Director of Public Prosecutions v Nairn-Payne
[2020] VCC 865
•15 June 2020
Not
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-02495
Indictment No: K12284111
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Brett NAIRN-PAYNE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2020 | |
DATE OF SENTENCE: | 15 June 2020 | |
CASE MAY BE CITED AS: | DPP v Nairn-Payne | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 865 | |
REASONS FOR SENTENCE
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Subject: Recklessly causing injury. Knife wound to neck. Recklessly causing injury and recklessly causing serious injury prior convictions
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APPEARANCES: | Solicitors | |
| For the DPP Ms Maguire | OPP | |
| For the Accused Mr J. Jassar Bayside Solicitors | ||
HIS HONOUR:
1 Brett Nairn-Payne, you have pleaded guilty to one charge of recklessly causing injury. That offence is punishable by a 5-year maximum term of imprisonment.
2 You are 30 years of age and you have a short but relevant prior criminal history.
3 This matter was opened to me last Thursday by Ms Maguire, who appeared to prosecute on behalf of the Director of Public Prosecutions. She opened in accordance with a written summary of opening dated 14 May 2020. That opening refers off to various portions of the depositional material, including statements and photographs. Your counsel, Mr Jassar, told me that it was an agreed opening.
4 In those circumstances, I see no need to set out in these reasons the full detail of the sentencing facts. They are in that document which was marked as Exhibit A on the plea.
5 I still should say something as to the facts. Very briefly, you knew your 38-year-old victim, Philip Freebury, from your time together at the Community Care Unit in Frankston. That was from February 2019. By August of that year you had both left the unit and were living in separate boarding houses in Frankston. You still had contact. In mid-August you had asked your victim for a loan and he lent you a small sum of money. Just $70. You agreed to pay it back when you got your next pension. Over the next two weeks you paid him back $32, leaving the grand sum of $38. You offered to give him some drugs and your sunglasses to settle the debt. He declined the drugs but said he would take the sunglasses. You had made the offer, not him. It had not involved him raising it or pressuring you.
6 On 31 August, he agreed to meet you so that you could give him the sunglasses. You sent him a message saying that he could come around now and that you were sick of people trying to stand over you. That was a strange text when regard is had to the texts set out in the materials. There had been no animosity at all. You then sent another text saying you would come over to his place to hand over the glasses. In due course you texted to tell him you had arrived and he came out onto the street.
7 Your victim had no inkling that there would be any assault or unpleasantness. You handed him the sunglasses and then, without any warning at all, you struck him to the side of his neck. You were holding a small flick-knife and that knife inflicted a nasty enough wound. You walked off, leaving your victim trying to control the bleeding from his neck. You walked to your home, which was a dozen minutes away. Your victim rang you up asking why you had stabbed him. You said, “That is what you get for standing over me”.
8 He sought assistance from some of his fellow residents. An ambulance was called. That was at 4.18 pm. You contacted 000 at 4.31 pm and reported that you had been robbed of your phone and sunglasses at knifepoint and had taken the offender’s knife away and used it on him in self-defence. This was of course all totally false. You said the offender had run away. You did not mention the name of the other, or that you knew him or the address where he lived, but said that you did not want the other man to die.
9 Your victim was taken by ambulance to hospital, where he was admitted. He required surgery and there is a statement from an expert, Dr Marr, who has examined the hospital file. She described the structure of the neck and the dangers posed by any penetrative injury in the area where this man was stabbed. More importantly, she describes the injuries. He had a collection of blood under the skin which was getting larger. There was some blood spurting from a small vessel coming off an artery. He had sustained a penetrating injury which had completely severed the left sternocleidomastoid muscle, which is one of the main muscles at the front or side of the neck. That was repaired. Your victim was discharged from hospital on 2 September 2019.
10 You are fortunate indeed not to have more seriously injured this man or worse. You could have sat in the dock of this court on a serious injury charge and had you killed him, as you so easily could have, no doubt you would have been sitting in the dock in the Supreme Court charged with murder. Using a blade as you did, to a person’s neck, is unbelievably dangerous, as that expert report makes abundantly clear.
11 I am, however, not dealing with you for serious injury or conduct endangering life. Recklessly causing injury has been selected here and that is what I will sentence you for.
12 Having made the false 000 call, the police attended and arrested you. You maintained your false account at that point.
