Director of Public Prosecutions v Murphy

[2019] VCC 974

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00865
Indictment No: H12545947.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN MURPHY

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	26 June 2019
DATE OF SENTENCE:	28 June 2019
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2019] VCC 974

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:            
Legislation Cited:     Sentencing Act1991.

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Baldwin v The Queen [2015] VSCA 299; Valayamkandathil v The Queen [2010] VSCA 260; DPP v McKay [2018] VSCA 292; Ejupi v The Queen [2014] VSCA 2.

Sentence:                3 years’ imprisonment, 2 years non-parole.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. A. Sprague	Solicitor for the Office of Public Prosecutions
For the Offender	Mr C. Pearson	Greg Thomas Barrister and Solicitor

HER HONOUR:

1       John Murphy, you have pleaded guilty to one charge of recklessly cause serious injury.  The maximum penalty is 15 years imprisonment.

2       The victim of your offending is Daniel Giammarco. 

3       It is not necessary for me to recount in great detail the facts of this matter as it was opened by the learned prosecutor consistent with Exhibit A.  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. 

4       In addition, you have an extensive and relevant criminal history in particular offences of violence.  I shall return to that later during these sentencing remarks. 

5       At the time of this offending, you were 49 years of age and are 50 at sentence.  You were at your mother’s address Unit 6/4 Morshead Street, Ascot Vale, although you lived at a different address in Ascot Vale.

6       The victim of your offending, Giammarco, lived at Unit 3/4 Morshead Street, Ascot Vale.  You and your victim had known each other for a number of years prior to your offending. 

7       On Sunday, 10 September 2017, at approximately 7.30pm, you left 6/4 Morshead Street, Ascot Vale and started yelling at a neighbour, Brett Smith, who lived at 2/4 Morshead Street, “Tell Danny that I want my money”, referring to the victim, Giammarco, who owed you $30.  Brett Smith saw you were armed with what appeared to be a kitchen knife with a silver blade and that you appeared to be very angry and erratic. 

8       Giammarco who overheard you yelling at Smith, came outside and asked you, “What is your fucking problem?”

9       You, armed with a knife, immediately approached the victim and attempted to stab him to his head area.  Giammarco put his left hand up to defend himself and was stabbed by you in the webbing of his left hand between the thumb and index finger, which caused a very deep laceration to the webbing area, as the knife entered one side of Giammarco’s hand and exited the other.

10      Giammarco returned to his unit, grabbed a towel, wrapped it around his hand to stem the bleeding and exited his unit to approach you. 

11      You remained at the front of the victim’s unit and continued to make threats to him saying, “I'm going to stab you.”  Giammarco and you continued to engage in a verbal altercation, during which you chased Giammarco round the carpark while still armed with a knife. 

12      Witnesses at the scene heard someone yell, “I've been stabbed” and called an ambulance.

13      The incident was partially captured on CCTV which I viewed and which showed you having an altercation with Smith, and aggressively chasing the victim while armed with a knife in the carpark. 

14      You then returned to Unit 6. 

15      A short time later, Giammarco took a baseball bat from his unit and attended Unit 6.  He smashed a number of windows at that address before returning to his own unit to await arrival of paramedics and police. 

16      Police attended and spoke to Giammarco.  They saw a significant stab wound to his left hand.  Giammarco immediately nominated you as the offender. 

17      At approximately 7.40pm you were arrested by police at the scene and were transported to Moonee Ponds Police Station for interview. 

18      In that interview, you said that Giammarco and his friends, had made threats to shoot you.  That Giammarco came out with a knife and tried to attack you.  That you got Giammarco’s knife and stabbed him because he was saying “You’re gunna die, you’re gunna get shot.”  You did not know what happened to the knife afterwards.  You did not recall putting it in the bathroom sink. 

19      You in essence said you acted in self-defence.

20      You were charged and remanded in custody. 

21      Police seized clothing worn by you which appeared to have blood on it.  Photographs and swabs of blood were also taken from the location of the incident.

22      On 11 September 2017, the day after this offending, police attended Unit 6/4 Morshead Street, Ascot Vale and executed a search warrant.  They found a steak knife in the bathroom sink.  Police saw what appeared to be blood on the knife and it was seized.

