Director of Public Prosecutions v Mathews

[2024] VCC 679

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01610; CR-24-00066.

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH MATHEWS

---

JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2024
DATE OF SENTENCE:	16 May 2024
CASE MAY BE CITED AS:	DPP v Mathews
MEDIUM NEUTRAL CITATION:	[2024] VCC 679

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW – SENTENCING

Catchwords:  Intentionally cause serious injury – assault custodial officer

on duty.

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic).

Cases Cited:  Bugmy v The Queen [2013] HCA 37; R v Verdins [2007]

VSCA 102.

Sentence:  Total effective sentence of 4 years and 3 months 

Imprisonment.  Non-parole period 2 years and 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Mohammed	Office of Public Prosecutions
For the Accused	Ms J. McGarvie	Geelong Lawyers Barristers & Solicitors

HER HONOUR: 

1Mr Mathews, you have pleaded guilty to one charge of intentionally cause serious injury (P10649143.1) and one charge of assaulting a custodial officer on duty (P12355162), on two separate indictments.

Circumstances of the offending

2The full circumstances of your offending are outlined in prosecution openings marked as Exhibit A and C. 

Case number CR-23-01610 (Indictment P10649143.1 – Intentionally Cause Serious Injury)

3In respect of the cause serious injury matter, you and your victim, Ashley Norman, were known to each other.  The offending occurred on 24 March 2023 at Corio Village Shopping Centre.  Prior to going to the shopping centre, police had attended your address to serve you with a summons.  You then went to the centre in company of an associate.

4The offending is caught on CCTV footage which was played in court at the indication hearing. At approximately 2.02 pm you and Mr Norman encounter each other outside the Subway Restaurant in the food court at the shopping centre.  You confront him before producing a knife from your shorts.  You then chase Mr Norman in the food court area while brandishing the knife in a slashing motion. Mr Norman attempted to take steps in a backwards direction in order to avoid being slashed by you.  During the altercation, you stabbed Mr Norman to the upper left-hand side of his back. You also slashed him across the face, you then decamped from the scene.

5Mr Norman could be seen bleeding in the back of the left-hand side.  Witnesses contacted the police and requested an ambulance.  Mr Norman was transferred to the Geelong University Hospital.  On arrival, Mr Norman was tachycardic, heart rate at a rate of 115 beats per minute, where normal heart rate is 100 beats per minute, and extremely tachypneic, very fast breathing rate at 50 breaths per minute, where the normal rate is 20 breaths per minute.

6Initial injuries were identified as:

·a 1-centimetre open wound to the right cheek;

·a 5 centimetre wound inferior to the left scapular, the shoulder blade.

7The CT scan showed that Mr Norman had:

·A penetrating injury to left posterior (back) chest;

·Associated hemopneumothorax.  This is when blood and air enter a person's pleural space and put pressure around their lungs;

·Pulmonary laceration left lower lobe with probable haemorrhage (bleeding in the lung).

8Mr Norman was then sedated and intubated (placed in an induced coma) for treatment.  He was then transferred to the Intensive Care Unit.

9On 25 March 2023, he was moved to operate on by cardiothoracic surgeons for a mini-thoracotomy (surgical opening of the chest).  There were continuing complications with his treatment. He was then extubated (awoken from the coma) the day after.  He was discharged from ICU on 28 March 2023.

10Mr Norman suffered a sustained injury to his lung which caused bleeding and air entering into the chest.  He did not adequately respond to two insertions of a chest drain, and therefore required specialised cardiothoracic surgery to remove a part of the lung.  Without the intervening treatment his condition would have deteriorated such that he would have died.  His condition was life threatening.  He is likely to suffer from a degree of respiratory compromise as a result of the resection of the part of his lung.

Investigation

11Police attended the scene and identified you and shortly after arrested you at your home.  You participated in an interview in which you made admissions to assaulting Mr Norman and said that you struggled to remember all the details as you were heavily drug affected at the time. You stated that despite chasing Mr Norman around with a knife, it was not your intention to cause him injuries.

Case number CR-24-00066 (Indictment P12355162 - Assault custodial officer)

12In respect of the second indictment, the victim in your offending on 5 August 2023 was Mr Daine Gregory, who at the time was employed as a Correctional Officer at Port Philip Prison.

13Mr Gregory and Supervisor Gibson were rostered on Scarborough South Unit.  From the officer station, Officer Gibson observed via CCTV a blue prison-issued property bag had been thrown over the neighbouring exercise yard of Scarborough North, into the exercise yard of the south area.  You and your co-accused, Lachlan Simmons, were in the south exercise yard.  Mr Simmons caught the bag as it entered the yard and placed it near the laundry wall. 

