Director of Public Prosecutions v Mohanan

[2020] VCC 1737

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00868

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIVEK MOHANAN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 October 2020
CASE MAY BE CITED AS:	DPP v Mohanan
MEDIUM NEUTRAL CITATION:	[2020] VCC 1737

REASONS FOR SENTENCE
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Subject:
Catchwords: Plea – Sentence – Causing serious injury intentionally – Stab wounds – Drug and alcohol abuse - Complex post-traumatic stress disorder and borderline personality disorder – Verdins principles.

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hodge
For the Accused	Mr D. Care

HIS HONOUR:

1Vivek Mohanan, you pleaded guilty to an indictment which contained a charge of causing serious injury intentionally.  The circumstances of the offending were outlined in a prosecution opening document which was tendered and exhibited.  The facts it recited were agreed.  For the purposes of this sentence, I will summarise these events.

2At the time of the offending, you were 37 years of age and lived in Belfield.  The victim, David Fowles, was 43 years old and also resided at the same address with you. The two of you had been housemates in a shared house since October or November 2019. Mr Fowles had been a tenant from November 2017 and the landlord would reside at that address also from time-to-time but his business and work commitment here and overseas made his presence sporadic.

3After you had moved in, Mr Fowles began to suspect that you had substance abuse issues believing you to be using cannabis and drinking alcohol excessively. You told Fowles that you took antipsychotic medication and Fowles told you, you should not use drugs if you have mental health problems.

4On 25 January 2020 between midnight and 1 am, both Fowles and you were at home.  You had been drinking in your bedroom and had consumed just over a bottle of wine that evening. While you were both in the kitchen, you began asking Fowles about your neutral relationship.  Fowles felt you were acting strangely repeating your questions if you did not like the answer received.  Fowles told you your behaviour was okay and everything was fine but you said, 'This is not about me, it's about you'.  You complained that Fowles did nothing but play computer games and that he was 'mooching off the system' in reference to his receiving a disability pension.  Mr Fowles felt that you were winding him up and he became angry.  You returned to your bedroom.  Fowles followed you throwing your bedroom open and saying, 'Get back out here', that is back into the kitchen area, which you did.  He yelled that he would not be lectured to by a man with substance abuse who was drunk.

5He felt he would be too angry to sleep so instead of going to bed, he decided to cook a meal.  As he was chopping vegetables in the kitchen with a knife, you entered the kitchen and asked him, 'Why did you say those things to me?  Why are you so aggressive?'.  Mr Fowles said, 'Get the hell away from me', pointing the knife towards your bedroom to indicate.  When this occurred, you were some distance from each other.

6You continued to come in and out of your bedroom.  On one occasion, you appeared to be speaking on your phone to someone and you said in reference to Fowles, 'He's so aggressive, he was waving a knife in my face', to which Mr Fowles said, 'Ah you fucking liar'.

7About 2 am, you went out to the backyard and made another phone call speaking quite loudly.  Mr Fowles who was angry at your behaviour went into the backyard and sprayed water on you with a garden hose.  You put Fowles into a headlock to stop him and Fowles then turned the hose off.  He was laughing when this occurred and felt that this had broken the tension between you. He went back inside and you asked, 'Why did you wet me?', and he answered that he had done it because you are a prick.

8Fowles had a shower, went into his bedroom and sat on his bed and began writing in his diary.  You knocked on his door.  Fowles told you to come in.  You said, 'I don't want to come in, just don't come into my bedroom'.  He then heard you moving around the house and heard the sound of a kitchen drawer being open.

9He moved his pedestal fan so that it could clutter if the bedroom door opened.  He used to leave his bedroom door open slightly to let his cat in and out.  However, before he could get back into bed, you entered the room.  You said words to the effect, 'I'm sorry you're making me do this'.  You were holding up a knife in your hand and you then began stabbing the victim who put up his arms to defend himself receiving wounds to his arms and hands.  He tried to control your hands to prevent further injury, however, he was unable to and you stabbed him multiple times to the chest, back, neck and legs.

