Director of Public Prosecutions v Meza (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

FELIX MEZA (a pseudonym)

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2024
DATE OF SENTENCE:	25 November 2024
CASE MAY BE CITED AS:	DPP v Meza (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 2140

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: causing serious injury intentionally – Bugmy
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37; Carbris v The King [2023] VSCA 285; Maybus v The Queen [2017] VSCA 125 (30 May 2017); Frecker v R [2021] VSCA 331; Hasan v The Queen [2010] VSCA 352.
Sentence: Total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years and 2 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Crouch	Office of Public Prosecutions
For the Accused	Ms T. Stokes	Menoz Bowler & Co

HER HONOUR:

Felix Meza[1], you have pleaded guilty to one charge of causing serious injury intentionally.
[1] A pseudonym.

Circumstances of the offending

The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
The victim of your offending is your mother, Camille Villa[2]. You were 31 at the time and residing with her in Tarneit. She was 56 years of age.
[2] A pseudonym.
In the weeks prior to the incident occurring, you had moved back into the family home where your mother and other family members lived.
At approximately 5:30PM on Monday the 24 April 2023 a neighbour, Blaine Austin[3] heard loud shouting and screaming from next door. He attended the address and observed your mother, Ms Villa, sitting in the driveway with her legs crossed. He attempted to help her up, but she appeared too intoxicated to walk. He then came and spoke to you. You both assisted her inside and then Mr Austin left.
[3] A pseudonym.
At approximately 7:15PM Ms Villa and her daughter, Ingrid Fitzgerald[4] had a verbal argument and she called 000.
[4] A pseudonym.
At 7:26PM police attended. They observed that all parties were affected by alcohol. At approximately 8:05PM Ms Fitzgerald and her boyfriend were provided with crisis accommodation information and were transported to the Tarneit Train Station by police. You and your mother were the only persons left at the house.
Shortly after police left, Mr Austin returned to check on your and your mother’s welfare. At around 8:55PM your brother Erik Wallace[5] attended the address and observed that your mother's vehicle was damaged. He ended up speaking to you about it, which escalated into a physical fight and he punched you in the nose causing a blood nose. He then left the property at approximately 9:00PM. You remained at the property with Mr Austin and your mother.

Offending

[5] A pseudonym.

You, your mother, and Mr Austin were in the undercover outdoor patio area at the side of the property. You engaged in a verbal argument with your mother. You headbutted and punched her with a closed fist to the face causing her to fall backwards into a small blue shell shaped dog pool. After falling to the ground she was no longer arguing with you or resisting in any way.
While she was on the ground, you grabbed her by the hair, lifted her head up and kicked her in the face. Mr Austin described the action as if you were kicking a football. You were screaming and shouting whilst assaulting her. Mr Austin feared for his own safety and retreated to his house.
From his house Mr Austin could hear you shouting. He returned to your house and found you hosing your mother down with a garden hose, washing the blood off her face and the concrete. You were saying words like, “I love you mum. Wake up, wake up” and then “you dog, you cunt” towards her.
Police were contacted, as outlined in the prosecution opening, and arrived at 9:33PM. Your clothes were wet and you were bleeding from the nose. They located your mother in the undercover patio. She was covered with blood. She was unresponsive but grunting and bleeding. Ambulance Victoria Paramedics arrived and treated her. She was conveyed to the Royal Melbourne Hospital where she was placed in a medically induced coma from 24 April 2023 – 29 April 2023.
On 24 May 2023 Ms Villa’s medical records were assessed by Dr Maaike Moller from the Victorian Institute of Forensic Medicine. Dr Moller opined that Ms Villa had sustained: blunt force trauma to her head causing extensive and complicated facial fractures and extensive bleeding and bruising inside the brain. She was profoundly unconscious and had immediate airway compromise requiring emergency placement in a coma. Without this intervention she would have died. Her facial injuries and intracranial bleeding were extensive and complex, as outlined.
As a result of her injuries she developed a pneumonia caused by the exposure to stomach contents while she was unconscious at the scene.
At the time of preparing the VIFM report (May 2023) Ms Villa still suffered from residual double vision and impaired movement in the right arm, with “profound effects on daily tasks from self-care to driving”. At the plea hearing it was agreed that there were no serious long term consequences and that Ms Villa had ‘made almost a full recovery.’
You were arrested on 24 April 2023 and conveyed to Werribee Police Station. You participated in an interview and your responses are outlined in the prosecution opening at paragraph 21.
You have remained on remand since your arrest on 24 April 2023. Your pre-sentence detention as of today will be 581 days or approximately one year, seven months.
Ms Villa has declined to make a victim impact statement.