14Both you and Mr Simmons then entered the main common area. Officers Gibson and Gregory attended the exercise yard and retrieved the bag left by Mr Simmons.  Mr Gibson carried the bag back into the common area with Officer Gregory following not far behind.  Mr Simmons stated to Mr Gregory it was just a kettle, to which he replied they would inspect the kettle. Mr Gregory continued to walk towards the officer station with the bag. 

15You began to walk back out to the exercise yard when you called out to him 'You're a fuckin' dog'.  He asked 'What did you say?', and you began walking towards him stating 'It's just a kettle'.  And he repeated that they would inspect it.

16You casually walked towards Mr Gregory and proceeded to strike him in the lip with a closed fist.  He felt a sudden shock, describes being instantly incoherent of where he was or where he was positioned.  He then proceeded to take a defensive stance.  Your co-accused, Mr Simmons, then lunged at him and punched him, connecting with his face, though it is unclear where.  You then struck Mr Gregory to the face at least once more, and it appears that Mr Simmons swings again but missed.

17Mr Gregory was bleeding from the lip and was in pain. 

18He instructed both of you to lay on the ground as he and another officer walked you back towards your cells.  Mr Simmons complied and lay on the ground.  A Code Blue was called, and the Tactical Operations Group arrived and assisted with restraining you.  You were then placed in a lock and handcuffs. 

19Mr Gregory attended the officer station and was initially treated by a nurse.  As the nurse was unable to stop the bleeding, Triple 0 was called, and he was taken by ambulance to Werribee Hospital.  He arrived at 7 pm that evening on 5 August.  His nose continued to bleed, and a CT scan was conducted.

20Mr Gregory suffered the following injuries:

·Comminuted and depressed fractures of the anterior wall of the left maxillary sinus (Cheek bone)

·Deep laceration of 1.5cm to his right upper lip which was treated with two stitches.

·Bleeding nose.

21Mr Gregory was admitted to the hospital overnight.  He was released from hospital at 1 pm the following day and referred to a specialist to confirm if any surgery was required or if any treatment was needed.

22The prosecution accepts that it is not possible to prove to the requisite standard which accused caused the injuries.

Victim Impact

23Mr Gregory has provided a victim impact statement in which he outlines the significant impact of your offending and the way it has affected his confidence in the workplace.  He outlines the physical impact of your offending and also the way in which it has heightened his fear and impacted his family.  He states:

“Since my assault I have considered leaving my job due to the ongoing stress the incident has put on me and my partner.  I do have an ongoing fear that this assault may lead to other assaults, and this has added anxiety to myself and my partner, as she doesn't feel comfortable with me completing my duties at the prison”.

24I take into account, Mr Mathews, the impact of your offending on Mr Gregory.  While there is no victim impact statement from Mr Nelson, I obviously take into account the serious injuries he sustained, and the confronting circumstances of your offending.

Gravity of the offending

25On the charge of intentionally cause serious injury, the maximum penalty indicates it’s seriousness.  Further, it is a category 2 offence under the Sentencing Act 1991. In your case, none of the circumstances set out in paragraphs (a)-(e) of s5(2H) were advanced on your behalf and I accept that they do not have application. Accordingly, I must impose a custodial sentence upon you for the offence, and the custodial sentence cannot be combined with a community corrections order.

26The prosecution submit this is a serious example of this type of offence for a number of reasons, including: a knife was used in the attack; clearly the use of a knife carries with it a high risk of serious injury, as eventuated here. Your possession of a knife suggests a level of premeditation or preplanning; the victim was unarmed and the attack was unprovoked; the offending occurred in a public space in broad daylight and was in the presence of, and seen by, members of the public. The victim also suffered life-threatening injury.

27Your counsel points to the lack of various aggravating features including that you were not acting in company; there is only limited evidence of any preplanning or premeditation; the situation was fast paced and dynamic; and the offending was of reasonably brief duration. I accept that your offending lacks some aggravating features seen in other cases, but it was still serious and brazen conduct on your part.  Your attack was unprovoked and offensive and occurred in the presence of members of the public just going about their day.  As for any planning, you instructed your counsel that you carry a knife for protection and that this was not a planned or targeted attack. In your record of interview, you indicated that you knew your victim, you had issues and then an argument broke out.  While this is not a mitigating factor, nor was it advanced as one, I do accept that although you were armed with a knife this was not a planned or premeditated attack on your victim.