23      Giammarco was treated at the scene by paramedics and taken to St Vincent’s Hospital by ambulance, initially treated in the Emergency Department, prior to surgery. 

24      At the hospital, Giammarco gave a statement to police and also took three photographs of the injury he sustained, which he later gave to police (5 photographs were before me, Exhibit C). 

25      Giammarco’s medical records were obtained from St Vincent’s Hospital and forwarded to the Victorian Institute of Forensic Medicine for review by forensic physician, Dr Jason Schreiber.

26      The victim had sustained 5-centimetre bleeding penetrating stab injury in the web space between the thumb and index finger on the palmar side of his left hand with a 4-centimetre exiting incision injury on the back of the hand.

27      Giammarco underwent emergency specialist plastic surgery, which included nerve repair surgery.  Dr Schreiber concluded it was a “substantial” injury based on the extent and location of the injury, and noted future risks of impairment of hand functionality, infection and scarring. 

28      Giammarco, I was told, gave evidence at the contested committal in April 2018 of ongoing altered sensation in his hand and loss of movement.

29      There was a further report of Dr Schreiber and some medical notes in relation to the injuries sustained by Giammarco.  In that report dated 24 January 2018, Dr Schreiber gave a further opinion regarding the injuries sustained by Giammarco.  Giammarco still had numbness around the left thumb 3 weeks post-surgery, sensitivity around the injury, skin blisters, and a forearm plaster splint.

30      Eleven weeks post-surgery Giammarco still had numbness to the left thumb and his specialist said that could possibly be permanent, a slight sensitive scar, flashbacks or nightmares about the attack, and a potential diagnosis of PTSD.

31      The chronology relevant to your offending, and entry of your plea of guilty, was set out in the prosecution opening. 

32      On 10 September 2017, you were arrested and remanded in custody in relation to this offending.  Thereafter there were a number of filing hearings, committal mention hearings, a contested committal, and bail applications prior to this matter proceeding before me as a plea of guilty on 26 June 2019. 

33      On 24 April 2018, after the contested committal you were committed on all the charges then before the Magistrates’ Court.  At an Initial Directions Hearing the matter was listed for a 10 day trial on 25 March 2019.  A plea offer was made by those representing you on 18 March 2019 to the charge on the Indictment, accepted by the prosecution on 19 March 2019.  I note, as does the prosecution, you entered your plea of guilty to the relevant charge shortly before the listed trial date. 

34      You have, however, pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea of guilty, been spared the time and cost of a trial, and witnesses, in particular Giammarco, have not been required to give evidence upon your trial.  I note that you did not enter your plea of guilty early and also, in the Record of Interview minimised your involvement in this offending, rather urging self-defence.  You have, however, pleaded guilty, and there is utilitarian benefit in your plea of guilty.  I am prepared to accept your plea of guilty indicates some remorse for your offending, although I am concerned about the extent of your remorse given in particular your history relevant to ‘violent type’ behaviour and your awareness use of Ice could lead to aggressive behaviour by you.  I hasten to add however, I am not saying you are not remorseful for your offending. 

35      As at the date of your plea hearing, up to and including 25 June 2019, you had spent 655 days in custody by way of pre‑sentence detention. 

36      You have admitted a significant and relevant criminal history commencing with a violence offence on 2 March 1987.

37      You have appeared at Court on multiple occasions reflected in an 18 page criminal record admitted by you.  Various dispositions have been imposed over the years including terms of imprisonment.

38      You have appeared for violence offences on 24 April 1996, 13 August 1998, 29 February 2008, 27 November 2012 and 19 May 2015.  Your other offending included dishonesty and drug offences, amongst others.

39      I was given information regarding two of your prior matters; one dealt with in 2015 which involved violence towards your then partner, and the assault upon your mother in 2008. 

40      The prosecution summary referable to 2015 described an argument between you and your partner, and physical assault upon the victim.  At one stage you ‘pulled a knife’.

41      Regarding your offending dealt with in 2008 and involving your mother, that began as a verbal dispute, then a physical assault, then escalating to you, with a knife, causing a small laceration to her throat or neck.