Gravity of offending

The charge you have pleaded guilty to is serious, as reflected by the maximum penalty of 20 years' imprisonment. It is also a category 2 offence, effectively requiring a term of immediate imprisonment and there was no submission that any relevant exception is enlivened in your case.
Your Counsel accepts that the offending is serious but submits that, assessing it within the relevant framework[6], it falls within ‘mid-level seriousness’ and not at the higher end of objective seriousness. She points to a variety of factors, including: the lack of any premeditation or planning; that no weapons were used; and that you acted on your own. She submits that your offending conduct occurred within quick succession and the incident itself was not protracted. She describes your conduct as a ‘momentary lack of control in a state of intoxication’. Further, she submits that while the injuries were potentially life threatening at the time, they have not caused permanent disability and there is no evidence of ongoing injury.
[6] See R v Nash [2012] VSC 507 [10].
Your Counsel also submits that the Court should not find, to the requisite standard, that your intention at the time was to cause your mother really serious injury. Your Counsel points to your desistance after the kick and upon realising that your mother had lost consciousness, along with your ineffective attempt to render assistance. She submits, you did not intend the significant injuries caused to your mother. In the context of being highly intoxicated, you did not foresee that the three blows,kicks, inflicted would cause the very serious injuries suffered. She therefore submits that you should not be sentenced on the basis that you intended these results.
The prosecution characterises your offending as ‘above the mid-range’. They submit that you deployed extreme force to your victim’s head, which ‘is indicative of intention to cause really serious injury’. Further, they submit that applying ordinary sentencing principles charactering the offending as a momentary, intoxicated ‘lack of control’ cannot mitigate the seriousness of it, as your intoxication was self-induced which, in the circumstances, is aggravating[7] . The prosecution submit that you have previously been sentenced to CCO’s with therapeutic conditions aimed at your drug and alcohol problems and in 2021 County Court judicial monitoring. You must have known the impact alcohol had on you.
[7] Hasan v The Queen [2010] VSCA 352.
In more recent times, the higher courts have observed that the general utility of the distinction between intention to cause serious injury and really serious injury has been substantially reduced in practical terms by the 2013 redefinition of serious injury, which in turn has eliminated a range of serious injuries which were not ‘really serious’ from the ambit of the definition’. In Carbris v The King the Court of Appeal stated ‘… in each case the ultimate characterisation of an offenders’ intention must be by reference to the circumstances of the case as a whole rather than by labelling’[8] . The Court went on to say at [27]:
‘That said, there will of course be cases where an additional specific intent beyond the intention to cause serious injury can be identified. In a particular case, the evidence may demonstrate an intention to blind, or disfigure permanently, or to maim, cripple, or cause the maximum possible harm’[9].
[8] [2023] VSCA 285 [26].
[9] Ibid [27].
In all the circumstances, and accepting the submissions advanced on your part in this respect, I am not satisfied to the requisite degree that you had an additional specific intention beyond the intention, as pleaded, to cause serious injury.
Your offending is nevertheless serious. Mr Meza, you viciously attacked your mother, in her own home, while she was in a particularly vulnerable state. You continued to attack her after she had fallen to the ground and rendered helpless. As submitted by the prosecution you caused your mother life threatening injuries and your attack of her was sustained, in that it continued after she had fallen to the ground. The impact of the injuries, although as agreed, now largely resolved and she has almost made a full recovery, were significant and profound in the immediate aftermath.
Also, relevantly, as submitted by the prosecution, your offending occurs in the context of family violence, which heightens the prominence of denunciation, general deterrence and community protection.
I accept that your offending arose spontaneously in the setting of being totally disinhibited by alcohol and drugs. However, in your case, this is not mitigating[10] . Voluntary substance use may go some way in explaining your behaviour but it provides no excuse for the offending.
[10] Noting that in some cases it can be raised, e.g. R v Fletcher-Jones (1994) 75 A Crime R 381.
You clearly have longstanding drug and alcohol issues. In the psychological report of Dr Laura Anderson, dated 2 December 2020 and tendered on your behalf in this plea, you are recorded as stated that when you consume alcohol ‘it changes my behaviour’ and you often feel ‘highly emotional when intoxicated’ and become ‘increasingly emotionally reactive’ (at 5.5.1). While the precise circumstances of your previous offending is unknown you do have a number of prior convictions for violent offending where you appear to have received therapeutic orders which include drug and alcohol conditions. I am satisfied to the requisite standard that, at the time of this offending, you did have a relevant awareness – not of necessarily acting with the ferocity and to the extent that you did – but that when intoxicated you are likely to become aggressive or violent. I take this into account in my assessment of your moral culpability and it is also relevant to the weight to be given to specific deterrence[11].
[11] R v Martin [2007] VSCA 291.
The circumstances leading up to the offending itself are not mitigating but they do place what occurred in some context. At the relevant time, as already noted, your brother, sister and her boyfriend all lived with your mother in her home. On the day of the offending itself, Ms Villa had returned from Court, having been sentenced for allegations of family violence involving her father as the victim. She consumed alcohol and engaged in an argument with your sister, culminating in your mother asking her to leave. When they refused, she called the police to have them removed. As the night wore on, both you and your mother continued to drink to the point where she was found lying on the driveway. Your brother ended up punching you in the face and headbutting you, before leaving the property. By the time the offending occurred, you and your mother were both heavily intoxicated, an argument ensued, with you both yelling at each other, which very quickly escalated. I note here, and I will return to this shortly, that your relationship with your mother is a particularly strained, traumatic and complex one.

