Director of Public Prosecutions v Malic

[2019] VCC 1346

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02520

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDWARD MALIC

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2019
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	DPP v Malic
MEDIUM NEUTRAL CITATION:	[2019] VCC 1346

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Intentionally cause injury; Extensive criminal history; Mild to moderate intellectual impairment; Acquired brain injury; Early plea of guilty; Serious example of offence; Verdins principles not engaged; Imprisonment more burdensome; General deterrence moderated; Specific deterrence; Protection of the community.

Legislation Cited:                  Sentencing Act 1991 (Vic).
Cases Cited:  R v Verdins & Ors (2007) 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Gillis	Office of Public Prosecutions
For the Accused	Mr J. Portelli	James Dowsley & Associates

1Edward Andrew Malic, you have pleaded guilty to one charge that on 26 February 2017 you caused injury intentionally to Shaun Johnson.  You have also pleaded guilty to a related summary offence of wilful trespass. 

2The circumstances surrounding your offending were set out in a summary of prosecution opening tendered as Exhibit A on the plea.  Briefly put, you attended at unit 4/132 David Street, Dandenong, at about 5 pm on Sunday 26 February 2017.  At that time, Shaun Johnson lived at that address but you were looking for a different person by the name of Richard Bloom. 

3Mr Johnson was in his room when he heard someone yell his name at the front door.  He was expecting a friend so he went to check who was at the door.  Mr Johnson did not recognise you but assumed that you were someone he had met before.  He asked you who you were and you responded by saying you needed to talk to him, he tried to lock the door but you then barged into the house. 

4Once you were inside, Mr Johnson sat down on the couch but then saw that you had a knife in your hand and said, 'what have I done, are you going to stab me?'  He tried to get up from the couch but you grabbed him in a headlock with your left arm and started stabbing him in the legs with the knife.  You said to him that he had to cooperate or you would kill his family, you said you had stabbed and killed people before and that you did not care if he told the police because if you got locked up you would find Mr Johnson and his family and kill him when you got out. 

5You said to Mr Johnson, 'I'll even tell you my name.  My name is Eddie Malic.'  He asked you if you wanted to speak with Richard Bloom who had lived in the house a few months before.  You told him that Mr Bloom owed you money and you were going to give him a message.  Mr Johnson asked you what message, and in response you stabbed him in the leg again.  He feared that you would kill him. 

6You had a further conversation in which you asked whether Mr Johnson had any drugs and he replied that he did not.  However, in a bowl on a table in the lounge room there was tobacco and cannabis.  You suggested that you should both smoke the cannabis and that you would then take Mr Johnson to hospital. 

7You instructed him to tell police that he had been brought to the hospital by yourself after Africans had stabbed him at the Dandenong train station. 

8Once you smoked the cannabis you took Mr Johnson to hospital where he was taken to emergency straight away and police were called.  It seems that Mr Johnson was too scared to make a statement initially and told police that he did not want the matter investigated.  He later changed his mind and made a statement to police when he became fearful that you would return. 

Injury

9Mr Johnson sustained multiple stab wounds to both bilateral lower limbs and one stab wound to his left hand.  He underwent surgery to repair these wounds.  One week after the operation it was noted that Mr Johnson's left leg had suffered 70 per cent common perineal nerve damage. 

10He also received physiotherapy as part of his rehabilitation for this injury.  On initial assessment for that treatment he had decreased strength in his left ankle, reduced quality of gait pattern and intermittent pain at the lower left limb when walking.  These problems improved during the course of the physiotherapy treatment. 

11In a statement provided to police on 3 July 2017, before he had undertaken physiotherapy, Mr Johnson detailed the impact this assault had had on him.  He described himself as feeling vulnerable and scared when alone in his home.  His sleep had been disturbed and he was suffering from anxiety attacks and experiencing flashbacks of the stabbing.  He could not understand why you had injured him in this way and he now finds it difficult to trust others. 

12You should understand that your assault on Mr Johnson has had a marked impact on his quality of life and that is an important consideration that must be taken into account in formulating the sentence to be imposed on you. 