13 You made a predominantly no comment interview. You admitted knowing the victim but denied being there on the night. Again, you lied. None of these lies are in any way an aggravating feature.
14 Your phone was seized and a later examination spelt out the lies that you had uttered. You have been in custody since your arrest, a period of 285 days up to but not including the plea date. That total has since risen. The matter settled in the Magistrates' Court at a committal case conference without a committal and you were committed to this court on the charge of recklessly causing injury.
Victim Impact
15 No victim impact statement was filed here but it is very obvious from the materials that this was a frightening and disturbing event. It had the immediate impact of hospitalisation and surgery. Your victim described being surprised, disappointed and angry at your attack. There is no evidence before me of any longstanding physical or psychological issues.
In Mitigation
16 Mr Jassar conducted a plea on your behalf. He had prepared a detailed written outline. He took me to your personal details and background. He filed a report from a consultant psychiatrist, Dr Pandurangi, as well as a large number of other documents from a variety of health and allied health professionals including a GP, a psychologist, a neurologist and two psychiatrists. There were also a number of discharge summaries. He made submissions as to your criminal history and the relative seriousness of this offence. Of how it might be characterised. He made submissions as to your rehabilitative prospects and the weight to be given to the relevant sentencing purposes.
17 In mitigation he relied mainly upon the following:
· Your guilty plea;
· The early stage of the plea;
· The presence of remorse;
· The risk of your deportation and the increase in your custodial burden arising from that possibility;
· An increased burden owing to the COVID-19 virus;
· Your state of mental health at the time, and now, and the application of 4 principles from the case of R v Verdins [2007] VSCA 102 (“Verdins”).
Your counsel conceded that this was serious offending by a man with a relevant criminal history. He argued that it was open to impose a combination type sentence with a prison term equivalent to your existing pre-sentence detention, with immediate release onto a community corrections order.
Prosecution
18 Ms Maguire, who appeared on behalf of the Director of Public Prosecutions, had filed some very detailed written sentencing submissions. They are lengthy and I see no need to set them out in detail. They are marked as Exhibit C. They dealt with matters of sentencing principle and were, in the main, quite uncontroversial. The prosecution challenged the claim of any Verdins type reduction in culpability. They questioned the extent of remorse here and the positive rehabilitative prospects urged upon the court by your counsel. They argued that deterrence was of real significance. So too community protection, punishment and denunciation. The Director challenged the availability of a combination type order and called for a term of imprisonment. The prosecutor placed before the court summaries from some of your past offending.
Background
19 I turn now briefly to your background. It is set out in some detail in your counsel’s written outline, as well as in Dr Pandurangi’s report. I have no reason to doubt what I was told about your family background and I see no need to restate it all. I will provide only a brief thumbnail sketch. You were born 9 August of 1989 and are 30 years of age. You were born in New Zealand. You are not an Australian citizen. You were one of three children to parents who separated when you were young. You had very limited contact with your father. There is the mention of an intellectual disability but the extent of that and the impact of it is not at all clear. You had an aid and a speech therapist so plainly there were issues of some significance. An assessment in 2016 by Ms Amos found, as she put it, that you ‘barely met the criteria for an intellectual disability’, with testing placing you in the range of mild intellectual disability.
20 You moved to Australia when you were 12 and had trouble adjusting. You finished your schooling at a community college for children with learning difficulties. You left school in Year 9 and commenced an apprenticeship as a baker. You did that for about 18 months. Drugs have been a large enough issue over a number of years though not necessarily consistently.
21 There is the suggestion of an ADHD diagnosis and the intellectual disability, and there was a history provided by your mother of your having been sexually abused when 15 years of age at a railway station. I am not sure what to make of that account, as you claim to have been a victim of inappropriate touching at the hands of the victim that you stabbed back in 2011. You claim that you stabbed him owing to his sexual touching of you and that claim was plainly false when regard is had to the summary of that matter. Nonetheless, I note that you had some involvement with South Eastern Centre Against Sexual Assault, so it may well be that you were sexually assaulted as a 15-year-old, as your mother describes.