28In terms of your offending against Mr Gregory, the higher courts have referred to the need for significant weight to be given to general deterrence in such matters[1].  You and your co-accused assaulted Mr Gregory in the course of his employment.  It was entirely unprovoked, and you appear to have instigated the physical violence.  I do take into account that it was of reasonably brief duration, no weapons were used, and it cannot be established between you and your co-accused who directly caused the injuries.

[1]Yat v The King [2024] VSCA 93.

Plea of guilty

29In respect to the charge of intentionally cause serious injury, this matter proceeded by way of straight handup brief with the sole disputed issue relating to your intention at the time.  No witnesses have been
cross-examined in the case. In relation to the assault matter, this also proceeded as a straight hand-up brief and no witnesses were cross-examined. In all the circumstances I consider that your pleas of guilty do entitle you to an important sentencing discount.  I accept your plea in respect of the assault matter was also an early one.  Your pleas have significant utilitarian value and indicate an acceptance on your part to facilitate the course of justice and take responsibility for your offending.

30Your case on the intentionally cause serious injury charge resolved after a sentence indication on 27 March 2024.  At the indication hearing submissions were made by both parties that are relied upon for the purpose of the plea hearing, and therefore I have also taken them into account.

Personal circumstances

31Your personal circumstances, Mr Mathews, were outlined by your counsel,
Ms McGarvie, and are canvased in the neuropsychological reports of Dr Linda Borg and Dr Frank Muscara. 

32You were born in Geelong and your parents separated when you were young.  You have siblings both on your father's side and your mother's side.  You mainly lived with your mother post-separation.

33You were exposed to paternal drug use and maternal alcohol abuse.  You describe your childhood as 'pretty rough', stating that your parents were always fighting.  You were both indirectly and directly exposed to domestic violence and suffered significant instability and neglect. Child Protection were involved and you experienced a number of kinship placements, including one with your father in mid-2017.  As a result of ongoing protective concerns you lived in a residential care placement from July 2018.  You have also experienced the grief of your older brother committing suicide when you were only 11, and another brother it seems has been in and out of jail.

34You maintain ongoing contact with your mother and your brother and I note that your mother has previously attended court in support of you. 

35You have had a long-term relationship of some three or four years and you have a two year old daughter from this union.  Your daughter has been diagnosed with autism and you maintain monthly contact with her.

36You attended school until Year 7.  You report experiencing learning difficulties and that you found it hard to concentrate.  While you express a desire to work, you do not have a formal work history or experience.

37On leaving school you began associating with negative peers and using drugs.  You commenced using methamphetamine from the young age of
13-14 and while that started recreationally, it quickly transitioned to a pattern of near daily use. 

38You also have a history of using benzodiazepine, GHB and cannabis.  You have experienced in the past drug related overdoses and blackouts.  Records from previous admissions at Barwon Health and the Geelong Hospital are referred to in the report of Dr Borg.  Records from May 2021 note that you presented with a working diagnosis of 'emotionally unstable personality disorder, borderline type and generalised anxiety disorder'. On 7 October 2022 you attended the emergency department after taking 55 Oxazepane tablets as well as illicit drugs.  On 22 October 2022 you attended for treatment with a self-inflicted stab wound to your forearm.

39You have an extensive and very relevant prior criminal history and considerable involvement with Youth Justice.  I do note that at the time of your offending, you had previously only been sentenced on one occasion as an adult.

40As I have already referred to, you were arrested and remanded on this matter on 24 March 2023.  On 1 June 2023 you received a sentence of four months' imprisonment for a breach of community corrections order.  The sentence lapsed on 30 September 2023.  Therefore, you have a total of 297 days available as pre-sentence detention on this matter.

41In sentencing you I take into account your background of disadvantage, abuse and hardship.  In this regard, Dr Borg offers the following opinions:

·Your background is “...characterized by early trauma in the form of domestic violence, parental substance abuse, criminal behaviour, as well as potential issues of grief.  This has contributed to early exit from school and onset of drug addiction during key periods of adolescent development”. 

·From a mental health perspective, a history of emotional dysregulation and impulsivity combined with your background, has implicated the presence of cluster B personality traits. 

·Your childhood experiences “...are likely to have negatively affected your overall brain maturation, social development and mental health”.