Plea of guilty

There was some dispute as to whether your plea can be regarded as an early one. Your case proceeded as a contested committal where witnesses were called, although the complainant herself was not called. At committal, the disputed issue principally concerned the ‘gross violence’ component alleged at the time. Your Counsel submits that you should get the full benefit of entering an early guilty plea as the crown conceded the gross violence question post-committal. The prosecution assert however that your plea should not be regarded as an early one as you did not offer to plead guilty to the charged offence. Your plea offer was to a charge of recklessly cause serious injury.
Pursuant to s 5(2)(e) of the Sentencing Act 1991 a sentencing judge must have regard to the stage in the proceedings at which the offender pleaded guilty ‘or indicated an intention to do so’.
In assessing the weight to be given to the plea, as a mitigating factor, it is relevant for the sentencing judge to consider the utilitarian value of the plea, as an objective factor, together with subjective considerations, including whether the plea was attended by remorse, a willingness to facilitate the course of justice and an acknowledgment of responsibility, by the particular offender[12] .
[12] Maybus v The Queen [2017] VSCA 125 (30 May 2017).
As the Court stated in Maybus v The Queen at [46][13]:
Each case must, of course, depend on its own facts. In particular, the question whether an offender pleaded guilty, at the first reasonable opportunity, depends significantly on the context of the particular case.
[13] Ibid [46].
On the face of it, you did not indicate a plea of guilty at the earliest opportunity. You have pleaded guilty to a different charge, though based on largely the same factual structure or matrix. It was therefore open to you to proffer a plea of guilty to the current charge on an earlier occasion. Having said that, I accept that your plea is still an early one and you were not previously contesting all criminal liability. Once the gross violence component of the case was removed it helped pave the way to resolution.
In all the circumstances of the case, I do consider that your plea entitles you to an important sentencing discount. I accept that it demonstrates your willingness to facilitate the course of justice and an acceptance of responsibility on your part. Your plea also has utilitarian value, saving the cost and resources of a trial, and sparing your victim and other witnesses from having to give evidence in front of a jury. Also, while your relationship with your mother is a complicated one, I do accept that your plea is indicative of some remorse. In the immediate aftermath of the assault, although you continued in your verbal abuse, you tried to wake your mother up and said words like ‘I love you mum.’ Also, although not candid in your interview with police I accept that you did express some concern for your mother’s wellbeing.