22 Independent living has been a real challenge for you and hence the admission to the Community Care Unit.
23 Dr Pandurangi has had access to much collateral information, including a very detailed history from your mother. I have not been shown that lengthy document but your mother is a psychiatric nurse and would presumably be very much awake to the details of your medical, psychiatric and psychological treatment. She is a keen supporter and one who has obviously been involved in your attendances upon medical practitioners and a psychologist, and I have no reason to think that she would deliberately misrepresent your medical or social history.
24 Exhibit 3 is a large range of reports and discharge summaries. Dr Pandurangi did not have access to the materials in Exhibit 3, which is totally unsatisfactory.
25 It is plain enough that you have had some serious enough mental health issues over the years but far less easy to know exactly what they have been or are now. There have been a number of hospitalisations. Various diagnoses or provisional diagnoses or opinions are listed in the various materials. Schizophrenia, psychotic illness, anxiety, depression, Attention Deficit Hyperactive Disorder, Post-Traumatic Stress Disorder, anger management issues, emotionally unstable personality disorder, drug induced psychosis, epilepsy or pseudo seizures, anti-social personality disorder and borderline personality disorder are just some of the many conditions which are listed. The Justice Health materials referred to are not clear as to what exactly your true issues have been. The recently filed reports from the GP, psychiatrists, neurologist and psychologist fill in some of the blanks, but not in a particularly satisfactory way. Your GP, Dr Knobel, mentioned in a 2016 letter that you suffered from schizophrenia, anxiety, depression and significant epilepsy as well as anger management issues.
26 Dr Pandurangi struggles to provide any firm diagnosis and does not necessarily conclude that you have schizophrenia. He believes your symptoms, including your description of hearing voices, is not typical of someone suffering from an enduring mental illness such as schizophrenia. He does not believe you were psychotic on the day of the offence.
27 It seems plain enough to me though that you must have at some point been diagnosed with schizophrenia. You have also been diagnosed with epilepsy, which is described as poorly controlled in some of the documents, though I note that a neurologist (Dr Seneviratne) in June 2016 was perhaps re-considering the explanation for those seizures and sending you for further testing. You are medicated in a manner consistent with having schizophrenia and epilepsy.
28 You clearly present as distressed. Dr Pandurangi thinks you do suffer from Post-Traumatic Stress Disorder. Do you have a personality disorder in addition to any of these other issues? It is terribly difficult for me to know. It is plain though that you have not travelled at all well over many years, including in the relevant time frame. It should not be forgotten that you met your victim earlier in this same year, whilst you were both in a community care facility. Nor are you travelling well now in custody. That much is very plain.
29 It is not at all easy to see any realistic connection between any of your many conditions and the attack upon your victim. That is what it was, an attack, and your conduct after the event was quite calculated and dishonest. You were not delusional and I do not accept your factual account given to Dr Pandurangi. It ignores your statements at the scene, and in the 000 call, and the texts and the phone call made to your victim. Perhaps you felt a bit unhappy having to pay back money but you went to see him, gave him the sunglasses and then stabbed him. There is, on any view of it though, an oddness to the level of violence and your explanation for it offered up to him on the phone on the day. I will come back to discuss this when dealing with the Verdins submissions.
30
You have a short but clearly relevant prior criminal history. Most recently assault with a weapon. That was the brandishing of a knife to your mother in the family home. Prior to that a prison term for recklessly causing serious injury and theft, where a knife was used to stab someone, and prior to that appearances for arson, car theft and recklessly causing injury. The recklessly causing injury is summarised as part of Exhibit B. You have breached a past community corrections order imposed on appeal to this court. It is not a long history but is disturbing enough. The attack upon the 2011 victim is actually strikingly similar; a debt owed by you and a serious stabbing incident with internal damage to the diaphragm. As I have said, you have given a false account of that stabbing to
Ms Amos and Dr Pandurangi, saying that it was connected to some inappropriate touching of you by that victim. (See the report of Amos. See also report of Dr Pandurangi at paragraph 40). It had nothing at all to do with a sexual touching, as the summary makes very clear. It related to a debt.
31 I am dealing with you for a very similar sort of criminal act, albeit with a different level of injury.
32 In custody, you have had no visitors for a decent period. You have been held in protection, which you do not find at all easy owing to your past experiences as a 15-year-old, and I take that into account.
33 Your counsel argues that you face the risk of deportation, which will produce an increase in your custodial burden.I turn then to consider the matters raised on your behalf.