10Fowles stepped backwards and dropped to his knees in a small place between his bed and the door.  He was saying, 'Don't do this, this will ruin your life, you are murdering me.  If you murder me, it will ruin your life.'  However, you continued to attack Mr Fowles until he said, 'I'm sorry, for God's sake, don't kill me, dude'.  You then stopped leaving the knife embedded in the victim's right shoulder.

11It appeared to Mr Fowles that you had immediately changed your frame of mind describing it like a switch had been flipped.  You said, 'I'll help you'.  Mr Fowles asked for some water which you obtained and then despite the victim telling you not to, you pulled the knife out of his shoulder and dropped it.  Mr Fowles was bleeding very heavily as can be seen from the photographs of the scene.

12Mr Fowles managed to get his phone and with great difficulty called 000 to request ambulance and police assistance.  He placed the phone on the ground and put it on speaker.  He stated, 'I've been stabbed many times'.  Then you advised the call taker that an ambulance was required and you gave the address.  When the caller asked, 'Who stabbed him?', you replied, 'It was me, it was me, I have, I'm sorry'.  You also advised the call taker that you were alcohol affected and you provided your full name and phone number.

13After being asked what happened, you stated, 'He threatened, he was aggressive towards me all through the night so I just had to - he was just being very physical'.  Throughout the rest of the call, you were given directions on how to give first aid which you attempted to follow.

14Just after 3 am, police and paramedics arrived at the house and were let in by you.  Police asked, 'Is the offender still here?', to which you replied, 'It's me'.  Police observed you were covered in blood across your arms, legs, feet and clothing.  You were taken to another room and placed under arrest.

15The victim was still in his bedroom with a significant amount of blood on the floor.  He was unable to stand due to his injuries and he was conveyed to the Royal Melbourne Hospital.

16You told police that the cuts to your hands were sustained during the attack on Mr Fowles.  You too were taken to St Vincent's Hospital for treatment in the custody of police.  Later, Major Crime Scene Unit members attended, examined and photographed the premises and the knife used in the assault was located on the victim's bed where it was photographed.

17Mr Fowles admitted to the Royal Melbourne Hospital at 3.40 am.  His injuries were life threatening.  He had low blood pressure and required resuscitation with an intercostal catheter on both sides to drain blood from the area surrounding his lungs.  The catheter on the left side drained some 200 millilitres of blood.  He also required blood transfusion.  He required treatment in intensive care for a day following resuscitation.

18The injuries were as follows; to the head and neck, a penetrating neck wound and injury towards the back side of the right side of the neck involving, (1), a fracture of parts of two vertebrae of the cervical spine, (indistinct) at C6 and spinous process at C7; (2), damage to the C5 nerve root resulting in weakness in the right shoulder movement; (3), a 10-centimetre clot in the cephalic vein in the front of the upper arm, a complication of the neck injury; and superficial right temporal scalp incision.  To the chest and back, multiple stab wounds, three wounds at the right frontal of his chest, three wounds on his back in the thorax and lumbar areas, one wound to the right front of the shoulder and one to the right back of the shoulder.

19From the chest CT scan, he was noted to have hemothoraces, a collection of blood in the chest cavity on both sides in ground-glass opacity on the right front upper lobe thought to be a lung contusion or penetrating injury.  There was extensive subcutaneous emphysema, that is air in the soft tissues under his skin.

20As to his upper limbs, he had a 3-centimetre left forearm incision involving 80 per cent transection of the brachioradialis muscle, the muscle running along the front of the forearm.  At the back of the forearm, a 28 per cent transection injury to the extensor digitora minimus/digiti minimi, the muscle of the back of the forearm, injury to a branch of the ulnar nerve on the back of the lower forearm, multiple incisions to his hands, approximately eight to the fingers and hands, including a transection of the left radial digital artery and two digital nerves.

21As to his lower limbs, he had stab wounds to both knees, a large vastus lateralis haematoma, that is a large collection of blood, in the muscle running from the side of the thigh towards the knee, and a left stab wound at medial proximal tibia inside of the lower left leg close to the knee.  He remained at the Royal Melbourne for treatment as an inpatient from 25 January to 19 February with the first day spent as I have said in the ICU.