Personal circumstances

Your personal circumstances were outlined by your Counsel and are canvassed in the neuropsychological report of Dr Mathew Staios and the psychological report of Dr Laura Anderson.
In brief summary, you are 32 years of age and were born in Tasmania, with the family relocating to Brisbane and then settling in Melbourne when you were a young child. Your early childhood was unstable and you report exposure to ‘criminality, substance use, and mental health disorders modelled by [your] parents’ (Staios, at [3.1]). Growing up you were exposed to considerable conflict between your parents and after they separated you had little contact with your father as he was frequently incarcerated. Your father was killed in an attempt to escape custody on your tenth birthday.
You and your two siblings were raised by your mother as a single parent. She experienced her own challenges and displayed significant mental health issues, including major depressive episodes and often resorted to self-harming behaviours and suicide attempts. She has also battled with substance abuse throughout her life. You recall several instances throughout your early childhood where your mother would be severely intoxicated and accost individuals in public places. You also report saving her from a suicide attempt by way of carbon monoxide poisoning. In speaking with Dr Staios you characterised these events as extremely distressing. Your siblings have also suffered from substance issues throughout their lives and your relationship with them, at times, has been strained.
You also spoke to Dr Anderson about the complex relationship you have with your mother. Growing up you often had to help and support her when she was heavily intoxicated and you were exposed to considerable instability and neglect. You reflected to Dr Anderson that you love and care for your mum but sometimes found it difficult to let go of some of your past experiences (at [5.3.3]).
You left school in Year nine as a result of anxiety, an unstable home environment and difficulty focusing. You were suspended on several occasions and ultimately decided to leave school and commence work. You have previously worked in retail, fencing and labouring positions. You worked as a panel beater for a period of six years between 20 to 25 years of age. Over the last few years your employment has been unstable as a result of issues with substance use and periods of incarceration.
You report a significant history of alcohol and substance use, dating back to childhood, including periods of binge drinking throughout adolescence. You first consumed alcohol when 12 years of age and progressed to regular binge drinking on weekends by 15 years of age, and from there you were daily drinking for various periods. From the age of 18 you started to use methamphetamine periodically which soon progressed to addiction and daily use from the age of 26. You have a history of substance use leading to psychotic episodes, including auditory hallucinations and delusions. You have two documented episodes of contact with adult mental health services.
Before your current period in custody, you report ongoing cannabis and methamphetamine use. You also report a history of past recreational and experimental use of ecstasy, GHB and cocaine. You engaged in a drug detoxification program in 2017 and in various course throughout your time in custody.
As an adult your accommodation has been unstable. You have periodically lived with your mother however this has usually been impacted by your strained relationship, which often results in arguments and physical altercations. Following your previous release from custody, you were bailed to emergency accommodation and residing in a motel in Footscray for about a week. You experienced some homelessness, couch surfing or sleeping rough, before returning to stay with your mother. As at the time of the offending, you had little time, or opportunity, since your release to work towards, or achieve, some stability in your circumstances.

You have previously had a long term relationship which ended as a result of mutual issues with substances misuse, mental health and conflict. This relationship resulted in the birth of one child, a daughter who is now aged around seven. She has been placed in the custody of extended family members. You report contact with your daughter following separation but that this has been supervised given your history.
Dr Staios administered several standardised psychological tests to measure your cognitive functioning which indicated that your overall level of intellect fell within the average range (see [6.2]-[6.8]). There was no evidence to indicate the presence of cognitive impairment as a result of substance use or any other factors.
You have an extensive and relevant prior criminal history. Your history includes offences of violence and breaching family violence intervention orders. You have received a range of dispositions including community corrections orders and terms of imprisonment. You were last released in around November 2022 and, as already noted, remanded on this matter several months later. I note that this period on remand, to date, represents your longest period in custody.