42      Your counsel, Mr Pearson, provided a Written Outline of Submissions for your plea hearing. 

43      Turning to the background of this offending, you had known the victim for many years and were in the habit of using Ice together, as a result, Giammarco owed you $30.  You were at your mother’s flat in Ascot Vale on this night.  You maintained the victim had threatened you on previous occasions.  You had been using Ice heavily on this night and were under the influence of it. 

44      You became angry with Giammarco and shouted at Smith, who knew the victim, to get the money Giammarco owed you.  The situation escalated rapidly and you committed this offence.  You now regretted your offending saying you overreacted.

45      Mr Pearson appropriately conceded your offending was serious and warranted a term of imprisonment.  I agree.

46      Turning to your criminal record, Mr Pearson referred to your Court appearance on 19 November 2015 and the sentence of 18 months, with a minimum of 13 months as I discussed with counsel.  You were released from that sentence in August 2016 and remained out of trouble until this offending (approximately 13 months later).  Mr Pearson also referred to your prior court appearance in 2008 which involved an assault upon your mother. 

47      Mr Pearson submitted your most recent offending involving violence commenced after you began using Ice, which caused you to be unpredictable and violent.  In this most recent period of remand, you said you had resolved to remain drug free on your eventual release.

48      Details were provided regarding your personal circumstances (Exhibit 1 paragraph 13) and elaborated upon in other reports provided. 

49      Mr Pearson referred to your plea of guilty albeit conceded that in your Record of Interview you attempted to explain your offending as self-defence.  You no longer, maintained that position and accepted the defence of self-defence was no longer tenable. 

50      You accepted you over-reacted to a debt of $30.  Mr Pearson urged your plea of guilty indicated remorse for your offending, which you had also expressed to Ms Cidoni when interviewed by her.  You took full responsibility for your offending.

51      Mr Pearson submitted you had spared the time and expense of a criminal trial and I have previously referred to your plea of guilty, the timing of it and its relevance to sentence. 

52      Regarding your rehabilitation prospects, Mr Pearson urged they were not ‘hopeless’.  You retained the support of your mother and others who described you as otherwise good character when you were not drug-affected.  You were, he submitted, not profoundly psychiatrically unwell and you had your own accommodation in Ascot Vale referable to your rehabilitation.  I note however you had the support of your mother and your own accommodation at the time of this offending. 

53      Mr Pearson conceded your prospects of rehabilitation were linked to your ability to abstain from illicit drug use.  I have my concerns about your ability to do that, although note two certificates tendered (Exhibit 6) of courses undertaken and completed by you in custody whilst on remand – an Ice effects program dated 30 November 2018, and a 6 hour AOD & Loss program dated 2 May 2018. 

54      You previously had drug treatment in 2006 with DASWest, yet despite your subsequent violent and other offending when under the influence of heroin and/or prescription medication and/or Ice, you had not sought further counselling to address this obvious ongoing problem.  This concerns me.

55      If you continue to use drugs, in particular Ice, in my opinion it is likely you are going to continue offending, either to feed that habit and, at worst, involve you in further violent offending.  I have, at best, guarded optimism regarding your rehabilitation prospects, however, when sentencing you, I must seek to maximise your chances of rehabilitation, as they may be. 

56      Mr Pearson submitted that while it was appropriate you be sentenced to a term of imprisonment for this offending, he urged I consider having you assessed for a Community Correction Order, which could be imposed in combination with the imprisonment you have served to date (approximately 21 months).  I have considered his submission however do not consider in all the circumstances of your case such to be an appropriate disposition.

57      There was a report from Gina Cidoni, psychologist, dated 15 June 2019, who interviewed you on 14 June 2019 whilst you were in custody.  You accepted your actions involving Giammarco were extreme, however, at the time you were on Ice and ‘out of control’. 

58      Ms Cidoni referred to an earlier report by Bernard Healey dated 18 May 2012, which indicated you had a full-scale IQ of 78, with evidence then of depression, anxiety, a paranoid trend, and social introversion/withdrawal.  At that time you detailed your drug addiction over the years and at the time of your offending in December 2011, which included thefts and threatening behaviour towards police this occurred when under the influence of prescription pills.

