Director of Public Prosecutions v Martin

[2015] VCC 963

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIAN THEORDORE JAMES MARTIN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	5 June 2015
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2015] VCC 963

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	Office of Public Prosecutions
For the Offender	Mr S. Ginsbourg	Stary Norton Halphen

HIS HONOUR: 

1Damian Martin, it seems in your 20s you became involved with the Mormon Church.  In 2013 you moved from South Australia to Geelong and met the local Mormon Church Bishop, Mr Sandford.  You commenced a relationship with his daughter, Bethany.  You and she became engaged.

2In late November 2013, you called the engagement off and ended the relationship.  You were unsettled as to where your life was heading.

3On 14 December 2013 you rode your motorcycle from Geelong to the Aire River Camping Ground to camp, fish and think about things.  You had two large bottles of Jim Beam with you at the camp site.  You drank both of them, the last portion through the evening of 14 December.  It seems that as
14 December moved into the early hours of 15 December, you were comprehensively intoxicated.

4You were not a man who drank much or often.  This binge drinking episode was out of character for you.  As things transpired, it had a disastrous impact on you.

5On the evening of 14 December, Angelo Tzeremes, his wife, Nicola and son, and his sister who had come to visit from Canada, travelled from Melbourne to their remote holiday farm in Hordern Vale, about 25 kilometres from Apollo Bay.

6They arrived in the early hours of 15 December.  As they relaxed, Mrs Tzeremes was outside having a cigarette.  You, Damian Martin, appeared from out of the bush and came towards her.  She screamed at you to go away and screamed for help from her husband.  You moved towards her holding a knife in a threatening manner.

7Mr Tzeremes came rushing out to his wife's aid and got between her and you.  You started swinging the knife at him and he became pinned against his car.  You lunged at him, stabbing him once in the chest, and once around his armpit.  The two women there pulled at you and ultimately you were pulled off and walked away. 

8Amongst all the bizarre aspects of your behaviour was the fact that throughout this violent outburst, you said absolutely nothing.

9You made your way back to your tent some 500 metres or a kilometre away.  You were arrested in the mid-morning on 15 December 2013, and from that moment to this, you have maintained you have no memory of the stabbing incident.

10After you left the Tzeremes' holiday house, Mr Tzeremes was left bleeding.  Neighbours were called and, ultimately, police and ambulance.  He was flown to the Alfred Hospital.  Fortunately for him and for you, the injuries from the stabbing required stitching and no more. 

11Of greater significance is the long-lasting psychological trauma caused to him.  He has been under the care of a treating psychologist who reports that he has struggled to cope.  He has been diagnosed with post-traumatic stress disorder.  He is hyper vigilant, self-critical, unnecessarily so, as to his role in protecting his family, and his sleep is disturbed.

12He wrote in a compelling Victim Impact Statement which was read out, about his property being tranquil, peaceful, and he loved it for that, but what happened changed all that.  He said as he was being stabbed, he could not stop thinking that he was going to be killed.  Once he was bleeding on the floor of his kitchen, he could not stop thinking that he was going to die. 

13To this day he says, "I find it difficult in understanding why this person did what they did.  Why was he at my home at 1.30 in the morning?  Why, when
I asked him to leave, did he decide to attack me and my family?"

14He says, it is hard to sleep at night.  His relationship with his wife is difficult and the smallest things angered him and he constantly asks, "Why did this happen?"  The isolation and the beauty and peacefulness of his property has gone. 

15He says this, "There is one person that caused all this to happen.  The person had a choice and decided to act violently."  It is difficult to put into words what happened to him and his family in those early hours, but its effect on his life and the feeling of self-helplessness, the fear of almost dying, the loss of peace, the loss of love and joy for the property that he loved so much.  "What has occurred has taken away from me and robbed my family of joy, more than words can ever explain."

16His wife says this, that she is really scared now and cannot function alone.  If her husband is not home with her, she is significantly apprehensive and unable to go out.  She is hyper vigilant and does not sleep well at night.

