing an indictable offence whilst on bail and theft of a motor vehicle. 

15Your personal circumstances are as follows.  You were adopted when you were some six weeks’ old.  You have three sisters and one brother, all of which are older than you.  Your adoptive parents were both physically and emotionally abusive.  They abused substances and were addicts.

16You were subjected to racial taunts by your mother because of your Aboriginality.  At around aged nine, your sister was murdered.  At around aged 12, you began acting as a carer for your mother who lost both legs due to blood clots.  Your father abandoned your mother shortly after her death.  You were also responsible for the care of your deceased sister’s children.  After feeling overwhelmed at around age 16, you left the family home.

17You were contacted by your biological mother at age 26.  This was the only contact you had with her.  She is now deceased.  You obtained your biological father’s contact details.  You called him, but you were told by your father that he did not want any relationship with you.  Due to the dysfunctional home environment, you infrequently attended school.  You completed Year 9.  You had employment over the years, most significantly as a bricklayer for some nine years.  For three of those years, you were self-employed.  You have also been employed as a truck jockey in fencing and on trawlers.

18Unfortunately, you began using heroin at around age 14.  You began using methylamphetamine at around 28.  Prior to your remand, you were using both heroin and ice daily.  You have a history of polysubstance abuse; however, you have been able to maintain periods of abstinence in the past.  You were in a relationship with your former partner, Kelly, for some 17 years.  You share two children together, Magenta and Jarrah.  You and Kelly have not been together for approximately four years.  The relationship was fraught with difficulty, including substance abuse by both of you.  Kelly has the full-time care of Magenta at present and as of next year, also Jarrah.  She has been abstinent from drugs for some two years.

19In large part, you have remained in Melbourne to be close to your children.  This has been problematical due to your exposure to negative peers and drug use.  You do remain confident, however, in Kelly’s abstinence and you take comfort that the children are secure in her care.  You also have fathered a one-year-old daughter, Shilo; however, you have no contact with her.  You instruct your counsel that upon release from custody, you inspire to connect with your biological family in Portland and reside there, or otherwise in Country Victoria.  You remain in contact with organisations such as Winmarra, for housing prospects and support.  I should note that you are an Aboriginal male aged 38, of the Gunditjmara tribe and you were aged 37 at the time of this offending. 

Mental Health and Cognitive Functioning

20You suffer from the following conditions.  First, persistent depressive disorder, as per the report of psychologist Aaron Cunningham, dated 19 August 2020 at page 3.  You also suffer from specific learning disorder, according to neuropsychologist, Dr Linda Borg, in her report dated 30 September 2020 in paragraphs 39 to 40, and you also suffer from an acquired brain injury.

21In his report, Dr Cunningham opines that:

“… Mr Lovett’s chronic depressive illness stems from instability in his childhood environment.  He experienced a lack of nurturance, care, safety and stability.  He was exposed to trauma.  He lacked stable prosocial role models.  Mr Lovett’s depression is perpetuated by his instability in employment, accommodation and drug abuse.  … .”

22You were prescribed the antidepressant medication, Avanza, as well as Methadone.

23Dr Borg diagnosed you with a specific learning disorder in the form of dyslexia, with reading and spelling abilities at Grade 3.8 and Grade 2.8 levels respectively.  In her reports, Dr Borg also outlines various deficiencies suffered by you and diagnoses you as suffering from impaired cognitive functioning, due to the acquired brain injury.  These deficiencies and their effects on you are summarised as causing impaired, impulse control and a motive reactions, exacerbated when under the influence of drugs or alcohol.  It is accepted that the cause of your acquired brain injury, in the opinion of Dr Borg, is attributable to traumatic brain injury and polysubstance abuse. 

Gravity of offending

24The prosecution submit that the following features are relevant to the assessment of the nature and gravity of the offending, with respect to Charge 1.  First, the victim’s head lacerations required stitches and sutures to close the wounds.  The shoulder wound also required stitches.  Secondly, the offending weapons to have been pre-meditated, in that you were carrying a weapon.  Thirdly, you were under the influence of drugs at the time of the offending and as per the admission made to Dr Borg, in her report dated 30 September 2020, paragraph 19, and also fourthly, the offending was committed whilst you were subject to an undertaking of bail.