Arrest and Interview

13You were not arrested in relation to this matter until 6 October 2017.  In the version of events that you gave police on that occasion, you said that you had gone to Dandenong Hospital with a broken toe but because there were so many people there you decided to go to Richard Bloom's house.  You claim that when you got to that house the front door was open and Mr Johnson was inside in hysterics with blood running down his legs and holding a knife in his hand.  You denied that you were responsible for inflicting Mr Johnson's injury.  You said that Richard Bloom owed you $300 and that you had never met Mr Johnson before. 

Procedural history

14As I have mentioned, although this offence occurred on 26 February 2017, you were not arrested and interviewed in respect of it until 6 October 2017.  I am told that you were arrested in respect of another matter on 23 February 2018 and remanded in custody.  On the application of the prosecution, this matter was sent to committal which took place on 10 December 2018.  Mr Johnson gave evidence at that committal.  It is important to note that a plea of guilty was entered on that day and accordingly, whilst the plea could not be regarded as being entered at the earliest opportunity, it was conceded to be an 'early plea'.  I was told there was to be a contested plea before this Court but eventually the matter resolved on the agreed factual basis I have outlined. 

15I will treat the plea of guilty as having been entered at an early stage and I will accordingly reduce your sentence significantly. 

16Earlier this year you faced trial in relation to separate matters of which you were acquitted.  The parties agree that you have spent 380 days in custody directly referable to the offences for which you will now be sentenced.  You have spent a further 161 days in custody which is referable to the matters of which you were acquitted.  In total you have already spent 541 days in custody. 

17I need to make clear that I will declare the presentence detention of 380 days which is referable to this matter as time served pursuant to section 18 of the Sentencing Act.  I will also take the 161 days into account as I am required to do at common law in formulating the sentence that must now be imposed. 

Personal history

18Turning to your personal history, your parents migrated to this country from Croatia.  They separated when you were seven years of age.  Your father who was employed as a diesel mechanic was a violent man who drank heavily and frequently assaulted your mother and you.  You say that on one occasion you were beaten so severely that you were hospitalised.  Your mother worked as a factory hand in an electrical appliance factory for many years. 

19Following the separation of your parents, your mother purchased a large property in Emerald where she still lives.  She is 76 years of age now and her health has progressively deteriorated.  When not in custody, you have resided on her property in a bungalow and when released you intend to return there and assist with your mother's care.  I note that your mother was present in court to support you. 

20You went to St Thomas More Catholic Primary School and despite obvious learning problems you did not receive any remedial assistance and never learnt to read or write.  You managed only about three weeks or so in secondary school.  After leaving school you received Social Security payments and you say were not able to find work because you were illiterate and essentially had no stable employment until about five years ago when you worked as a concreter with a cousin for a period of two years or so. 

21Complicating your background is the fact that you commenced using illegal drugs when you were very young.  You started smoking cannabis and injecting amphetamines at around the age of 14.  When you have been at liberty you have generally resumed using cannabis and methamphetamines, and in more recent times you have abused heroin and in the six months or so leading up to this offence you were using heroin regularly.  Since you have been in custody you have been maintained on methadone. 

22You have an extensive criminal history dating back to 1991 when you were 17 years of age.  Your counsel estimated you have spent some 15 years or so in custody and are in danger of becoming institutionalised.  A significant proportion of your prior convictions consist of drug and dishonesty offences reflecting your ongoing struggle with substance abuse.  Unfortunately, you have also committed quite a number of offences of violence.  You have previously been dealt with for a number of summary assault and weapons charges, and more relevantly you have been before the courts on a number of occasions in respect of serious assault charges. 

23You were dealt with for intentionally or recklessly causing injury on 4 October 1994 and sentenced to one months' imprisonment. 

24On 15 December 1994, you were dealt with for two charges of intentionally or recklessly causing injury and sentenced to a 12 month community based order. 

25On 27 April 1995, you were dealt with for two further charges of intentionally causing injury or recklessly causing injury and sentenced to three months' imprisonment on each of those charges to be served concurrently. 

26On 5 February 1998, you were dealt with for a charge of intentionally causing serious injury and sentenced to six months' imprisonment. 