22He had repair and exploration of his injuries under general anaesthetic by a general surgeon, orthopaedic surgeon, neurosurgeon and plastic surgeon for hand repair.  He had extensive imaging by CT scan, X-ray and MRI.  Upon discharge, he was required to wear a hard neck collar for six weeks due to the injury and damage to the cervical spine.  He also had to wear a sling for his right arm to allow the nerve damage to repair and a splint for four weeks and a back slab for six weeks for the injuries to his forearm and hand.

23Follow-up appointments were made for outpatients review of his injuries and recovery.  His right shoulder weakness required ongoing rehabilitation and healing of nerve damage caused by such trauma which can take months.

24You remained under arrest at St Vincent's Hospital and was treated for cuts to two fingers on your right hand and a cut of the webbing of your left hand.  You were then discharged on 27 January and at the Heidelberg police station a recorded interview was conducted by police.

25You gave a very expansive explanation and made admissions during this interview over some 800 or so questions and answers.  Some of the salient points were that you felt that Mr Fowles had been controlling and very particular about the way things should be in the house.  That on the night of the incident, you had consumed a bit over a bottle of wine.  You and Fowles had a conversation in the kitchen in which you asked Fowles about how things were going with his acting, his life and his coughing fits.  You then returned to your room and then he came through the door, you said, 'Smashed open the door', which gave you a shock.  He yelled, 'Get out in the living room right now, I want to have a word with you', and said, 'I'm sick of you being passive aggressive to me', and the look on his face scared you.

26Fowles starting cooking dinner, you said, and he brought out a knife and you said that he said, 'Don't you mess around with me, you're getting a bit too much for me', but was a distance from you and was not next to you or threatening you with the knife but was using it to point.  At one point you said Fowles told you to go back to your own country or you need to go back to India.

27You went outside and spoke to a friend on the phone in Hindi and Mr Fowles came out and sprayed water on you.  You were scared, you went back into your room.  Mr Fowles was using the knife in the kitchen making loud sounds on the chopping board and when he went into his room, you thought he is going to take this further, he is going to do something and you were scared of Fowles that he would do something to you and get away with it.

28You went and got a knife, then went to your room.  Your state of mind was all over the place.  Then you went to his room, knocked and when Mr Fowles said, 'Yes, Vivek, what do you want?'.  You told the police you had taken the knife as protection and took it with you to his room in case he came at you but you had gone there to take a stand because he had been really aggressive.

29When you entered the room, you said that Fowles was on the bed and he immediately stood up and came at you.  That is when you did it.  You had no idea of the number of stabs and the first one would have been in his belly, you said.  You remember that there was a bit of wrestling and that Fowles at some point seemed to be overpowering you, you were wrestling over the knife and he nearly got it off you and then you stabbed him again for your own protection so that he would not do something to you.

30You stormed out of the room initially and thought, 'Shit, what have I done?', and then you went back and spoke to 000 hoping the worst had not happened and you wished you were more in control of the situation and wished that you had taken your medication earlier because that always calms you down.  You had not taken your antipsychotic medication of Seroquel that evening.  You told the police that when you take it, it calms you down and improves your mood a lot but when you do not take it, you experience emotional turmoil and everything gets out of control.  You had been on Seroquel for more than a year and usually took it at night before bed and you thought that the instructions for taking Seroquel would be not to have it with alcohol.  You were then charged and remanded in custody.

31I should say that in relation to your version of events in that interview, and I do not accept it, there are a number of circumstances in relation to your state which means that your account of perception of the evening even at a distance of time when you were interviewed are not reliable and also it is a feature of your particular condition that when you are not medicated, affected by alcohol, recounting such events relying on your perception and your memory, that account becomes clearly unreliable.  In any event, the facts as outlined in the Crown opening were accepted during the plea.

32A victim impact statement was received by the court from David Fowles.  He writes that he had a dozen wounds to his hands, arms, legs, neck, chest and back.  He was in hospital for four weeks with the first few days in great pain.  The nerve damage caused ongoing discomfort and left his dominant hand numb and not normally dexterous particularly his left middle finger.  Using the hand and finger is harrowing for him.