Guilty plea
34 I turn firstly to your plea of guilty. You have pleaded guilty and at the earliest stage. I must reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. You have taken responsibility for your offending. Witnesses have been spared the experience of coming to court. Coming to court can be a distressing experience for a victim of a violent assault. Your victim has been spared that experience. The community has been saved the time, cost and effort associated with a contested hearing either in the lower court or up in this court. I take those matters into account in mitigation.
Remorse
35 Your counsel argues that you have some genuine remorse. There is none in your 000 call, your remarks made to the arresting member or your interview with the police. Nor seemingly in your recent discussion with Dr Pandurangi, where you plainly did not give a full account of what actually happened. There was actually a debt owed by you and you were not being stood over. The fact that you have given that account is of course not a matter of aggravation, but are you actually remorseful?
36 A guilty plea is often, but not always, indicative of some remorse. Your guilty plea was entered at the earliest opportunity and nothing I say about the issue of remorse detracts from the discount you get for that early guilty plea. They are quite separate issues.
37 Your counsel suggested you had mentioned your feelings of remorse to him. Well, I am not a party to those conversations and he chose not to call you on that issue. This in the face of the Crown raising serious issues as to the existence of remorse in their written submissions which had already been filed. Your counsel conceded that there was no other evidence of any remorse in the depositions.
38 As to your guilty plea and whether it conveys an aspect of remorse, it was an overwhelming case against you. As I have said, the strength of the case in no way detracts from the mitigatory effect of your guilty plea. It just raises the difficulties of inferring remorse from the fact of your plea.
39 I am simply not satisfied on the balance of probabilities that you have any deep remorse here. I do not know why you do not. Perhaps you still cling on to the factual misrepresentation of this event. I just do not know. I am prepared to find some very limited remorse bound up in your early guilty plea, but beyond that I can see none.
Rehabilitation
40 Your counsel argues that you have positive prospects of rehabilitation conditional upon a number of things taking place including a return to live at home and with structured treatment and support put in place. I take a less optimistic view. However those prospects may be described, it is possible they may well take shape in another country.
41 You have again demonstrated your preparedness to commit a serious criminal offence with a knife. It is worrying. You have a relevant criminal history. I want to make it plain that you have already been dealt with for those past offences and do not fall to be sentenced a second time for those matters by me. You have received and served those past sentences, but those prior matters inform the need to deter you and to protect the community from you. They touch upon your prospects of rehabilitation, risk of re-offence and to some extent, your moral culpability. It is not greatly comforting that you look back on the 2011 recklessly causing serious injury and entirely change the character and context of the attack. In a way you almost justify it. We can see the start of the same approach in relation to this crime that I am dealing with; a claim of being the wronged party when in truth your attack was entirely unprovoked.
42 It is likely that the time you have already spent in custody, as well as the time you will spend in custody in the future, will serve to deter you at least to a degree. Whatever you may say, it is plain from the materials that you have had long term issues with illicit drugs. You are not a reliable historian on that and other issues. You plainly have had long-term mental health problems. You have an intellectual disability. These things each have a role to play in your future prospects. They significantly cloud those prospects. I can only be quite guarded. You were no silly teenager; you were a mature man engaging in serious criminal behaviour. You do have ongoing family support and a home available to you upon your ultimate release. That is a positive, but it is equally plain that living at home has not been without issue. I note that there was an assault upon your mother in the family home in 2016. I note in the report of Ms Amos the description of your complex needs and the need at that stage for alternative supported accommodation to avoid any repetition of violent outbursts against your mother in the family home. I note that you were asked to leave the Community Care Unit owing to an altercation of some description. I note the reference to anger management issues in the report from Dr Knobel.
43 Your counsel argues that with the exception of the assault upon your mother, each occasion where you have offended has taken place when you were not living with your family. That appears to be true. I was told that you complied with your parole when parole was granted to you, so not everything is doom and gloom. I am certainly not going to write you off, but I have to be realistic. You have a large number of issues.
44 I am prepared to find that you have reasonable prospects of rehabilitation in the future, but I really cannot put it higher than that. It is hard not to be guarded here. If you continue to abuse drugs you will have very poor prospects indeed. There is obviously a risk of future violent offending.
Deportation
45 I turn then to the issue of deportation. You are not an Australian citizen and face the risk of deportation. Your counsel’s submissions were silent on this score but he made oral submissions as to an increased custodial burden. The prosecution had referred to the relevant principles and your counsel adopted them.
