Director of Public Prosecutions v Matthews
[2023] VCC 1602
•7 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW MATTHEWS |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 September 2023 |
| DATE OF SENTENCE: | 7 September 2023 |
| CASE MAY BE CITED AS: | DPP v Matthews |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1602 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing serious injury recklessly – possession of a drug of dependence – victim stabbed in the neck after altercation at a campsite – plea of guilty during trial – relevant criminal history – high moral culpability – reasonable prospects of rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102; Winch v R [2010] VSCA 141
Sentence: Total effective sentence 42 months imprisonment. Non-parole period of 28 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr I. Polak | Clancy Solicitors |
HIS HONOUR:
Introduction
1Andrew Matthews, you pleaded guilty to:
(a) causing serious injury recklessly;
(b) possession of a drug of dependence being methylamphetamine;
(c) possession of a drug of dependence being cannabis.
2I will sentence you to 42 months' imprisonment. I will fix a non-parole period of 28 months' imprisonment. I will declare your 574 days of pre-sentence detention (excluding today) as time served under my sentence.
Circumstances
The circumstances of your offending are set out in the document entitled 'Summary of prosecution opening for plea'. You agree with its contents. In part, it says:
'Both the accused (site 2) and the Complainant (site 1) had been living in caravans situated approximately 50 metres apart at the Police Paddock Reserve Campground. They had occupied these sites for a number of months leading up to the alleged attack. There had been a history of disharmony between them.
On Wednesday 9 February 2022 the complainant had returned to his caravan at approximately 10.15 pm. He had consumed some alcohol and had taken Valium and some pain-killing medication. A verbal argument between the two men took place outside the caravan. The argument developed into a physical struggle between the two men inside the annexe to the complainant's caravan. At some stage during the struggle, the accused picked up a knife used it to deliver a single slash/stab to the Complainant's neck. The knife did not belong to the Complainant, and it is unclear exactly where it came from. The wound involved lacerations of the jugular vein. It produced copious bleeding, which drenched the clothing of both men. After stabbing the Complainant, the accused returned to his own campsite and went to bed. His blue singlet had been torn in the struggle and a blood-stained section of the garment was later found in the Complainant's annexe.
The Complainant has no recollection of the events immediately before being stabbed. He recalls the Accused standing over him at some stage. His next recollection was coming to in the caravan around 5.00am, lying alone in a pool of blood. He had been stabbed in the left side of his neck. He managed to call Triple 0. Police and paramedics attended and rendered assistance before he was conveyed to hospital. The Complainant had sustained a life-threatening injury to his neck, necessitating protracted surgery.
During the lead-up to the incident, the Complainant and the Accused exchanged abusive text messages.'
3The complainant is Mr Cornelius. He was taken to the Albury Hospital by ambulance and then to the Royal Melbourne Hospital. Dr Maria Nittis was part of the team who attended to Mr Cornelius' injuries and also reviewed the hospital records. She gave oral evidence. The prosecution opening records[1]:
'Forensic Physician Dr Maria Nittis reviewed the medical records relating to the Complainant's injuries and treatment. In her opinion the Complainant sustained an incised wound to the neck caused by a sharp object. The wound was sufficiently deep to cause a significant laceration to the jugular vein and a complete laceration to the C5 nerve root (spinal cord). He was treated initially at Albury Hospital and then taken to Royal Melbourne Hospital for surgical repair. Following his discharge from hospital he continues to suffer difficulties relating to the C5 nerve damage. Specifically, he remains unable to lift his left arm'.
[1] At [14].
Criminal history
4Excluding appeals, between 1989 and 2016, you have appeared in a criminal court in this State and New South Wales on 21 occasions and have been found guilty or convicted of 86 charges. You have been sentenced to a term of imprisonment on 12 occasions. Those sentences included two wholly and one partly suspended sentence of imprisonment. Your longest sentence of imprisonment was 18 months which was wholly suspended. This was imposed in February 1995 in this Court on appeal from the Magistrates' Court.
Victim impact statement
5Mr Cornelius made an impact statement on 25 July 2023. He has lost trust in people. He is anxious, angry, confused, and frustrated. He has become isolated. He is medicated for depression. He has difficulty going to sleep. He has moved from the camping ground to a unit in another town. His injury made it difficult for him to physically manage living in a caravan.