33Being in proximity to others using cutting implements causes anxiety and withdrawal and what he describes as involuntary terror.  This was particularly difficult in the management of the applied sutures and staples numbering roughly 100, together with daily injections, blood tests, dressing wound routines as well as daily chores.  He has experienced nightmares, loss of sleep, had to wear a neck brace for six weeks.  For some months, the right arm was paralysed at the shoulder.

34A nerve conduction study in March 2020 showed a complete denervation of the upper right trapezius, the flat muscle which extends from the neck down to the middle of the spine to the shoulder blade which supports arms and shoulders.  The rotation was very limited, frozen and painful.

35He had to undertake extensive physiotherapy but that has returned some motor function and most of the range of movement.  His right knee which was very damaged had somewhat recovered though scarred.  He has spent most of this year trying to regain full use of arms and legs exacerbated by the pandemic restrictions.

36He notes that patches of his skin are numb and the tendons in his forearms which were stitched together are still tight upon movement with pain and strange sensations persisting.  He has of course many scars.  He had to relocate with the tendon costs, the stress too contributed to the development of a stammer which may affect his performance at work.  These events have also impacted emotionally and financially on his family all of who live interstate but came to Melbourne to support him.

37I take this victim impact statement into account.

38Intentionally causing serious injury carries a maximum penalty of 20 years' imprisonment.  By this measure, the legislators have given an indication of the seriousness of this criminal offence and this maximum is one guidepost in the sentencing synthesis to consider.

39The offence of intentionally cause serious injury can of course occur in a wide variety of circumstances with the result of a broad spectrum of punishment.  In Tasevski v The Queen, His Honour Nettle J as he then was reported at [2014] VSCA 135 at paragraphs 3, said that given the maximum penalty,

'As has been observed on other occasions, it may thus be expected that the worst instances of the offence will attract sentences of 15 years' imprisonment and upwards.'

40Just like Tasevski, in my view, this is not among the worst instances of the offence but it was serious.  Although the serious injury which you caused did not leave the victim with gross and permanent disability sequela or catastrophic life altering crippling disabilities like paraplegia or brain injury, in the wide range of serious injury which the crime encompasses, this was not the top of the scale but ranks in the top of the middle range of seriousness.  This is the unfortunate reality of what this court sees every day in terms of the infliction of serious injury.

41Beyond this general descriptor, any further categorisation is of little use in my view.  I have assessed the objective gravity of the offence rather by an analysis of the factual elements as a reliable criteria.

42Notwithstanding this was neither greatly planned nor well thought through and carried out alone, the assault took place late at night in the victim's own home with the use of a formidable weapon (see the photo in the depositional material), a knife.  You stabbed Mr Fowles about 24 times, you injured many parts of the victim's body inflicting significant injuries which have impacted his life and will continue to do so.  It was a sustained attack in the face of protestations and pleading to stop.  It was carried out by the infliction of many wounds, not just a few or a single blow, to parts of the body, particularly neck and chest and back, in which serious injury was probable and intended in a state of intoxication in the face of not having taken medication for a mental condition.

43In my view, it was your intention to inflict really serious injury until the realisation of what you had just done dawned upon you (see Nash [2013] VSCA 172) upon a victim who was in his bedroom at night, vulnerable in the sense that the assault upon him by a known person was not expected and therefore he had no real opportunity to adequately defend himself and who in reality had not offered any significant provocation. This was therefore objectively serious offending and the sentence must reflect this.

44I will describe your personal circumstances which I take fully into account.  These circumstances are relevant not only in order to take account of your background but because aspects of it give rise to submissions in relation to the sentence regarding moral culpability and the impact of personality disorder upon that and other sentencing principles.

45You are single and have no children.  You have no prior convictions or findings of guilt and this is your first time in custody.  You were born in India, the youngest of two children.  Your mother still lives in India as does your older sister with whom you have remained in contact.

46Your father died in April of this year while you were on remand.  You did not have a close relationship with your parents during childhood.  Your father was a civil engineer whose work took him and the family out of India.  From early years there was pressure to follow in his footsteps in terms of qualification and work.

47Your schooling was primarily undertaken in Oman due to your father's work.  At times, you lived with relatives in India during your schooling.  You found school difficult but you persisted completing a VCE equivalent over four years.