46 A sentence of 12 months or more will bring into play the automatic cancellation provisions of the Migration Act 1958. Indeed, the Crown argued that those provisions would be brought into play by virtue of the cumulative effect of the 285 days plus what you have served previously when undergoing the other prison sentence imposed back in 2011. Maybe that is so, but I do not need to decide that point. It is academic. That is because it is as plain as day that a sentence of greater than 12 months is just unavoidable here. That outcome will produce the cancellation of your visa.
47 You would then have rights under the Migration Act to request a review of any such determination and, subject to who reconsiders the decision, you would potentially then have a further right to review that decision, if necessary, in a tribunal.
48 I will work then on the assumption that you will have your visa cancelled automatically, but in terms of those review powers I have no idea how they will play out. It would involve pure speculation on my part. I note the Sentencing Advisory Council paper ‘Deportation and Sentencing’ (from November 2019) which discloses that a very decent proportion of those who have their visas cancelled automatically have the decision overturned (see paragraph 24).
49 Where will this all end up for you? Who knows. You will not and that will be disturbing as you serve this sentence.
50 If your visa is cancelled, as one would expect it will be, you would then be looking at movement from prison - not back out into the community but to an immigration detention facility with the spectre of deportation at the end of that process. So there might be a hiatus and I take that into account.
51 I do take into account cases dealing with the relevance of the risk of deportation including the Guden v The Queen [2010] VSCA 196 line of cases considered in Allouch v The Queen [2018] VSCA 244 and more recently discussed in the case of Loftus v The Queen [2019] VSCA 24.
52 I accept that your custodial burden is increased owing to your knowledge of the risk of deportation. It will make your life very uncertain as you serve out this sentence. Life is not easy for you at the best of times. It will not be easy to have that uncertainty in your mind as to how this will all play out. This will not be some minor matter in your mind. You are not someone who has flashed into the country, offended, and who now faces deportation from a country that they have no true link to. People in that setting are often enough looking forward to deportation and never had any realistic prospect of settling here at all. You are quite different. You came to this country as a 12-year-old child, well over half your life ago. Your family and friends are in this country. You are settled here. The prospects of being disconnected from this country will be worrying in the extreme.
53 I do not believe I can make any judgment at all as to the likelihood of actual deportation occurring here and hence the loss of opportunity to reside permanently in this country. It is pure guesswork and I am not able to guess or speculate on that score. Nor does your counsel urge me to. He relies only on the increased custodial burden and I take that into account, as I hope I have made clear.
COVID-19
54 I accept that the COVID-19 virus and the response to it by those running the prisons will increase your burden to some extent. It already has. It produces worry and stress. It is impossible to know precisely how it will impact upon you into the future. There are some lockdowns but they are not in place across all prisons, so I really cannot assume they will apply to you. However, visits have been suspended and so too some jobs, courses and programs. I cannot know how long those things will persist and of course any wider disruption across the prison would likely be the subject of some consideration for emergency management days. Though things have been looking up in the general community, with some relaxation of restrictions coming into effect, there are no prospects in the short term of any in-person visits for any prisoner. That is a tough setting.
55 I accept that there is an increased custodial burden in this case. I take it into account in your favour.
Verdins
56 Your counsel argues that 4 principles from the case of Verdins have application here. The 1st, 3rd, 5th and 6th limbs from that case. The written and oral submissions were a bit hard to follow. I have a large amount of material speaking of various diagnoses made. Mr Jassar plucked out of the history a range of past diagnoses and relies upon some of them. Having tendered the report of
Dr Pandurangi, he did not rely on portions of that report, as the author had not been provided with a number of source documents that had since come to light. Mr Jassar was submitting that some of Dr Pandurangi’s opinions were made from a position of disadvantage yet there was reliance on other portions of the same report.
57 It is actually all a bit of a dog’s breakfast, which is not that unusual in relation to Verdins submissions made to this court.
58 What is the actual condition in existence, either at the time of offending or now, which is said to enliven these principles? I asked your counsel that very question and he took me to a portion of Dr Pandurangi’s report mentioning the lack of consequential thinking and impulsivity. That is not a condition. I pressed your counsel and he cited the schizophrenia as well as a dissociative disorder, depression, anxiety and Post-Traumatic Stress Disorder. He threw in the intellectual disability. Dr Pandurangi actually – can you still hear us,
Mr Nairn-Payne, or not?