25In view of those features, the prosecution submits that the offending falls to be assessed as a high range example of intentionally causing injury.  However, they do accept that the offending, the subject of Charge 2, is low level and was motivated by a need for money to buy drugs.  It was committed whilst you were subject to an undertaking of bail.  I note that no victim impact statement has been provided, however, the prosecution submits that the Court can reasonably infer that the offending would have been a terrifying experience for the victim, and I am prepared to make that inference. 

26Your counsel has submitted that the offending, the subject of Charge 1, is one whereby it was impulsive, unplanned and it was a confined incident in the context of a short struggle.  It was submitted that you properly and without incident, left upon direction by security at the venue.  It is also submitted you have no recollection of the incident due to being heavily affected by substances at the time and in your counsel’s submission, the objective gravity of the offending is mid-range.

27Once again, the offending with respect to Charge 2 is submitted to be impulsive and unplanned.  The quantum involved is minimal.  It is submitted that this is low level offending and entirely non-confrontational.  Although you have a recollection of being at Northland, you do not recall the offending, and again, due to being heavily affected by substances at that time.  I accept these submissions.

Mitigating circumstances

28I accept that you indicated an intention to plead guilty at the earliest possible opportunity and but for the matter being uplifted, you sought to have it finalised in April of this year.  You are entitled to a significant discount for this plea of guilty, and I accept that submission.  I also accept that there is a high utilitarian benefit to the plea of guilty in this case, given the disruption to the courts caused by COVID-19.  I also accept that you have shown remorse once - all through your plea of guilty, at the earliest opportunity.  Also, your conduct whilst on remand.  I note that you have undertaken a number of courses directed towards your rehabilitation, the certificates of which have been tendered on the plea.  Also, Dr Borg acknowledged that you appear to indicate remorse for your actions and an appreciation of the relative impact of such behaviour on your victim.  See Dr Borg’s report above at paragraph 20.

29As to conditions of incarceration and burden of imprisonment, you have largely spent your time on remand at Hopkins Correctional Centre, where you remain at present.  You have been subjected to lockdown and you are no longer able to receive personal visits and you have limited access to therapeutic and employment opportunities, due to the COVID virus.  Your counsel notes, as I have already indicated above, that despite those challenges, you have completed an indigenous program, Mungadal, tailored to exploring your culture.  You have also completed the Atlas Program, a five-week course focused on wellbeing, social skills and life strategies and this is to your credit.

Bugmy disadvantage

30Your counsel has submitted that you have endured an extraordinarily difficult upbringing, painted with exposure to chronic violence, drug use and traumatic experiences.  It is submitted by your counsel that your upbringing has direct connections with your own substance abuse issues, which have been the direct cause of much of your criminal history.

31The High Court, in Bugmy v R (2013) 249 CLR 571, at paragraph 41, noted that – deterring that private or traumatic childhoods of the kind experienced by you, may constitute a mitigating factor in sentencing, although each case must depend upon its own facts in order to ensure individualistic justice. However, in any case, in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.

32The weight to be given to that material, in moderating the weight which would otherwise be given to specific and general deterrence and other sentencing considerations, depends on the circumstances of each case.  It is appropriate for the sentencing court to take into account your disadvantaged childhood; however, it is difficult to make the connection on the extent to which this ought to be done in the absence of materials supporting your subjective history of disadvantage.  Nonetheless, I am prepared to accept the history, as related to the medical practitioners, and I am prepared to make an appropriate allowance, according to the principles of Bugmy outlined above.

33I also accept that the COVID pandemic has affected your time on remand as is common to all prisoners who are undergoing incarceration at present. 

Applicability of Verdins’ principles

34Your counsel has submitted that having regard to your mental impairment, as outlined above, it is submitted that the following Verdins’ principles apply:

(a)Reduction in moral culpability.  It is submitted your conduct ought to be viewed against the background of executive dysfunction and impulsive behaviour, due to your acquired brain injury;

(b)The consideration of mental impairment on the sentence.  It is noted that Dr Borg opines that your brain injury case management would be useful and acknowledges that drug abstinence is imperative to avoid further deterioration.  Dr Cunningham opines that you would benefit from a disposition that facilitated rehabilitation, including engagement in drug and alcohol and mental health intervention in the community.

(c)Moderation of general deterrence.  It is submitted by your counsel that general deterrence should be moderated, although not eliminated in light of your mental impairment. 