17She is worried that she has made her own son, 12 years old at the time, and present, worried that she has made the child hyper vigilant.

18She thinks about selling the farm as she no longer feels safe and she imagines the worst there and she says, "The world feels so much more unjust and unsafe.  I am so angry he has affected our lives like this.  It is so difficult to face.  How dare you take up this place in our lives."

19This attack in the dead of night when you were a trespasser on the property is serious offending.  Using a knife adds to the gravity.  Because you were a stranger to the victims and there is no discernible reason for your attack, they are left bewildered, asking, as Mr Tzeremes did in his Victim Impact Statement, asking, "Why me?"  A question without answer.  As I have said, that is because you have no memory of this dramatic event.

20You were remanded for the best part of eight months until a committal could be organised.  I was told that you are willing to plead guilty to recklessly causing serious injury from the outset, but, oddly, in my view, you faced a charge of attempted murder.

21After the committal you were granted bail.  Further negotiations have resulted in your original offer being acceptable to the prosecution, albeit only in recent times.

22In all the circumstances, I take your plea to be an early one, and an important one, in relieving the victims of the added trauma of a trial.  Your plea of guilty is an expression of your remorse.  It is far from the only expression of remorse.   I need to detail that because it is important in mitigation. 

23While in custody you were visited by Mr Sandford, who I mentioned before.  He and his daughter have stood by you and you were offered a place in their house and have been living with them on bail ever since late September 2014.

24Mr Sandford gave impressive evidence before me and told me how you had expressed genuine contrition for what you had done to the victims. 

25Unusually for pleas in this State, you gave evidence.  I heard and saw you express your sorrow and remorse for what you did.  You spoke of the effect, on you, of hearing the Victim Impact Statements and how you realised the wide-ranging effect on Mr Tzeremes and his wife, of your crimes.

26You were appropriately emotional when you gave evidence.  Your expressions of remorse meant something to you.  I am more than confident that your remorse is genuine, indeed, heartfelt, and it provides a very solid foundation for your reform.

27As I have said before, I do not understand why judges are required to accept the all important aspect of an expression of remorse by an accused, from other sources, when the accused is there in court and can, if able, simply express their remorse in evidence on oath.

28It is the routine in other States, indeed, the expectation if a judge is to be persuaded, that remorse is evident, is genuine, and is a foundation for reform.  I give emphasis to this because, in my view, the community is far more understanding of a merciful sentence if there is strong evidence of remorse.

29Your attitude, I think, springs from your fundamentally decent prior character.  You have never been in trouble before or since.  You are not troubled by
anti-social attitudes or behaviours such as drug taking; quite the contrary.  This is all the case, notwithstanding significant difficulties in your upbringing.  Your parents split when accusations of sexual assaults were made by your sister against your father.  You stuck by your father for some years through in your adolescence only to discover, or come to the realisation, that he, in truth, was a sex offender.  You struggled a good deal after that.

30However, in all those circumstances, you were able to work in labouring jobs and had a long period working as a trainer with the Hung Jack's organisation.  Your work history is to your credit.

31Since release on bail, you have worked in a cake factory until that became untenable due to the dysfunctional nature of the workplace.  You have a promise of a traineeship as a nurseryman.  You have aspects of psychological fragility.  You have, while in custody, which is unusual, and, subsequently, while on bail, seen a mental health practitioner, the psychologist, Mr Meixner.

32His report was helpful to me.  You are focused on understanding your childhood difficulties and ensuring that you also understand the effect of binge drinking on you.  You have decided to abstain from all use of alcohol and have stuck by that since release. 

33The role of alcohol is different in this case than many others.  You do not have a history of alcohol abuse.  On the few occasions you did drink excessively in your life, you have never displayed violence.  When sober you are not a violent or aggressive man at all.

34Mr Ginsbourg, in his usual comprehensive plea, directed my attention to the Court of Appeal decision in The Queen v Morrison.  The principle from that case is that in rare instances, gross intoxication can be treated as a circumstance reducing moral culpability.