48Your mother was said by you to be verbally, physically and emotionally abusive into your adulthood.  Having been in effect unable and unwilling to follow your father's career, your parents sent you to Australia supposedly to gain a sense of independence and to study.

49In Australia, you had a number of jobs in sales for Optus, Telstra and a solar panels company after you had studied in Brisbane.  You came to Melbourne and in 2014, you worked for MYOB.  You were there subjected to bullying, that causing you to leave in 2017.  This also had an impact on your mental health.

50Prior to your remand, you were again a sales consultant for a solar panels company for about six months, employment which you had obtained with the assistance of Centrelink by way of a disability employment service.  When working at MYOB, you began to drink alcohol daily drinking throughout the day, at its peak consuming 4 litres of wine every one to two days.  By the time of your offending, this had reduced to about half a bottle of red wine per day, though your consumption on the night in question was considerably more than that.

51The issue as to your mental health was taken up in the expert reports of Dr Mathew Barth, psychologist, dated 5 October 2020.  This was a very detailed and helpful report to which I shall refer in a moment.  Other materials were also received.  You have been referred by Dr Schoenberg who in 2017 was your GP to a personality disorder service, Spectrum.

52Another doctor, Dr Lieske, had originally referred you to Spectrum.  Dr Schoenberg requested a report from Spectrum in May 2017 and Dr Kwong Yeang, the psychiatry registrar with Spectrum, provided a report in June 2017.  At that time, you had sought 'diagnostic clarification and treatment recommendations'.

53Dr Yeang noted your background.  At that time, you were living alone, you were unemployed, living off your savings.  You had reported a decline in your mental state over the last two years, being unable to work or sustain relationships and friendships experiencing low mood, loss of motivation and internal distress.  You were attempting at that time to deal with these matters by regular cannabis use.  You had ongoing symptoms of irritable bowel syndrome and these recent issues highlighted to you your difficulties dating back to childhood.

54Back in 2015, you had been prescribed sertraline.  In 2016, you had seen a psychologist, Fiona Lange, and you discussed the possibility of a complex post-traumatic stress disorder and borderline personality disorder.  You saw her, Ms Lange, over the next three years.

55You presented to Dr Yeang as intelligent, articulate and curious.  He noted you came from an affluent educated family.  You were sensitive and hyperactive as a child and received significant criticism, invalidation and verbal abuse.  Your parents' attempt to make you conform involved corporal and emotional punishment and scapegoating you for their marital conflicts.

56Your father drank heavily and was often away from home.  When living in the middle east, you were fearful of being attacked which remained with you since then.  This observation coming as it does in a report years before the offending is notable.  Dr Yeang notes some incident of 'sexual assault'.  Dr Barth mentions in his report 'distressing events'.

57As I mentioned at the beginning, I received clarification yesterday from Dr Barth that you mentioned these two incidents when you were younger but that you were unsure as to whether anything sexual happened. Certainly no further detail is disclosed by you about these events of an explicit sexual nature to Dr Yeang.

58It would appear that any sexual aspect may have arisen out of your fear as to sexual predation upon children by adults which you related to being chased by a man in the street and what you named 'standing local knowledge' about such predation in the Oman. You told Dr Yeang that you felt that being sent to Australia to study was a gesture of rejection and denigration of your capacity to succeed by your family.  However, you completed a university business degree and did work in an accounting and finance environment.  You, however, reported feelings of inadequacy, binge drinking, substance use, distrust of colleagues and an inability to develop close relationships.

59In 2017 then, Dr Yeang diagnosed a borderline personality disorder.  At that time, your problems were set out.  It was said that the severity of your symptoms appear to have been longstanding as is usually the case with a properly diagnosed borderline personality disorder but had become more obvious in the last two years.

60You reported feelings of emptiness and insecurity, unstable identity, affective dysregulation which included prominent and internal anger with intimidating demeanour, distrust, emotional distancing, fear of rejection and difficulty managing closeness.  There was a sense of paranoia and intense suspiciousness, impulsivity and other related issues including recurrent suicidal ideas.