27On 20 September 2002, you were dealt with in this court for an offence of armed robbery, two charges of common assault and one charge of being a prohibited person in possession of a firearm and sentenced to a total effective sentence of 44 months’ imprisonment with a non-parole period of 32 months’ imprisonment. 

28On 31 August 2007, you were dealt with in this Court for the offence of intentionally causing serious injury, common assault and attempting to pervert the course of justice and received a total effective sentence of two and a half years’ imprisonment with a non-parole period of 18 months’ imprisonment. 

29In 2012, you received a sentence of 45 days' imprisonment in combination with an 18 month Community Correction Order for, amongst other matters, a charge of intentionally causing injury.  That Order was subsequently breached. 

30I should stress that you have already been punished for those matters and you will not again be punished for that offending.  Nonetheless, that history suggests a propensity for violence that may give rise to greater emphasis on sentencing purposes such as specific deterrence and protection of the community, and I will turn to that issue shortly. 

31Mr Portelli, who appeared on your behalf, relied on two personal references.  One confirming that you have work available to you as a concreter when released and one from your mother.  I have taken those references into account. 

32Two psychological reports were also relied upon, the first from Mr Jeffrey Cummins, psychologist, of 28 March 2019.  At paragraph 34 of that report, Mr Cummins says as follows: 

In my opinion his criminal record indicates it is very probable he does have an Antisocial Personality Disorder (DSM-5 Code 301.7), characterised by a pervasive pattern of disregard for and violation of the rights of others occurring since age 15.  In this regard he acknowledged he often behaved impulsively and often found himself in conflict situations.

33At paragraph 35, Mr Cummins states: 

He spoke in a manner indicating he was relatively street-wise.  He did not immediately present as having an Acquired Brain Injury, although I estimated his current level of intellectual functioning was most probably at the lower end of the below average range, although his adaptive skills appear to be disproportionately high relative to his level of intellectual functioning. He did not present as functioning in the borderline range or lower. In my opinion it is appropriate to have Mr Malic neuropsychologically assessed and I would appreciate the opportunity of then being requested to provide a supplementary report concerning him.

34Mr Cummins goes on to state, at paragraph 37: 

Because of his personality problems and his low self-esteem, in my opinion his ability to form comprehensive remorse is significantly impaired.  In my opinion his level of insight into his psychological history and his current psychological functioning was very limited.  He spoke in a concrete manner as opposed to an abstract manner, and in my opinion he processes information in a concrete manner as opposed to an abstract manner.

35At paragraph 47, Mr Cummins concludes: 

On the basis of my current assessment of Mr Malic his prognosis with respect to further offending is guarded to say the least.

36Further to that assessment you were also assessed by Ms Jane Lofthouse, neuropsychologist, who provided a report of 31 July 2019. 

37Ms Lofthouse conducted some detailed testing to determine your level of functioning.  You were assessed with a full scale IQ of 75, that is, within the borderline range where you are better than or equal to only 5 per cent of the population.  Ms Lofthouse identified some particular deficits, for example at page 13 of her report she says: 

Mr Malic also demonstrated marked impairment in his verbal memory and was slow to learn new verbal material even under conditions of repetition.  The deficits as described above will place Mr Malic at risk of not processing conversations appropriately having slowed learning plus missing and forgetting verbal material.

38In summary, Ms Lofthouse found at page 14 of her report: 

Mr Malic demonstrates mild to moderate intellectual impairment and in considering the aetiology of Mr Malic's deficits several factors were considered.  Mr Malic's test scores are not consistent with him having a developmental disorder such as seen in an intellectual disability.  In addition to his drug and alcohol use Mr Malic reported several traumatic incidents that may have resulted him sustaining brain injury including his report of the sequelae to a high speed motor vehicle accident when he was  sixteen.  Mr Malic also stated that he experienced learning problems at school and only completed Grade 6.  Mr Malic's poor literacy skills are likely related to his poor progress at school as the result of a chaotic adolescence marked by early drug and alcohol use, contact with the forensic system, a verbal processing disorder and the emergence of unstable behaviour rather than that related to an acquired brain injury. 