59      Ms Cidoni also referred to a report prepared by Dr Lester Walton dated 23 March 2015.  In his opinion there was no pattern of cognitive deficit and no evidence of psychosis.  At that time, you were also reporting polysubstance abuse, recurring depressive episodes, self-injury and frank suicidality.  You were then on Methadone.  You said at the time of that offending, your methamphetamine use would have contributed to your aggressivity.  Dr Walton also noted that due to your dull intellect you were more vulnerable to the erosion of judgment in the face of drug use.

60      I have no doubt that you are aware that when you are under the influence of drugs you are likely to offend and in a violent/aggressive manner.

61      Ms Cidoni addressed your background and history.  Your parents broke up when you were very young, and you had never known your biological father.  Your mother’s family helped raise you.

62      At the age of five, you moved with your mother and her new partner to Altona.  That relationship ended when you were 9 years of age.  Your mother secured a Commission home in Ascot Vale where she continued to live.  For years she worked as a supervisor at the Royal Melbourne Showgrounds, before taking a position with a bank, later being retrenched and currently on a Disability Support Pension. 

63      You met your wife, Carol, in 1986 and were married in 1988, although separated in 2000.  You got back together for a brief time in 2002, then broke up due to your drug use and you being jailed.  There are three children of that relationship.  The eldest son had not been in contact with you since he was 12.  Your daughter lives in South Australia.  Your youngest daughter lives near her sister as I understand it.  You have not had contact with them since you had been in custody.

64      Between 2000 and 2011, you mainly lived on the streets, couch surfing, or sleeping in the lobby of your mother’s Commission flat building.  Your mother refused to let you live with her due to your drug use.

65      Before most recently going into custody, you were living in your own accommodation in Ascot Vale which you had since 2011.  Your flat was still being held for you as at your plea hearing.

66      You attended a number of primary schools, then attended Flemington High School, but were asked to leave in Year 7.  You then briefly attended Kensington Community School. 

67      After school, you worked as a strapper in stables in Flemington, but eventually left, and were then unemployed until age 18 when you secured a job with the local counsel maintaining parks and gardens. 

68      When you were 18, you began a series of short-term jobs, including as a delivery driver and builder’s labourer, however you were mostly unemployed.

69      You have been on a disability pension since 2010 and had only undertaken part-time work since 2010, working at the Royal Melbourne Show annually.

70      You were hit by a motor vehicle when you were 9 years of age as a pedestrian, and were unconscious as a result, spending 2 weeks in the Royal Children’s Hospital then 3 months recovering at home. 

71      You were involved in a car accident as a passenger in 1980 but did not sustain any serious injuries. 

72      You described injuries as a result of playing football, specifically the reduced use of your wrist which subsequently led to you being on a disability pension. 

73      You described a history of drug abuse, commencing in adolescence, cannabis use at the age of 15, which continued over the years.  When your marriage ended, you began regular intravenous use of heroin until 2006.  You were currently prescribed, I was told, 90 millilitres of Methadone.

74      By the time you were 30, you began using amphetamines intravenously but abandoned that after 6 months.  Since 2010, you had been using methamphetamines regularly, smoking and intravenously, and last used a couple of days prior going into prison in 2017.  In addition, you used prescription drugs, including Xanax and Rivotril, from 2005 to 2014. 

75      Reference was made to some drug rehabilitation, as I have said, in 2006 with DASwest which seems as part of a bail condition. 

76      Psychological testing was undertaken by Ms Cidoni with the results in her report (paragraphs 34-47).  She concluded your cognitive memory function was intact on testing, as previously reported by Mr Healey in 2012. 

77      Personality testing revealed depression, anxiety and PTSD, most likely from childhood trauma, antisocial traits and paranoid functioning, although not further elaborated upon by her in her Report.

78      You also began using substances from your teenage years with heroin use from 2000 to 2006 and Ice from 2010.  Antisocial behaviour also began in your teens and you had served several terms of imprisonment for mainly drug-related and dishonesty matters.  Your most recent imprisonment was in 2015 as I have said for an act of violence towards your then partner.  Following your last release from prison, you relapsed into drugs fairly quickly.  In her opinion, a pattern of institutionalisation was emerging. 

79      Ms Cidoni noted that Substance Abuse Disorder was your major problem, although she suspected underlying borderline personality traits.  Anxiety was also present.