59 OFFENDER: Yeah. Nah, just my anxiety and my ADD's playing up so I'm walking around.
60 HIS HONOUR: That’s all right. That's fine, you can keep walking around.
Dr Pandurangi actually doubts the presence now of schizophrenia and he has seen you most recently. He recognises that he has not had the advantage of some of the other materials. Nonetheless, the schizophrenia diagnosis was mentioned in the materials he did have to hand and he is obviously not convinced of that present diagnosis. He thought you likely had some form of personality disorder and Post-Traumatic Stress Disorder.
61 Your counsel says that there should be some reduction in your moral culpability as well as some reduction in the weight given to general deterrence. Further, a finding of an increased custodial burden and the likelihood of a serious risk of a significant adverse deterioration in your mental state.
62 Your counsel told me that Dr Pandurangi did not draw any causal link between any mental illness and the offence. Though well satisfied that you have had all sorts of mental health issues over the course of your life my provisional view, as I sat hearing the plea, was that there was no realistic connection between any such diagnosed mental health conditions and this actual offence. Well, provisional views can change. That is why they are provisional.
63 I wanted to reconsider the matter. I have read through all the expert materials and the submissions which have been made on your behalf, as well as those made by the prosecution. I do not want to get bogged down in any detailed analysis of the medical and psychiatric materials. I accept that you have a low level of functioning. You have a mild intellectual disability. ‘Mild’ when applied to describe an intellectual disability is something of a term of art. It does not mean 'minor' or 'insignificant' as it might mean if used to describe the common cold. There is nothing insignificant or minor about having a mild intellectual disability. It implies a decent enough raft of deficits in functioning and capacity, though there is no level of detail as to your actual deficits and strengths. Your affairs are administered by the State Trustees.
64 I am prepared to accept that you have been diagnosed as suffering from schizophrenia. You have a raft of other issues - some physical, such as the epilepsy or seizure disorder - some psychological, including possible personality disorders. Some which would potentially attract Verdins considerations, some which plainly would not.
65 How then in such a setting can I reach a finding of any realistic connection when there are potentially so many contributing issues, including drug use. Perhaps it is to an extent speculative, but I am actually prepared to find some realistic connection here. You plainly were not travelling well at the time of these events. You were not in optimum mental health and also had the intellectual disability. That is with you always. I do not want to get too caught up in the tags or diagnostic labels. To treat you as having optimum capacity to exercise appropriate judgment and to make calm and rational choices seems to me to be slightly unrealistic in the face of the expert materials placed before me. The fact is, there is also an oddness to the offence itself. The stabbing came out of the blue for your victim. It shocked him. It was accompanied by you having at least some feeling that you were being oppressed or stood over. You expressed that on the day and that feeling was not founded on any reality.
66 So what weight do I give to these matters? To what extent is your moral culpability reduced?
67 It should not be forgotten that you had resumed the use of illicit drugs.
Dr Pandurangi refers to the drug use. Drug use disinhibits. It impedes consequential thinking and appropriate judgement. Dr Pandurangi says you were struggling to cope with various stressors. I am certainly not satisfied on the balance of probabilities that you were hearing voices telling you to stab this man. If you were, why the dishonesty when dealing with the police and Dr Pandurangi? Dr Pandurangi does not believe you were psychotic. You had the clarity of thought in your 000 call to create a totally false account, placing your victim totally at fault and making you the innocent party. That was quite deliberate and reasoned conduct. That was not delusional in any way. You were shoring up your own position. You knew that you were in big trouble. You had the clarity to be texting earlier in the way that you had been, offering up alternative payment for the debt that you had acknowledged.
68 No doubt, as is often enough the position, there were all sorts of contributing factors that may have given rise to impulsiveness and lack of consequential thinking - some which may attract Verdins reasoning, some which would not. Was it drug use, a personality disorder, intellectual disability, schizophrenia or something else altogether? It is impossible to dissect them all and plot their respective contributions, and I suppose in such a setting I could easily adopt the prosecution submission and find no reduction in your culpability. I do not believe that that is just in this setting.