However, Mr Malic demonstrated some mild impairment in his reasoning skills and attention with more marked deficits in his memory and speed of mentation and it is more than likely that these deficits are the result of acquired brain injury related to his chronic and long term pattern of drug and alcohol use and possible brain injury related to traumatic events.  It is likely that Mr Malic's intellectual deficits were present at the time of his criminal offending and although tuition may assist his literacy skills it is likely that his deficits will be present during his current period of incarceration and at the time of sentencing.

Submissions

39Turning to the submissions made by counsel, Mr Portelli argued that you had a mild to moderate intellectual impairment with deficits in language, memory, learning and attention as identified by Ms Lofthouse.  He further argued that there is also likely to be an antisocial personality disorder which would further degrade your functioning.  He submitted that this amounted to a profound impairment and that the principles in R v Verdins & Ors[1] should operate to mitigate the sentence imposed such that the time you have already served in custody should be sufficient punishment for this offending. 

[1]R v Verdins & Ors (2007) 16 VR 269, (‘Verdins’).

40Ms Upton, on behalf of the prosecution, submitted that this was serious offending involving the stabbing of a man in his own home.  The injury was significant and inflicted by someone he did not know.  It was submitted that this was a serious example of the offence which required the imposition of an immediate term of imprisonment. 

Consideration

41Turning to my analysis of these submissions and all of the material, in my view Ms Upton's submissions should be accepted.  This is indeed a serious example of this offence and it has had a significant impact on the victim.  I am not persuaded that the deficits identified by Ms Lofthouse are sufficient to establish that your mental functioning was sufficiently impaired at the relevant time or that your intellectual impairments were causally or realistically connected to this offence.  It follows that I do not accept that the principles in Verdins are engaged. 

42I do accept, however, that you are person who has deficits which are likely to make you more vulnerable in custody and likely to find the experience of custody more burdensome than might be so for the average prisoner.  You have already spent 161 days in custody not related to this offence and I will reduce the sentence that I would otherwise impose to ensure that you receive appropriate credit for what would otherwise be, as your counsel described it, ‘dead time’.  Moreover, your early plea and the delay in finalising this matter are important matters that weigh in your favour. 

43Similarly, given your lower functioning and illiteracy you do not present as what might be described as an ideal vehicle for general deterrence, and some lesser emphasis to that sentencing purpose in my view is justified.  The same cannot be said, however, for specific deterrence or protection of the community. As I mentioned earlier, your criminal history discloses a propensity for violence that does give rise to a greater need to deter you from engaging in violent behaviour and to protect the community.  Whilst I must attempt to balance those considerations with your prospects for rehabilitation, in my view those prospects remain guarded. 

44It follows that I am not satisfied that the time that you have already served in custody sufficiently reflects the seriousness of these charges, nor would it adequately achieve the purposes for which your sentence must be imposed. 

Sentence

45Would you please stand, Mr Malic. 

46On the first charge of intentionally causing injury you will be convicted and sentenced to a term of imprisonment of four years. 

47In respect of the second charge, being the related summary offence of wilful trespass, you will be convicted and sentenced to a term of imprisonment of two months. 

48The sentence on the related summary offence of wilful trespass I will order be served concurrently with the sentence imposed on charge one of the Indictment.  That makes a total effective sentence of four years’ imprisonment, and I will fix a non-parole period of two years and nine months’ imprisonment. 

49I will make a declaration pursuant to s 18 of the Sentencing Act 1991 (‘the Act’) that you have already served 380 days in custody and I will cause that declaration to be noted in the records of the court. I will further declare pursuant to s 6AAA of the Act that but for your plea of guilty you would have been sentenced to a term of imprisonment of five years with a non-parole period of three years and nine months.

50Just take a seat for a moment if you would please, Mr Malic.  Counsel, if I could check with you, is there any other matter arising out those sentencing remarks or any ancillary orders that I have not attended to? 

51MS GILLIS:  No, Your Honour. 

52MR PORTELLI:  No, Your Honour. 

53HIS HONOUR:  If it is all right with the custodial officers if Mr Malic would remain there when I leave the Bench for a short time to confer with counsel, if that is able to be allowed? 

54MR PORTELLI:  Yes, thank you, Your Honour. 

55HIS HONOUR:  9.30 tomorrow.  Thank you. 

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