6Physically, he experiences a constant burning pain in his neck and left arm, there is also numbness. His ability to move his left arm is restricted. It affects his ability to perform daily and recreational activities. He is conscious of the scarring. He does not now believe he is able to work in aged case for physical and mental reasons. He cannot return to an earlier occupation as a chef.
Personal
7You are now 51. You were born in Beechworth. Your parents, both 75, live in Corowa. You have three brothers. The eldest died at 12. The other brothers are younger than you and live in Corowa and Wangaratta.
8When you were three, your family went to live in Melbourne. When you were 15, your father suffered a work injury, resulting in the partial amputation of his left leg. You and your father left Melbourne for Tocumwal while your mother and brothers remained in Melbourne for a further two years.
9Your secondary education ended during Year 10. For the next five years you worked with your father at a portable timber mill. You then worked on a farm and then in a knackery for several years.
10When you were 22, your family moved to Beechworth. You worked in earth moving for three years and then in a winery. Since 2006, you have worked in either a winery or in earthmoving. At the time of the offending, you were often working as a vineyard hand. Your work became erratic because of the virus' restrictions and your loss of a driver licence.
11Between the ages of about 23 and 35, you were in a relationship. There is one child of that relationship, Harley. There is another child of a different relationship, Renee. Harley gave evidence on the plea. You are in contact with your children. Both live in Beechworth and want you to live in that town, whether with one of them or near to them.
12You told the psychologist, Mr Cummins, of the decline of your mental health in the months leading up to the assault. You attribute the decline to the intimidation and controlling behaviour of the victim. In that period, you did not live exclusively at the campsite but spent some time living with one or other of your children. You told the psychologist this was to spend time away from the victim.
13You first drank alcohol at about 14. By 17 or 18, you were an alcoholic. Your dependence lessened during the second of your relationships but increased more recently. Your dependence was so bad, you told the psychologist, 'I was often drunk on a daily basis'.
14Also at about 14, you started using cannabis. Again, by 17, you were dependent on the drug and have remained so, smoking up to four grams a day.
15There have been earlier dependencies on amphetamine and heroin with the past five or six years being dependent on methamphetamine. Most days you injected up to half a gram of the drug.
16From your perspective, at the time of committing this offence, you were dependent on cannabis, alcohol, and methamphetamine.
Psychologist
17Jeffrey Cummins is a clinical and forensic psychologist. On 4 August 2023, he interviewed you at the request of your solicitors[2].
[2] Report dated 29 August 2023.
18Using an assessment tool called HCR-20, Mr Cummins considered your risk of committing future violence offences was moderate. Under that tool, there are five categories of such risk where moderate is the middle category. He identified your risk factors as alcohol, drugs, and your mental health. He noted your desire to stay away from alcohol and substances, adding, 'He did not appear particularly confident about being able to achieve this goal'[3]. He recommended residential drug and alcohol rehabilitation.
[3] At [42].
19He diagnosed you as suffering from a major depressive disorder, which is intermittently exacerbated by your use of substances, including alcohol. You believed the antidepressants you take in custody benefit you. He also diagnosed disorders related to alcohol and substances. You were suffering from both at the time of your offending.
20He considered you had relatively limited insight into what he called your historical and current psychological function. He noted your regret and remorse for your offending.
21You told Mr Cummins your actions were done in self-defence. Your guilty plea renders the belief of no value. The contents of the prosecution opening, which you accept, contradicts such a defence. You told Mr Cummins contradictory things. On the one hand, you wanted a trial to pursue self-defence. On the other hand, 'He stated he was relieved that his offer to plead guilty to a charge of recklessly causing injury had been accepted by the prosecution'[4].
[4] At [38].
22Mr Cummins noted your substance use was your way of dealing with the emotional pain of your brother's death so many years ago. Not unnaturally, he recommended mental health treatment.
23Although Mr Cummins considered your impaired mental health played a role in your offending, you did not rely on any of the limbs or principles stated in R v Verdins[5]. This is understandable for your mental health influenced your offending through the use of substances to counteract the emotional pain. It is too indirect to raise any of the relevant Verdins principles.
[5] [2007] VSCA 102.
Discussion
Purposes
24Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
25Each of the purposes of sentencing is relevant to the sentencing of you. My sentences should act to deter you and others from committing these or similar offences.
26Section 5(2) of the Sentencing Act sets out matters which I must consider where relevant.