80      Ms Cidoni noted your abuse of methamphetamine contributed to your aggressivity in your offending in 2015 and here.  You expressed remorse for your offending where you injured your long-time friend over $30.

81      In Ms Cidoni’s opinion you were vulnerable to drug relapse.  I agree.

82      There was also a report from Dr Walton, consultant psychiatrist, dated 23 March 2015, and available to Ms Cidoni.  Dr Walton saw you on 20 March 2015, when you were then at Port Phillip Prison prior to your 2015 court appearance. 

83      You had difficulty recalling the details of your offending at that time and stated you believed your memory loss was likely contributed to your then poly drug use. 

84      Further details were provided of your personal history and circumstances within the report.  At that time, you were continuing on maintenance Methadone at quite a low dose.

85      Referring to a report of Mr Healy, Dr Walton noted your assessed IQ of 78, towards the lower limit of the normal range. 

86      In the opinion of Dr Walton, you were a poly-substance abuser, a man of dull intelligence, but not formally intellectually disabled.  As a seasoned prisoner, he concluded you did not experience incarceration as unduly onerous, on the other hand, the lack of discomfort was a source of concern in that you may become increasingly institutionalised. 

87      Also before me was a report of Bernard Healy dated 18 May 2012.  I have read that Report however given it is somewhat dated I will not summarise its contents.  This Report and that of Dr Walton were both available to Ms Cidoni most recently and she incorporated those within her Report.

88      There were two references before me, one from Dakota Clayton dated 29 May 2019, who had known you for the past 29 years.  Your mother is her godmother and she regarded you and she to be her family.

89      She described, over the years, being saddened to see you go through your addictions.  You had, however, over the years, showed her love, support and kindness.

90      This was the first time she had known you to really want to beat your addictions, and she encouraged that.  You had expressed a willingness to attend any programs offered.

91      There was a reference from Mark Brewer dated 15 May 2019, who had known you since you moved into the Ascot Vale Public Housing Estate approximately 38 years ago.  He described his progression, along with yours, of drug use, beginning with cannabis, progressing to Speed, then “onward and upward”.  When you met, you were a group of boys with no helpful programs available 30-odd years ago.  After your grandfather’s death, he described that you spiralled out of control and said this was the first time in all of your incarcerations since the age of 16 you expressed a desire to get clean and change your life.  You had told your mother you were now willing to do any programs assigned by the Court.  He said he could help you get back to the community and gradually introduce you to a volunteer program through Food Bank and the Men’s Shed at Wingate Avenue.  This was the first time you had expressed remorse and an interest in finding a new path and new life for yourself.  He was willing to support you when in the community.

92      In Court to support you during your plea hearing was your mother, who was a victim of your offending in 2008 and I was told Mr Brewer was here today.

93      Mr Pearson referred again to your history of violence having commenced from 2008, consistent with the time you began to abuse prescription medication and also began use of Ice.  I discussed with him, however, a number of earlier Court appearances for matters involving violence, albeit not of the same type of offence as that currently before me.  You do, however, have a history of violence and as I have said in addition a very extensive ‘other’ criminal history.

94      Mr Pearson submitted that you were of “dull intellect” and resorted to drug use.  You regretted your offending.

95      Mr Pearson conceded the use of a knife was an aggravating circumstance of this offending.  It is.

96      You said you had known Giammarco for many years, but the relationship soured, with threats, you said, and hostility towards you by him, and he owed you $30.

97      Mr Pearson conceded that on this day you were highly agitated. 

98      Mr Pearson conceded, on the material before me, the principles of R v Verdins & Ors[1] did not have application, and that was an appropriate concession on the material before me.

[1](2007) 16 VR 269.

99      Mr Pearson stressed you had currently spent 21 months approximately on remand and that over that time you had changed your attitude to this offending.  When initially in custody he said it was difficult to obtain precise instructions from you, however, with the passage of time, you had thought about your offending and now pleaded guilty to it.  Your attitude now was more benign and compliant.

100     Mr Pearson referred to the reference from Mr Brewer to which I shall shortly refer, regarding the death of your grandfather, the only significant role model in your life. Thereafter, you developed drug-style offending behaviour.