61Dr Yeang also diagnosed the post-traumatic stress disorder as you reported flashbacks and chronic anxiety and vigilance, dissociative symptoms.  He noted your alcohol use and cannabis use were attempts to control and avoid difficult internal states.  As a comorbid condition to the borderline personality disorder, he saw as an alternate major depressive disorder and therefore concluded your situation could be conceptualised as a complex post-traumatic stress disorder.  He noted, however, this was not a formal diagnosis under the DSM-5.

62Dr Yeang made a list of recommended approaches to your mental problems at pp.4 and 5 of his report.  He recommended attending the Spectrum Intensive Team 10 Week Group Program, psychotherapy, ongoing treatment with Fiona Lange, psychologist, and other suggestions including medication options.

63As I mentioned earlier during the course of the plea, I asked which of these recommendations you had actively taken up. Unfortunately Ms Lange was not forthcoming with a report but it would appear that you did attend to her over a period of some three years.

64Yesterday I was provided with a file note from Spectrum's Senior Clinician, Davila Levin, dated 28 August 2017 in relation to my query which indicated that you had presented for a day program assessment, described having been prescribed (indistinct) and feeling better, that you had consequently reduced cannabis use but that upon learning that the program was in the nature of psychoeducation rather than therapy, you decided not to enter into it and the assessment did not proceed.  You were told to discuss therapy options with Ms Lange.

65During the plea and in the written submission of counsel, it was essentially that Dr Barth's report which was relied on, although Dr Barth had the report of Dr Yeang as one of the supporting documentation which he read.

66Based on his opinion, it was not submitted that Limbs 1 to 4 of Verdins were enlivened in your case.  However, the details of your personality disorder provided an explanation for the offending and did enliven Limbs 5 and 6 of Verdins.  I shall return to these in a moment.

67Even though Limbs 1 to 4 were not called into play in a formal sense of reducing moral culpability, the detailed outline provided by Dr Barth is, in my view, instructive and ultimately relevant to the appropriate and just punishment to be imposed as well as other aspects such as remorse, prospects of rehabilitation, the assessment of risk and need for community protection and of course they are inherently your personal circumstances.

68These details are also relevant to the weight to be assigned to general deterrence and special deterrence as well as denunciation.  I set out his report in these reasons in some detail because it is not so much the diagnostic label which is important but how the condition described affected your mental functioning at the time of the commission of the offence and about how it would affect you in the future, a matter which, as has frequently been emphasised, requires rigorous scrutiny by the sentencing court of the expert evidence.

69This case is not a situation like in the recent decision of the Court of Appeal in Brown v The Queen [2020] VSCA 212, a landmark case in relation to personality disorders. There, at paragraph 35, the disorder in question had a very significant impact on the appellant's ability to exercise proper judgment and contributed causally to the commission of the offence.

70The court stated there that,

'Any causal explanation for her offending [in relation to Ms Brown] without reference to personality disorder would be "fatuous and empty".'

71Although, in my view, your disorder had a contribution to make in making irrational choices and caused you to fail to experience the inhibition required to not act as you did, the evidence of the experienced expert asserts that your disorder had 'some relevance to your behaviour' and that notwithstanding the severity of the issues discussed, there was no indication that they in effect impaired your functioning to a degree where you were incapable of understanding the wrongfulness of your behaviour.

72Dr Barth recited your background and history in similar terms as Dr Yeang but in more detail in paragraphs 10 to 22.  Under 'Mental health history', he noted your sadness, anxiety, poor self-esteem in much of your life which you experienced feelings of inadequacy, resentfulness and irritability since your childhood years.

73You told Mr Barth your recent anxiety and irritability in isolation was exacerbated in your awareness by heavy drug and alcohol abuse culminating in sleep disturbance and paranoid ideation.  Thoughts that people had malicious intent towards you and would degrade and humiliate you intensified under the influence of alcohol and cannabis.

74This very awareness is the reason why I consider that your intoxication on the night is an aggravating feature of your conduct.  You were having difficulties managing ongoing conflict you perceived with Mr Fowles and although with the help of Ms Lange you had reduced your alcohol consumption, it is clear that you were still using it to alleviate your social and mental health issues even though you knew it would likely lead to more dysfunctional behaviour.