69 Ultimately then, I have resolved this question in your favour. I am prepared to find that there is some modest reduction in your moral culpability for the reasons I have announced.
70 I do not believe that there is any basis to significantly moderate the weight given to general deterrence, much less to treat it as a matter of no importance at all, as your counsel suggested in his written submission. He retreated from that extravagant submission in the course of the plea and submitted that there could at least be some moderation. You have a mild intellectual disability. You likely do have schizophrenia and epilepsy. You were, however, plainly able to reason as to the wrongfulness of your conduct. You could see the need to misrepresent what you had done in the 000 call and to Dr Pandurangi, as you knew that what you had done was so wrong. I will make only a modest allowance here, but in doing so I recognise that by virtue of these various conditions spoken of in the materials you are not an appropriate vehicle for the full weight to be given to general deterrence. It is far from eliminated. Indeed, it is still an important purpose of sentencing here, for obvious reasons, given the carriage and use of a knife in a public place.
71 I am prepared to accept that prison will be harder for you than for someone without these various conditions and that there is a serious enough risk of significant adverse impact upon your mental health. So in summary, I give some weight to the 1st, 3rd, 5th and 6th limbs.
72 Though I take these matters into account in a mitigatory fashion, these conditions relied upon in this way by your counsel also have a role to play in the judgments I must make as to your future prospects and your future risk of offending. You have laboured for many years under a variety of serious mental health issues. You have an intellectual disability which will not alter. Though they produce some moderation in sentence in a Verdins fashion, they necessarily are relevant to my assessment of your rehabilitative prospects as well as the future risk that you pose to the community.
General remarks
73 I now make some general remarks.
74 I have to take into account the nature and gravity of your offence.
75 Recklessly causing injury is a relatively rare offence to be heard in this court. Often enough it is as a result of a verdict of acquittal in relation to charges above that charge on the indictment or by way of negotiation in the face of a trial indictment with more serious charges committed to this court.
76 Your instance of recklessly causing injury was brought straight to this court for a reason. That was no doubt owing to its seriousness and your criminal history.
77 The mechanism was serious and quite unusual for this crime. It was a deliberate act involving the use of a knife. How an unprovoked attack with a knife equates to recklessness is not something that was ever explained to me, but that is not important. It is a pretty forgiving indictment charge actually, but I must sentence you for that crime and not a more serious one.
78 Recklessness deals with foreseeability of probable consequences. The level of foreseeability of injury is relevant to the consideration of the gravity of a crime such as this. You were not using an object adapted as a weapon - for instance, a bottle that may or may not break and then perhaps inflict cuts. You were not using your fist or pushing or shoving someone or kicking them to the body. You were using a knife. One you had to hand. You did not cause serious injury in the way that that is defined under the relevant provisions. That was a matter of pure luck. Serious injury is defined as an injury that endangers life or is substantial and protracted.
79 You foresaw injury and how could you not, given the mechanism? Injury covers a range of outcomes. "Injury" is defined as a physical injury or harm to mental health, whether temporary or permanent. It could embrace a bruise.
80 You foresaw injury flowing from the mechanism you employed, which was the use of a knife to your victim’s neck. The injury which was caused was hardly a minor one. It was not a bruise. It needed emergency treatment. Your victim was hospitalised and operated upon. He was in hospital for a couple of days. As I say, it was a matter of pure luck that it was not far more serious for him, and hence for you.
81 You have the relevant criminal history. You used a knife in an unprovoked and serious attack upon a victim in 2011 in the not dissimilar circumstances of a debt being owed by you. That man was stabbed in the chest and you caused serious injury on that occasion. You were gaoled and one would have hoped that might have taught you a lesson never to carry a knife again or to use a knife on a person ever again, yet here you were years later using a knife in another unprovoked attack.
82 This injury that I am dealing with was caused in an extraordinary and dangerous fashion in a public place. You used a knife to attack a person who had no notice of any attack. No inkling. It came totally out of the blue for him. You asked him to attend, then said you would attend upon him. He came out, and having transacted the business which brought you there, you attacked him. He was completely taken by surprise and hence vulnerable and defenceless.
83 There was some discussion and debate in the course of the plea as to how the crime might be labelled. Often enough counsel in the course of a plea try to apply an adjective to describe an offence. High, low, medium. Much energy can be expended trying to fit the offence into a category. It is mostly wasted effort. Where does the low range end? Where does medium range start and end?