101     You said you regretted your drug lifestyle and when you are released from prison you wanted to return to your flat, near your mother, and not use drugs.

102     Mr Pearson urged the community had an interest in your rehabilitation and that you would benefit from ongoing therapy/counselling.  I agree you need further drug treatment.

103     Mr Pearson conceded the injury caused to Giammarco was ‘significant’, but not life-threatening, and was the result of a single knife wound.  Conceding, it was ‘nasty’ and required plastic surgery.  I am aware of that.

104     Regarding your current accommodation, that was being ‘held’, although it was unknown whether it would be kept for you for much longer. 

105     Mr Pearson agreed the protective factor of accommodation had been available to you at the time of this offending, although he submitted you were using drugs and not appreciating the jeopardy in which you put that accommodation.

106     Mr Pearson conceded there needed to be just punishment, denunciation and general and specific deterrence when sentencing you.  He is correct.  Also, there would be community concern regarding the prevalent use of knives in violent offences.  I agree consistent with authorities.

107     Mr Pearson also relied on the delay in this matter finally being determined.  However, as I discussed with him, the delay was primarily the result of you maintaining that you acted in self-defence until the contested committal.  Thereafter counsel was able to engage in meaningful discussions with the prosecution.

108     Mr Pearson submitted the injury caused to Mr Giammarco was not at the high end of recklessly cause serious injury.  I agree.

109     Mr Pearson referred me to two cases – Baldwin v The Queen[2] and Valayamkandathil v The Queen[3].  I have read both.

[2][2015] VSCA 299 (‘Baldwin’).

[3][2010] VSCA 260 (‘Valayamkandathil’).

110     It is difficult comparing cases factually as they vary enormously case to case as do all matters in mitigation and personal to an offender.

111     In brief Baldwin did not involve a knife, the plea of guilty was entered at a relatively early stage.

112     In Valayamkandathil, the appellant was 24, without prior criminal record; no history of drug or alcohol abuse (although had been drinking that day), low risk of re-offending, imprisonment likely to be ‘extremely difficult’ for him, and he had employment.

113     The prosecutor, Mr Sprague submitted the only appropriate disposition was a term of imprisonment with a non-parole period.  A combination disposition involving a term of imprisonment and a Community Correction Order, he submitted, would be outside the range of appropriate dispositions.

114     Mr Sprague referred to the offence being serious, involving serious injury and the use of a knife.

115     Mr Sprague submitted general deterrence, specific deterrence and just punishment were relevant considerations.  As I have said, I agree.

116     There was a need for specific deterrence, given your criminal history, including two previous violence matters in 2015 and 2008.  He submitted, while they did not involve serious injury, the 2015 incident involved a violent assault, including the production of a knife (but not use of it).

117     Regarding the 2008 conviction involving your mother, it involved inflicting injury with a knife (a small laceration to her neck).  Mr Sprague submitted that your offending before me was arguably an escalation of that earlier offending.  I agree.

118     While Mr Sprague referred to your history of non-compliance with orders of the Court, I do not regard that as relevant to specific deterrence.  I do, however, consider it has relevance to the submission by Mr Pearson that a combination disposition would be appropriate.  Your compliance, or otherwise, with previous court orders, is a matter I can take into account when assessing that submission.

119     Mr Sprague submitted the need to protect the community from you loomed large because your violence in the past had been against victims known to you and protection of people you were exposed to was of concern.  I agree.

120     Turning to your rehabilitation prospects, whilst Mr Pearson submitted they were not ‘hopeless’, Mr Sprague submitted, in the absence of compelling evidence of you dealing with drug issues, your prospects were guarded, at best.  I agree.

121     Although I do note you have undertaken two courses, to which I have previously referred, which is a good start.  Ultimately, your prospects of rehabilitation will be dependent upon you abstaining from drug use when in the community. 

122     Mr Sprague conceded the injury caused was not at the higher end of serious injury, also accepting the injury was not life-threatening.  I agree and I am aware of that.

123     Mr Sprague submitted the use of the knife was an aggravating feature of your offending.  I agree.  That your assault upon Giammarco was directed towards his head area, however, the victim put his arm up to protect himself and thus sustained the injury to his hand. 