Maximum penalties
27The maximum penalties for the offences to which you have pleaded guilty are:
(a) causing serious injury recklessly – 15 years' imprisonment;
(b) possession of a drug of dependence – 30 penalty units or one year imprisonment. This is on the basis your possession was for a non-trafficking purpose.
Gravity
28The offence of recklessly causing serious injury was considered by the Court in Winch v R[6] where it said:
'…the court's assessment of the seriousness of a particular instance of recklessly causing serious injury will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.'
[6] [2010] VSCA 141 at [36].
29In that case, the Court was dealing with glassing where it considered a person who offends in this manner is taken to have foreseen a high probability of serious injury. This was so whether the bottle used to strike the face or head of the victim was broken or not. Stabbing your victim in the neck with a knife has at the very least, the same degree of probability of serious injury as that of glassing.
30The offence of recklessly causing serious injury occurs if the offender foresaw the probability that his or her action would cause serious injury to the victim and went ahead regardless of that probability[7]. This was your state of mind at the time you stabbed the victim and your guilty plea affirms it.
[7] Winch at [35].
Culpability
31There is nothing to reduce the level of your blameworthiness from high. Judging from what you told Mr Cummins, you have considered the issue of self-defence. Your guilty plea to the charge of recklessly causing serious injury abandons self-defence.
32Neither does the factious relationship between you and the victim reduce your level of blameworthiness.
Guilty pleas
33An evaluation of the value of a plea of guilty involves when it was entered, or an indication was given as to an intention to plead guilty. In your case, you pleaded on the fifth day of your trial. However, the trial was interrupted by the sickness of the prosecutor. In terms of the evidence to be led in a trial, not much had been led. You originally pleaded not guilty to the charge. It was one of five charges laid against you including a charge of aggravated burglary. In terms of timing, it was an early plea of guilty for the prosecution were intent on pursuing both the aggravated burglary and intentionally causing serious charges.
34A guilty plea means you have accepted your guilt for an offence. This is an unequivocal acceptance of your responsibility for the particular offence. In some cases, people do not accept a person is guilty until he or she pleads guilty. This is so even though the person has been found guilty following the verdict of a jury.
35The fact of a guilty plea is usually evidence of establishing your remorse. Along with the other evidence, I consider you are remorseful. Your remorse is important because it shows a determination not to reoffend.
36Your guilty pleas have the practical effect of assisting the criminal justice system in dealing with criminal cases. It removes your proceeding from the list of those cases requiring a trial. A jury trial is a time consuming and expensive exercise. You have created space for those proceedings which genuinely require a trial and avoid the need for witnesses to give evidence in this Court.
37Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. The virus still disrupts the progress of trials in this Court. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
Prospects of rehabilitation
38Your criminal history is replete with offences of violence, establishing you as a violent person. You have a long history of drug and alcohol addiction and were using cannabis, alcohol, and methamphetamine at the time of the offending. Your use of methamphetamine was pronounced, having been dependent on the drug for the past five or six years and injecting up to half a gram of the drug on most days. Interestingly, Mr Cummins assessed you as a moderate risk of violent reoffending even though he was uncertain as to your ability to remain drug and alcohol free.
39You have the strong support of your children. They are prepared to house you if the need arises. They would like to keep you near to them in order to help you.
40My sentence on the charge of causing serious injury recklessly will be easily the longest sentence you have received. Although previous sentences of imprisonment have not deterred you, this should be a strong deterrent to reoffending in the same or a similar manner. It may even induce you to rehabilitate yourself.
41Overall, I consider your prospects of rehabilitation are reasonable.
Community correction order
42Your counsel submitted a combined sentence was appropriate. At the time, I declined to order an assessment as to your suitability for such an order for my ability to sentence you to imprisonment is limited by legislation. It is too limited for the offence of causing serious injury recklessly in the circumstances of your case. I maintain that view.
Sentence
43On Charge 1, a charge of causing serious injury recklessly, I sentence you to 42 months' imprisonment.
44On Charges 2 and 3, I will convict you on both charges and discharge you. The amount of the drug is small in each instance and no useful purpose will be served by fining you.
45I will fix a non-parole period of 28 months' imprisonment.
46I declare the 574 days of your pre-sentence detention as time served under my sentence today. This figure excludes today.
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47If you had not pleaded guilty to Charge 1, but had been found guilty after a trial, I would have sentenced you to 63 months' imprisonment.
Forfeiture and disposal orders
48I will make the disposal order in the terms sought.
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