75It is, however, notable in this context that you had not experienced violence before which would have aggravated your offending further.  This was the first time you had erupted into violent behaviour.  Dr Barth opined that you meet the criteria for a major depressive disorder with anxious distress and recurrent episodes of moderate severity.

76In terms of your personality adjustment and the associated traits, these have caused you considerable difficulty throughout your life and are sufficiently severe to warrant a diagnosis of borderline personality disorder.  The core traits of your personality disorder are emotional instability and impulsive and disinhibited decision-making.  They are pervasive, inflexible and impairing and exacerbated by moderate alcohol use and cannabis use disorders which are currently in early remission in the control environment of your reclusion.

77In your case, these latter disorders of abuse require long-term containment.  Dr Barth assessed you to pose a moderate risk of reoffending with your prospects of rehabilitation being conditional upon engaging in appropriately offence specific treatment and services.

78You appear to have engaged well in the treatment you undertook with Ms Lange and also with that offer to you in custody which mitigates your risk to some extent.  So although I find that your prospects of rehabilitation are reasonable because borderline personality disorder is a lifelong disorder, community protection is still a relevant consideration conditioned as your rehabilitation is upon ongoing therapeutic engagement.

79Dr Barth writes that given your emotional issues and dysfunctional personality adjustment, your imprisonment will be probably more difficult and onerous than for a person without these obstacles.  Concomitant to that burden, I accept that such environment places you at greater risk that your disturbance may be made worse in custody and I take that into account.

80I take all these matters into account, particularly as they relate to Limbs 5 and 6 of Verdins.  I will moderate the sentence because of those factors.  In my view although falling short of the criteria required for Limbs 1 to 4, I should moderate both general and specific deterrence in your case commensurate to the relevance of your disorder to the offending.

81Its presence explains the genesis of your behaviour but accompanied by your otherwise previous good character, a lack of prior criminal history, it moderates the weight which these principles as well as denunciation carry in this sentence.  They are mitigatory matters to which I give some moderate weight.

82However, they are still most relevant particularly as your emotional instability and poor coping skills are risk factors for violent recidivism (paragraphs 55 and 56 of Dr Barth's report), and your insight into your behaviour remains underdeveloped.

83You have, while incarcerated, completed a number of therapeutic programs six of which were enumerated in a letter from Victoria Hutchins, a clinician at the Everton Unit of Ravenhall Correctional Facility.  Certificates for these and other programs were tendered and I take them into account in your favour.  Three urine assays results from February, June and September of this year, all negative to illicit substances and opioids, were tendered attesting to your abstinence.

84I take your plea of guilty into account.  I accept that it is accompanied by remorse and shame for your conduct which you expressed to police and professionals and many others and in a letter directly to Mr Fowles.  This is borne out by your statement to Dr Barth which he recites in full at paragraph 41 and 43 of his report.

85Your plea was made at an early stage of proceedings and that value also is reflected in its utilitarian aspect having avoided a costly criminal trial involving police and civilian witnesses.  The value of the plea is further enhanced in this period of pandemic when the criminal justice system has been limited in its ability to deliver justice.  I take this into account and will accordingly reduce your sentence.

86I take into account the effect that the pandemic is having on correctional services.  It has and will continue in the foreseeable future continue to impose more onerous conditions not only upon entry but ongoing by way of restrictions on work, services, visitors but also by way of lockdowns and the anxiety over contagion that comes in the midst of a closed environment.

87To this, I add the concern over the wellbeing of friends and family outside of the prison.  In your case, your family is in India but that does not diminish your concern.  Additionally, it may mean that unless friends come to visit you, you will experience reclusion as a significantly solitary experience.  I take these matters into account.

88During the course of the plea as a result of further reading, I have had reason to read many decisions of the Court of Appeal and this court in relation to the issue of current sentencing practice and the unifying principles one can glean from them.  I refer in particular to the list said to be of comparable cases provided by the prosecution, the list appended to the decision of Nash to which I have referred, the case of Tasevski [2014] VSCA 135 at paragraph 55 where a number of cases are referred to by description of injuries and then consequences and the more recent cases mentioned by the Crown also contained other case references most of which I have read. I also consider the Sentencing Advisory Council snapshot for this offence.