35In your case your intoxication, lack of a reason for the attack, your lack of experience of intoxication, and complete lack of violence, when intoxicated, means I can see your intoxication on this occasion as significantly impairing your judgment and your capacity to reason.

36In my view, there can be sensible moderation of your moral culpability, meaning the weight to be given to denunciation can, likewise, be moderated.

37Your intoxication is not a complete excuse.  It goes far to explain this bewildering event and provides a level of legitimate excuse.

38Ordinarily, another important sentencing consideration is deterrence to others.  In this case, it is hard to measure what weight ought be given to this important sentencing purpose.

39Deterrence to those who may be minded to stab others, remains important, but the circumstances of gross intoxication, random wandering, inexplicable violence with a knife, is not a common scenario, except in circumstances of significant impairment to an offender's mental faculties.

40Thus, you are not the best vehicle for deterrence to violent offenders, who are usually purposeful, determined and with a particular motivation. 

41Your rehabilitation is also important.  You can be reclaimed and, as such, return to your previous lawful ways.  You have good prospects and, as such,
I am confident that if I establish conditions to facilitate your rehabilitation, as
I am required by statute to do, then your rehabilitation is likely to be successful.

42As it turns out, all this fits with the new sentencing landscape that was identified by the Court of Appeal in the guideline judgment of Boulton v The Queen.  The point is that amendments to the Sentencing Act they were require me to be satisfied that all sentencing purposes cannot be met by a community-corrections order before I could consider imprisonment.

43Secondly, the Court of Appeal in Bolton made clear the traditional thinking about imprisonment being the sentencing option, or the only sentencing option, had to be re-thought.

44Given the length of time now available for a community-corrections order, the program conditions available and the work or punishment aspects of a community-corrections order, it must be appreciated that a community-corrections order can simultaneously punish and rehabilitate in ways prison cannot.

45That said, you have spent 283 days in prison.  As a first offender, the fact of imprisonment is all important.  The clanging of the gaol door behind a person like you is deterrent enough.  I am confident that you do not want to return to prison and will do all you can to behave and avoid gaol in the future.

46You will need assistance in this regard, thus programs for recognising alcohol abuse and treatment for mental health are important for you.  Let us hope that you are able to take up with your treating psychologist through the Office of Corrections.

47In any event, your counsel urged that I impose a community-corrections order in addition to imprisonment no more than you have already done.  The prosecution contended that a community-corrections order was not out of the range, but it was for my discretion as to whether more gaol was required.

48The effect on your victims is a very important matter in this case.  They have lost a lot.  They have lost a lot of enjoyment that they previously had.  That matter and the overall gravity compels some imprisonment, but the eight months on remand is sufficient once a stern community-corrections order is added.

49Can you please stand, Mr Martin.  For committing the crime of recklessly causing serious injury, you are sentenced to 283 days' imprisonment, together with a community-corrections order for three years.  There will be various program conditions attached to that.  Importantly, there will be 300 hours of unpaid community work.  The precise details will be made clear to you shortly.

50In respect of the summary offence of unlawful assault, you are sentenced to a one month community-corrections order that will run concurrent and have as a program condition solely supervision.

51You have served 283 days in custody and I will ensure that this figure that has been reckoned.  I declare that that is part of the sentence that I have just imposed.

52I will ensure that this declaration is entered into the records of the court so the prison authorities can be left in no doubt that you have already served the entirety of your sentence and are now free to commence the community-corrections order.

53Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a term of imprisonment of two years' and six months' with a minimum term of 18 months. 

54The documents will set out all the precise details shortly had, in the meantime, you can be seated. 

55Just remind me, Mr Lewis, were there other applications?

56MR LEWIS:  There were, Your Honour.  There was a forensic sample and disposal and forfeiture orders.