(d)Moderation of specific deterrence.  It is submitted that general deterrence should be moderated, although not eliminated, in light of your mental impairment.  In essence, this leads your counsel to submit that a combination sentence would be an appropriate disposition. 

35As to this submission, the prosecution accepted that your background and mental health should be taken into account, only in a general sense.  It was conceded that you suffer from persistent depressive disorder, dyslexia and mild neurocognitive disorder or acquired brain injury.

36However, the prosecution disputes your submission that any limbs of Verdins are applicable.  It is submitted that for the Verdins’ limbs to apply, there must be a “relevant nexus” between the impairment and the offending, or the impairment must have caused or contributed to the offending behaviour.  The key question, when assessing culpability, is not whether a person suffers from a disability or mental health condition, but what the evidence shows about the nature, extent and the effect of the mental impairment experienced by the offender at the relevant time.

37It was noted by the prosecutor:

(a)Your dyslexia “is not considered to have … contributed to [your] current offending behaviour”.  See report of Dr Borg dated 30 September 2020 at paragraph 41;

(b)Your condition of PDD “is not directly linked to [your] offence behaviour”.  See report of Dr Cunningham dated 19 August 2020 at page 3;

(c)Your acquired brain injury is “considered to have potentially contributed to [your] offending behaviour”.  See report of Dr Borg dated 30 September 2020 at paragraph 41(ii).

38Furthermore, the prosecutor submits that it is acknowledged in the reports of Dr Cunningham and Dr Borg that you were under the influence of methylamphetamine at the time of your offending.  It is reported that you were so affected by drugs that you cannot recall the incident at all.  Dr Cunningham opines that your drug abuse is the main contributor to your offensive behaviour and were it not for your drug use, it is unlikely your offending would have occurred.  To the extent that your conduct was a result of your drug use, any mitigatory effect must, in the circumstances of this case, it is submitted, be slight.

39As to the direct applicability of Verdins, the learned prosecutor submits:

“18.For limb 1 to apply (to reduce moral culpability) there must be a causal connection between the offending and the offender’s mental impairment.  Whilst his ABI may have affected the offender’s reasoning skills/executive functioning and ‘potentially contributed to his offending behaviour,’ Dr Borg further notes that these underlaying cortical vulnerabilities [are] further exacerbated when he is under the influences of drugs or alcohol.  There is insufficient evidence to establish a causal nexus [it is submitted] between the mental impairment and the offending.  In the alternative, given the difficulty in ascertaining the extent to which the offending was as a result of his drug use, any weight to be given to limb 1 should be slight.”

40With respect to limb two, the prosecutor submitted:

“19.In respect of limb 2, it is accepted that to reduce and address the risk of reoffending on release from prison, the offender would benefit from supports in the community.  However, there is no evidence that the offender’s mental health impacts on his ability to serve a prison sentence.” 

In particular:

“a.     [You] ‘denied being assaulted, bullied or intimidated whilst incarcerated.’  [See the report of Dr Borg dated 30 September 2020 at paragraph 21];

b.     Dr Borg reported was ‘unlikely that these conditions would make imprisonment more difficult or onerous for Mr Lovett’.  [See the report Dr Borg dated 30 September 2020 at paragraph 41(iii)];

c.     [Your] PDD ‘is not resulting in a more onerous experience of imprisonment.  This is likely due to the absence of drug abuse and [your] adherence to routine and structure’.  [See the report of Dr Cunningham dated 19 August 2020, at page 4].”

41It was conceded, however, that a court may determine that limbs three and four apply to moderate general and specific deterrence, depending on the nature and severity of the mental impairment and how this impairment affected the mental capacity of you at the time of your offending and/or at the time of sentencing.  The prosecution refers to, and repeats submissions, that there is insufficient evidence to establish the impairment affected the mental capacity of you, at the time of the offending, as compared to the influence you were under from drug use and/or at the time of sentence and that limbs three and four nonetheless ought to apply.

42In my instinctive synthesis in applying Verdins, I am prepared to apply limbs three and four, although not being totally satisfied that limbs one or two directly apply, I will take into account the potential for your acquired brain injury to have affected your behaviour and your preparedness to act impulsively and I will make an appropriate allowance, in a general sense, as sought.

Sentencing principles

43In sentencing you, I must have regard to a range of different factors.  I must give effect to the principles of deterrence, both general and specific.  I must deter other people from behaving like you.  I must deter you from repeating such behaviour and impose a just punishment in all the circumstances.  I must express the community’s denunciation of your conduct and promote your rehabilitation.  I must also have regard to current sentencing practice for offences of this kind that you have committed and I must balance your personal circumstances.