124     Mr Sprague submitted your culpability for the offence was high, as you were pre-armed with the knife and with a history of violence when under the influence of drugs.  I agree.

125     Mr Sprague submitted your plea of guilty was entered at a late stage and that the weight given to that should be moderated given the timing of it.  I agree.

126     Regarding the delay in this matter being concluded, since the date of the offending, Mr Sprague submitted limited weight should be given to delay as it was substantially attributable to the position taken by you, ultimately conceded to be untenable referable to a defence of self-defence.  I agree.

127     Mr Sprague referred to a number of differences between the authorities relied upon by Mr Pearson and your situation/offending.

128     Mr Sprague referred me to DPP v McKay[4], a Crown appeal, although noting, as I do, that the assault and the injury in that case was at a higher level than your offending.  There was an early plea of guilty entered, and at the time of that plea hearing, the offender had undertaken significant drug treatment with evidence given about that before the judge.

[4][2018] VSCA 292 (‘McKay’).

129     The Court in McKay said:

“As this Court has previously said in Ejupi[5]:

Those who would venture forth with a knife anticipating its use to inflict injury, and those who would use knives foreseeably to inflict serious injury, need to be deterred from so doing.

There is no criticism over the judge’s statement that the principle of general deterrence, particularly in relation to the use of the knife, must have primacy in the sentence.  In doing so, the sentencing judge recognised the importance of this sentencing principle.”[6]

[5]Ejupi v The Queen [2014] VSCA 2.

[6]McKay [25].

130     In reply to submissions by Mr Sprague, Mr Pearson urged that there was a need for specific deterrence, there was also the need for community protection however, he urged, would be best achieved by your rehabilitation.

131     He referred again to the two courses completed by you relevant to drug use and urged you were hopeful you would be able to stay off drugs.  If you did, he urged your rehabilitation prospects would be reasonable.  As I had stated throughout your plea hearing, it will be a matter for you whether you abstain from drug use.  If you do, your prospects of rehabilitation are likely to improve,  but as I have said currently guarded optimism regarding those prospects.

132     Mr Pearson distinguished McKay, describing it as a high watermark for recklessly cause serious injury and, in particular, referred to the relevant significant prior matter of McKay, involving a serious knife attack.  I am aware of these differences to your offending.

133     As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this.

134     There is also the need for specific deterrence, given your extensive and relevant criminal history. 

135     I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.  This concerns me until you do abstain from drug use.

136     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

137     Can you stand up please.

138     I sentence you as follows.

139     On Charge 1, you are convicted and sentenced to 3 years’ imprisonment and I direct that you serve a period of 2 years before you are eligible for parole.

140     The prosecution made application for a disposal Order.  That was not opposed by counsel on your behalf and I make the order in the terms sought.

141 Pursuant to s18(4) Sentencing Act1991, I declare you have spent 657 days (I want that checked) in custody by way of pre‑sentence detention up to and including yesterday, 27 June 2019, and I direct that that be entered into the records of the Court.

142 Pursuant to s6AAA Sentencing Act, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to 5 years’ imprisonment and set a non-parole period of 4 years.

143     Any other orders?

144     What about the PSD?

145     MS BARNDEN:  Your Honour we have calculated that it is 656 not including today.

146     HER HONOUR:  If that is what it is, that is what it is. You have gone through that, Mr Pearson. Did you forget what I had said before.

147     MR PEARSON:  We did the plea.

148     HER HONOUR:  I know and that was 655, but I am being told that was wrong.

149     MR PEARSON:  Well, I don’t know Your Honour. I was working on the basis that I checked the 655 days as being correct.

150     HER HONOUR:  Sit down let’s sort it. Everyday counts. What date did he go in.

151     MS BARNDEN:  17

152     HER HONOUR:  You will need calendars for the 2 years, watch the leap years if there are any. Check the days in February or January whatever days a leap year.

153     MR PEARSON:  I say 656, I make it Your Honour, not including today’s date.

154     HER HONOUR:  Its up to and including yesterday being the 27 June 2019. Alright the Crown and you both agree on that.  So, the record will reflect 656 days by way of presentence detention up to and including yesterday which was the 27 June 2019.

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