57HIS HONOUR:  Thank you.  I propose, Mr Martin, the Crown have applied that you provide a forensic sample, that is, a scraping from your mouth. 
I intend to grant that application.  The reasons for that is the seriousness of the circumstances warrant the making of an order and the granting of the order is in the public interest.

58What you have to understand is that when the authorities come to take the sample from you by you attending a police station for that purpose; they are authorised to use reasonable force if you do not co-operate with them.  The way through is to co-operate, of course.

59Be seated, thank you.

60MR LEWIS:  Sorry, Your Honour, we're just having a little bit of difficulty with the forfeiture or disposal orders.

61HIS HONOUR:  (Indistinct response.)

62MR LEWIS:  Yes, thank you, Your Honour.

63HIS HONOUR:  I think I am having difficulty with a number of pages connected to this application for 464ZF, I probably have signed things that relate to if he were in custody and so on ‑ ‑ ‑

64MR LEWIS:  I think there were two sets that were provided to Your Honour's Associate, because we did not know what the result was going to be.

65HIS HONOUR:  I have granted the order and whatever document is appropriate will be provided and whatever is unnecessary will be destroyed.

66MR LEWIS:  Yes, Your Honour.

67HIS HONOUR:  The community-corrections order that I placed you on for the recklessly causing serious injury will last for three years to 4 June 2018.

68The conditions that are attached to that, the first group of which apply to all community-corrections orders and apply to you.  You must not commit any offence or any other offence for which you could be imprisoned during the time of the order.  So just do not commit any offences at all during the order or ever.

69You must comply with obligations under the sentencing regulations which I am told will be taking a photograph so you can be identified and so on, you have just got to comply with that.

70You must report to, and receive visits from, the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days of this order starting.  That is at the Geelong Community Correctional Service in the State Government Offices at 30A Lt Malop Street.

71You must not leave Victoria without first getting permission to do so.  You must let the Community Corrections Officer know within two clear working days if you change your address, and you have foreshadowed that, and your change of job, and you foreshadowed that as well. 

72So you have got to keep them apprised with what you are doing and you have got to obey all lawful instructions.

73So that is the mandatory conditions that apply to everyone.  The program conditions that apply to you, you must perform 300 hours of unpaid community work over three years, as directed by the regional manager.  You have to do each and every one of those hours.  You have got to turn up on time and last until it is done. 

74There may be others with less motivation to get things done than you.  You have just got to apply yourself and not be dragged into not doing what you are supposed to do. 

75You will be under the supervision of the Community Corrections Officer for the full three years.  You must undergo assessment and treatment for alcohol abuse and dependency, as directed.

76You must undergo a mental health assessment and treatment which may,
I hope, will be your treating psychologist or someone else who is more local than he, but, in any event, you have got to keep going with that if they tell you to.

77You must participate in programs and courses to address factors relating to your offending, so they may have particular programs for you.

78If you consent to that you sign the piece of paper here and you will be free to leave.

79In addition though there is the one month community-corrections order for the unlawful assault.  The same mandatory conditions apply, I am not going to repeat them, and the program condition, the sole one is that you be under the supervision of a Community Corrections Officer for a period of a month.

80Those two orders will run concurrently, so it starts on 5 June and finishes on
4 July, but you keep going on the other one until 2018.  Do you follow all that?

81OFFENDER:  Yes, sir.

82HIS HONOUR:  Sign those documents if you consent.

83MR GINSBOURG:  Your Honour, I think the prison security will be guided by Your Honour as to whether he can be released from the dock.

84HIS HONOUR:  He can.  Thank you.

85(Offender released.)

86I have signed those.  So have you, Mr Martin, and you will be reminded of your consent to this order if you fail it.  The same merciful sentence just will not be available to you should you breach this order.  They are not easy, 300 hours in three years, but you have to get through it.

87Is there anything further on that matter?

88MR LEWIS:  No, Your Honour.

89MR GINSBOURG:  No, Your Honour.

90HIS HONOUR:  Thank you.   I, again, thank counsel for their assistance.

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