42Relying on the authority of Bugmy your counsel submits, and I accept, that your moral culpability should not be equated with a person who has had the advantage of a stable and regular environment, free of violence and abuse during their childhood and formative years[2].  I consider this to be an important mitigating factor in your case though of course, it also raises concerns of community protection.

[2]Bugmy v The Queen [2013] HCA 37.

Youth

43You were 20 years of age at the time of both offences and now you are 21.  The principles relevant to young and youthful offenders are well established[3].  The rehabilitation of young offenders is one of the great objectives of the criminal law.  Of course, the principles need to be considered against your prior history, the seriousness of the offending, and the importance of deterrence, denunciation and community protection.  In all the circumstances, I do consider that your youth is an important factor and should have a moderating effect on the sentence.

[3]Azzopardi v The Queen [2011] VSCA 372.

Mental health

44While you have been prescribed psychiatric medications in the past such as Olanzapine, it does not appear that you have received any formal mental health diagnosis or treatment.

45In 2019 you were diagnosed by Dr Muscara as having an intellectual disability and your full-scale IQ fell within the “extremely low” range of 62. 

46Recently you were reassessed by Dr Borg.  Dr Borg opines that your global intellectual functioning is no longer at a level that places you within intellectually disabled ranges.  You demonstrated improvement in working memory, visual constructional problem solving and planning, which are potentially a function of imposed drug abstinence.  However, your full-scale IQ of 74 falls within the very low range. Dr Borg diagnoses you with a language disorder or specific learning disorder.

47Dr Borg opines that:

·     Your conversational reasoning skills are unsophisticated and while you have the capacity to understand the consequences of your actions, as well as adapt your behaviour in response to feedback, due to prominent impairments in impulse control and emotional regulation, the likelihood of these skills being applied when heightened or under threat is likely to be limited.  These underlying vulnerabilities are more prominent when you are acutely intoxicated or acutely distressed or threatened.

·     You demonstrate immature decision-making skills whereby you may be more likely to respond disproportionately to triggers, with these underlying vulnerabilities more prominent when acutely intoxicated or distressed or threatened.

·     Your background and childhood experience are likely to have contributed to the formation of maladaptive personality constructs most aptly conceptualised with the diagnosis of borderline personality disorder.  As a function of this maladaptive personality structure, you display impulsive and aggressive behaviours, emotional dysregulation as well as inappropriate intense anger and stress-related paranoia.  These traits, combined with impaired verbal comprehension skills, are potential contributors to the offending.

48Based on these opinions, your counsel submitted that the Verdins principles 1 through to 4 are enlivened in your case and that there is a basis for a sensible reduction in your moral culpability on account of your very low intellectual functioning and borderline personality disorder contributing to the offending.[4]

[4]R v Verdins [2007] VSCA 102.

49The prosecution submit that Verdins does not have application as your drug use cannot be disentangled from your mental health, and it cannot be said that there was a perceived or actual threat experienced by you, given the circumstances of your offending.  You were the aggressor and you were not responding to a perceived threat. As your counsel accepts, it is a challenge to disentangle the effects of substance use and the contribution of mental health to the offending.  Your Counsel invited the Court to consider your record of interview, which I have done, in which you refer to previous issues with the victim, and that he and his brother had previously attacked you a few weeks earlier.  Your Counsel did not rely on this for self-defence, but rather in support of the submission that you may have been labouring under a perceived – that is, real or not – threat.

50Overall, an assessment of your moral culpability for the offending is complicated.  I do accept the opinions of Dr Borg and that your impulse control and emotional regulation are, at times, compromised.  However, given the circumstances of the offending, the subject of the intentionally cause serious injury, which involved your continuous attack on the victim, I am not satisfied that you were, heightened or under threat, (perceived or actual),’ or triggered such that your impairment, as opposed to your intoxication, were causal factors. Also, the offending against Mr Gregory could not be said to involve circumstances of being under threat, perceived or actual.

51I do accept that your low intellectual functioning, learning disorder, and likely borderline personality disorder do engage limbs 3 and 4 of Verdins.  However, I do not consider that the nature and severity of these conditions are such that either general or specific deterrence should be downplayed to any significant degree, but clearly, I take them into account.

Prospects of rehabilitation

52The prosecution submit that your prospects of rehabilitation are poor. 

53Using the HCR-20 risk assessment tool, Dr Borg assessed your risk level as 35/40 suggesting an elevated risk for violence, with an even distribution of risk factors across all relevant domains.

54Your Counsel relies upon your young age and the opinion of Dr Borg that you have sufficient capabilities to benefit from therapeutic interventions. 