Other factors

Dr Staios states at [7.2] of his report:
‘Mr Meza’s psychosocial history is complex and relates to significant psychosocial stresses and the modelling of maladaptive behaviours by his primary caregivers, including criminality, substance use, and exposure to unstable behaviours in the context of mental health.’
He considers that your childhood has had a ‘profound impact’ on your early development and resulted in ‘several psychologically destabilising factors as a result of witnessing his only remaining primary caregiver frequently turn to substances and attempt suicide on multiple occasions.’ He considers that this has resulted in a limited capacity to cope with adversity and regulate your emotions and has ‘interfered with [your] ability to form a secure attachment, resulting in a genesis of complex trauma, a toxic attachment style, and a lack of safety and security’ (at [7.2]).
Dr Anderson diagnosed you as presenting with clinical features of Complex Trauma, representing exposure to multiple enduring traumatic events that impact negatively upon one’s sense of psychological safety, as was the case throughout your childhood (at [7.2.1]). Additionally, she diagnosed you with several drug use disorders, at that time, in remission (at [7.2.2]). In the context of different offending, she refers to your relationship with your mother as a positive one but as impacted by your distress and past traumatic experiences and lack of feelings of psychological safety.
I accept, Mr Meza that your history of trauma, dysfunction, instability, neglect and your exposure to antisocial attitudes and behaviours during your early crucial developmental periods has disrupted your early development. In turn, this has impaired your coping strategies and ‘resulted in the formation of an unstable self-image’ (at [7.2]).
In sentencing you, I accept your Counsel’s submission that the Bugmy principles have application. Adopting the general approach, I accept that your subjective culpability, which I would otherwise assess as high, cannot be equated with that of a person who’s had the advantage of a stable and regular environment, free of trauma and abuse, during their childhood and formative years[14]. In all the circumstances, including an assessment of the nature and circumstances of the offending, and the nature and severity of your disadvantage and its impact, I accept this is an important mitigating circumstance in determining the appropriate sentence in your case. These complex factors mean I must moderate to some extent the weight I would otherwise have given to general deterrence, denunciation, and the punitive aspects of the sentence I impose on you. Also, they inform the weight I give to specific deterrence and protection of the community in your case.
[14] Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; Marrah v The Queen [2014] VSCA 119; DPP v Drake (2019) VSCA 293.
Relying on the opinions of Dr Anderson and Dr Staios your Counsel also submitted that Verdins principles are enlivened, in particular limb 3, as it relates to general deterrence[15].
[15] R v Verdins [2007] VSCA 102.
On the evidence, I am not satisfied that your complex trauma contributed to this offending. Nor am I satisfied that the effect of your condition on your mental capacity is of such a nature and severity as to warrant the reduction of general deterrence as a sentencing consideration. As Dr Staios opines, it is both your mental health and your entrenched substance use, that are inextricably at the core of your prior and current offending. As already noted, I accept that you suffer from complex trauma and that many of the matters giving rise to this form part of your deprived background, which I take into account.

Prospects of rehabilitation

There is a need for some caution as to your rehabilitative prospects given your prior history and the challenges you present with.
As already noted, Dr Staios considers that your mental health and substance use are at the core of your prior and current offending (at [7.4]). He considers that you would benefit from case management and from engaging with a psychiatrist specialising in the treatment of substance use disorders and with a counsellor to assist with managing symptoms of childhood trauma and other issues (see at [7.5]). In her earlier report, Dr Anderson also made a range of recommendations, including intensive alcohol and other drug counselling to address your pattern of alcohol and other drug use.
Your counsel told the court that you are presently on Zoloft for depression and were on a wait list to see a nurse for Suboxone. You have also started to engage in counselling in custody. You are committed to improving your health. You are working full time in custody in steel work and are also pursuing other activities. You have family support and your older sister can assist in providing you with an address on your release and is willing to help you in any way that she can.
I take into account the protective factors in your case, including a degree of family support and contact, brief periods of abstinence and, according to Dr Staios, relatively well-developed insight into the impact of your substance use and offending (at [7.6]). Supports, as recommended, abstinence from substances and stable housing will enhance your rehabilitative prospects and, in turn I note, better protect the community.

Sentencing purposes

The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors, including the seriousness of your offending, your culpability and your personal circumstances.
I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I also take into account the principles of parsimony and proportionality.
There was no dispute that the only just and appropriate sentence is a term of imprisonment comprising a head sentence and a non-parole period.
I have considered the general sentencing landscape for the charge of intentionally cause serious injury and the cases referred to by your Counsel. These obviously have their limitations and, as has previously been observed, a consideration of cases in this Court for intentionally causing serious injury reveals that there is a wide range of circumstances covered by this offence.

Sentence

Synthesising all relevant considerations you are convicted and sentenced to five years’ imprisonment. I consider that justice requires that you serve a minimum non-parole period of three years and two months’ imprisonment..
Pursuant to S.18 I declare you have served 581 days of pre-sentence detention.
Pursuant to s.6AAA but for your plea I would have sentenced you to seven years with a non-parole period of four years and nine months’ imprisonment.
Mr Meza, what I am going to do is I will leave the link on for a moment so that you can speak to your counsel in case you have any questions, but what I have done is I have sentenced you to a total term of five years, you have a non-parole period of three years and two months and the time that you have done will come off that. Do you understand.
OFFENDER: I understand, thank you, Your Honour.

[2024] VCC 2140

25 November 2024