89Comparison with other cases will always be of limited assistance in determining appropriate sentence in any individual case and while current sentencing principles are important, care must be taken when having regard to sentences passed elsewhere because they are clearly referable to the events to which they are referable and do not of themselves fix boundaries which dictate future dispositions.

90Discerning, as I have noted, unifying principles from such decisions aids in the instinctive synthesis required by the judicial discretion to be exercised.  The offence here is objectively grave.  The injuries sustained by a fortune and not design were not fatal, though they could well have been.  Not only did you have an opportunity to desist after the water spraying incident from continuing with your aggression but also during the attack itself as Mr Fowles pleaded with you to stop.

91The prosecution submission dealt with the effect of s.5(2H) paragraphs (a) to (e) of the Sentencing Act.  This provision applies to require a sentence of imprisonment for intentionally cause serious injury unless the criteria outlined in the above section applies.  No such exceptions were argued here.

92The prosecution argued your offending was mid to high range and although I have described it slightly differently, the objective seriousness lies in that range.  I should not omit to note that I have taken into consideration that upon the assault concluding, you endeavoured to assist the victim not only in contacting ambulance and police but in caring for the wounds inflicted and you then remained present at the scene and immediately informed police of your
guilt and corroborated fully with them thereafter and that is to your
credit.

93The court received a number of personal references, one from Chris Senarath, sales manager from SolarHub for which you were a sales consultant just before your remand.  He wrote of your remorse that employment came through a disability employment service.  He writes of your work ethic and possibility of future employment.

94Dr Sebastian is associate dean at Torrens University and was your teacher at Queensland University of Technology between 2002 and 2003.  In 2008, he got to know your family in India and he became a close family friend.  He too speaks of your extreme remorse and your potential as an educated and intelligent individual to contribute to society.

95Your older sister is a director of a preschool in Bangalore in India and she writes of your generosity, your financial support for your family.  She also offers hers and the support of the entire family.

96Dr Satyan Chari from Queensland, occupational therapist, knew you from your time in Brisbane as part of a close social group.  He was shocked by your predicament and writes of your self-spoken, courteous, affable disposition for whom the offence committed is out of character.

97Drs Amit and Sonia Deveshvar both write jointly in support of you.  Dr Amit is the principal dentist for Queensland Health and the ADF as a contracted dentist.  They write of the time you shared a house whilst studying at QUT in 2006.  They too write of you as well-mannered, cultured and courteous and know of your mental health issues and medication related to it.  They confirm your remorse and acceptance of responsibility with an offer of future accommodation if required.

98Ross Green, legal conveyancer, has known you from 2018 where you shared a house with him and others.  When that lease ended, you all decided to live together in a share house for a further two years.  He writes of you as a deeply sensitive intelligent and reflective man.

99You also as I have mentioned before wrote a letter to David Fowles in which you apologised for the physical and mental trauma you caused him and those close to him and which you profoundly regret.  I take this as a genuine expression of remorse and take into account the testimonials I have mentioned tendered on your behalf.

100On the charge of intentionally cause serious injury, you are convicted and sentenced to six years' imprisonment.  I order you to serve four years before eligible for parole.

101But for your plea, I would have sentenced you to 7,5 years with five years non-parole period.

102I note you have served 278 days excluding today by way of pre-sentence detention and I will have that number noted in the court's records.

103I have signed today ancillary orders which are disposal orders for the knife.

104Ms Hodge, are there any other ancillary orders?

105MS HODGE:  No other orders, Your Honour.

106HIS HONOUR:  Thank you.  Mr Care, you were able to hear the sentence and you can no doubt have a conversation with your client at the appropriate time unless the convenience of doing it now you would like to speak to him briefly, I am happy to do that if you wish.  We will put everyone else in a lobby or just simply close off and you can have a chat to him if you wish.

107MR CARE:  Your Honour, we will arrange a ‑ ‑ ‑

108HIS HONOUR:  A conference?

109MR CARE:  ‑ ‑ ‑ one-on-one conference at a later time, Your Honour.

110HIS HONOUR:  Yes.  Thank you, Mr Care.

111All right.  Thank you, Mr Schornikow.  Sine die.

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