44I have consulted the case summaries of both the County Court and the Court of Appeal in respect of the offences of intentionally causing injury and theft.  The cases do service some reference to the objective gravity and seriousness of your offending and whilst the Court has taken the cases provided into account in determining the appropriate sentence, as being informed by them, I am not bound by them in exercising my sentence discretion and view current sentencing practice as only one of the factors I must consider along the lines of the principles of the High Court decision in DPP v Dalgliesh (2017) 262 CLR 428 at paragraph 41.

45It is submitted by the prosecution that general deterrence and denunciation are of importance, due to the seriousness of your offending.   It is also submitted that given your criminal history and whilst your offending was committed while subject to an undertaking of bail, specific deterrence also looms large in the sentencing exercise.

46Nonetheless, I am prepared to take into account that you have apparently adhered to a number of programs whilst in prison and that you still wish to continue and provide example for your children in the future and I do not regard your prospects of rehabilitation as being bleak.  Nonetheless, protection of the community assumes a significant relevance, given the nature and the seriousness of your offending and your criminal record.  Offending of this nature, it is submitted by the prosecution, in circumstances where your motive is unknown, and where the submission is that your offending was impulsive and unplanned, this in itself is highly concerning and protection of the community looms large and I accept this submission.

47I also must take into account what is considered to be just punishment in the circumstances.  Subject to what I have stated above, I do note that the median term of imprisonment in recent years, for Charge 1, is one year and nine months or 21 months’ imprisonment.  As is noted by Dr Cunningham and
Dr Borg, your rehabilitation is highly dependent on you ceasing drugs.  See
Dr Borg at paragraph 41 (iv) and (vi) and Dr Cunningham at page 4.  I note in this regard, that you have provided a drug screen which showed a zero return for any offensive drugs and the only drug showing in your screen is one of methadone, which is, of course, appropriate in all the circumstances. 

48The prosecution, in their final summary, submits that taking into account all the circumstances of the case and sentencing purposes, that the only sentence within range is a term of imprisonment, with a non-parole period.  I have carefully considered your counsel’s submissions as to whether a combination sentence would be appropriate, but for the matters that I have referred to above, I consider that I prefer the prosecutor’s submission that there should be a head sentence with a non-parole period, but I will take into account the mitigation matters referred to above in the final sentence.

49Mr Lovett, would you please stand. 

50On Charge 1 of intentionally causing injury, you are convicted and sentenced to 23 months’ imprisonment.  This is the base sentence. 

51On Charge 2 of theft, you are convicted and sentenced to two months’ imprisonment, with one month to be served cumulatively on Charge 1. 

52On the two uplifted summary charges, being Summary Charge 4 and Summary Charge 6 of committing an indictable offence whilst on bail, you are convicted and sentenced to an aggregate term of imprisonment of two months, which is to be served concurrently on Charge 1.  This means that there is a total effective sentence of 24 months’ imprisonment and I direct that you serve 18 months before being eligible for parole.  You can now have a seat.  Thank you.

53Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a total effective sentence of four years’ imprisonment, with three years non-parole.

54Has the prosecution made a forfeiture order application?  I understand that that is by consent, Ms Drago?

55MS DRAGO:  Yes, Your Honour, that’s the case.

56HIS HONOUR:  Yes, yes and that order will be made.  And on that basis, the orders will be made as per the schedules.  Is there anything further counsel?

57MS DRAGO:  Your Honour just one matter, can I confirm that the submissions were received - sent through to the Court yesterday?

58HIS HONOUR:  Yes, thank you, they were.

59MS DRAGO:  Thank you, Your Honour.

60HIS HONOUR:  Yes.  Anything further?

61MS SARGENT:  Your Honour, a formal declaration of pre-sentence detention to be taken ‑ ‑ ‑

62HIS HONOUR:  Yes, thank you.  Yes, and I – it is 337 days, is that agreed?

63MS DRAGO:  Yes, Your Honour.

64MS SARGENT:  Yes.

65HIS HONOUR:  And I note that the pre-sentence detention is 337 days.  Anything further counsel?

66MS DRAGO:  No, Your Honour.

67MS SARGENT:  No.

68HIS HONOUR:  All right, could you please adjourn the Court.

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