55Dr Borg considers that as a matter of priority, addressing your drug addiction and entrenched maladaptive personality constructs is critical to your rehabilitation prospects (at [53]).

56While it appears that you have the capacity to reflect on your conduct, based on the report of Dr Borg it does seem that you do need to do further work on developing insight and empathy.  You exhibit some cognitive and emotional barriers which currently impede your capacity for victim empathy and perspective taking.

57You are prescribed Olanzapine in custody and you seem to have maintained supports in the community. 

58In all the circumstances I consider that your prospects are guarded.  I accept however that you are still a young man and that your prospects will be enhanced if you address your drug issue and engage in structured treatment to address your mental health and cognitive needs.

Other factors

59In terms of your period on remand I also take into account that in early August of last year you were moved to a management unit because of an alleged incident that occurred, resulting in more onerous conditions in custody.  It seems to me that that alleged incident must be the offending that I have already referred to.

60You have been held in these conditions since this time.  I note that we have briefly just discussed this issue and it appears that you are still in management, and as you understand it you are a long-term management prisoner.  Your conditions in custody are restrictive and include one hour of outside cell time, and two Zoom contacts each week.  You have phone contact and monthly visits.  There are no work opportunities or available courses or programs.

Parity

61On 8 February 2024, Mr Simmons, your co-accused in relation to the assault matter, was sentenced to eight months' imprisonment with four months cumulative on the sentence he was undergoing.  The court was informed he was also a young man and has a relevant and significant prior criminal history, including for offences of violence.  I consider that his history, which was provided to the court, is somewhat more extensive than yours and in particular includes a greater number of appearances in the adult jurisdiction.  It is unknown what mitigatory factors, if any, he could call upon, or whether Bugmy or Verdins principles had any application in his case. You appear to have been the instigator in this matter which to an extent elevates your culpability. However, I consider overall that, once your personal circumstances are considered along with your prior criminal histories, there is no proper basis to distinguish between the two of you.

Sentencing principles

62The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  General deterrence in particular is important in cases of this nature. 

63I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant in your case.  I have also taken into account the maximum penalties that apply.

64I have had regard to the general sentencing landscape for the offence of intentionally cause serious injury, including the comparable cases referred to by your counsel.  Each case is of course unique and the offence of intentionally cause serious injury can vary greatly, even prior to factoring in the personal circumstances of an offender.

65As agreed by the parties, you stand to be sentenced as a serious violent offender on the charge of intentionally cause serious injury.  The protection of the community must therefore be the principal purpose for sentence. The prosecution do not seek a disproportionate sentence and I do not intend to impose one. 

66The prosecution submit that a term of imprisonment with a non-parole period is necessary. Your Counsel sensibly conceded that a term of imprisonment was within range for your offending.

67I take into account the principles of proportionality, parsimony and totality. In respect of totality, while the separate criminality of each offence must be acknowledged, I am also required to look at the overall totality of your offending and arrive at the just and appropriate sentence. I have also had regard to s6E of the Sentencing Act and I have sought to reflect this in the sentences imposed, whilst also taking into account the principle of totality.  In my consideration of this principle I have also had regard to the four month sentence that you have served during your period on remand.

68Synthesising all factors you are convicted and sentenced as follows:

Sentence 

69On the intentionally cause serious injury indictment ending 143.1, you are sentenced to three years and 11 months' imprisonment.

70On the indictment ending 162, which is the charge of assault, you are convicted and sentenced to eight months' imprisonment.

71I cumulate four months of the sentence imposed on the assault charge on the intentionally cause serious injury, resulting in a total effective term of four years and three months' imprisonment.

72Taking into account the relevant sentencing principles and also the need to foster your rehabilitation, I have determined that the appropriate non-parole period is two years and six months.

73I declare pursuant to s18 that you have served 297 days in custody.

74But for your plea of guilty, pursuant to s6AAA I can indicate that I would have imposed a sentence of some five years and nine months with a non-parole period of three years and eight months.

75Counsel, were there ancillary orders sought?

76MR MOHAMMED:  No, Your Honour.

77HER HONOUR:  All right.  Mr Mathews, just wait where you are for a moment.  I am going to adjourn court, just remain there, you will have an opportunity to speak with Ms McGarvie in case you have any questions about the sentence.

78HER HONOUR:  We will adjourn the court.

79MR MOHAMMED:  Thank you, Your Honour.

80MS McGARVIE:  As Your Honour pleases.

‑ ‑ ‑