84 Your counsel was not suggesting it was a low-level example of the offence but submitted that this offence fell in the mid-range. He drew some comfort from the prosecutor’s submissions as to the level of offence seriousness (see paragraph 2).
85 This never-ending quest to fit a crime into a category of offence seriousness has been criticised in the Court of Appeal (see Weybury [2018] VSCA 120). It distracts from what I must do, and that is to consider what you actually did.
86 Whether applying an adjective or placing the offence on the spectrum of offence seriousness, I do have to make an assessment of the nature and gravity of the offence.
87 Your counsel at one point submitted in all seriousness that there would be no difference between a knife wielded and applied to the backside or arm as compared to one wielded and applied to the neck. I was not greatly assisted by that submission. It was nonsense.
88 Anyway, that was not what you did. What I must do is look at your crime. He took me to what he said were high level examples of this crime and pointed to the use of firearms or offences targeting police.
89 I am dealing with the use of a knife at close quarters. It was not a sustained attack. It was a single strike to the neck but it was quitea startling and entirely unprovoked. It occurred in a public place. An injury embraced by the crime of recklessly causing injury will normally not have a prolonged physical impact or it would likely be substantial and protracted and hence be classified as a serious injury. This injury required surgery and a hospital stay, though there is no other evidence of impact before me.
90 In all the circumstances, I judge this to be a relatively serious example of this offence.
91 I take into account, as I must, current sentencing practices. It is not a single controlling factor. I have looked at the Sentencing Advisory Council's sentencing snapshot for the crime of recklessly causing injury (see Snapshot 241 of 2020).
92 I have also looked at the cases in the sentencing manual, to which I was referred by Mr Jassar. No amount of looking at statistics or other sentencing outcomes in other cases will provide the answer to the correct exercise of my sentencing discretion in your case. Each case is very different. So too is every offender. There are differing features of aggravation and mitigation. Nor is there such a thing as a single correct sentence in this case or any other.
93 I must pass an appropriate sentence upon you for your crime.
94 I must pay regard to the maximum sentence and to the impact of the crime.
95 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, I believe they are reasonable, but those prospects must surrender some ground to other purposes in a case such as this.
96 Punishment is an important purpose of sentencing in this sort of case. Punishment must be just and proportionate. Your past offending does not aggravate the objective gravity of this crime.
97 Denunciation of your crime is also important. I do denounce it. This was serious criminal conduct.
98 I must consider the need for specific deterrence - that is, the need to dissuade or deter you from committing crimes in the future. That is obviously an important purpose here. So too is community protection. This was serious violence committed in a public place with the use of a weapon.
99 At one point your counsel submitted that community protection was of no consequence at all and that I should have no regard to it, as you would likely have your visa cancelled and hence would not be a risk to the Victorian community. He said I was only to be concerned as to the protection of the Victorian community. No other community was of any concern.
100 I totally reject that submission. It is wrong on so many levels and really should not have been made. You are in this country now. You will be serving the sentence which I will soon impose in this country. It is far from certain that you will wind up in another country. You may well be released in the future into this community. That is enough to despatch the submission.
101 Quite aside from that, the suggestion that a move interstate or overseas removes community protection as a sentencing purpose would be a startling proposition and I reject it.
102 You have not been deterred by sentences imposed in relation to past violence offences, including one which caused serious injury in the past. You must get it into your head not to carry or use a weapon and not to be violent. I must protect the community from you. I must strongly deter you from offending ever again. Each are important purposes of sentencing in this case.
103 Though there is some sensible moderation, general deterrence is also plainly still a significant enough purpose of sentencing in a case such as this - one involving senseless violence with the use of a knife in a public place. The carriage of a weapon ups the ante in a sizeable fashion, as this case amply demonstrates. The message must be sent from the courts that people must not carry and use knives. They are dangerous and convert what might be a minor scuffle or insignificant event, with a bruise or two, into often enough, a very serious event indeed.
104 I am well familiar with the decision of Boulton v The Queen [2014] VSCA 342 cited by your counsel. That case does not stand for the proposition that every person for every crime should be placed onto a community corrections order. Prison is always a disposition of last resort. If a lesser disposition can achieve all the purposes of sentencing I would be duty bound to select it above one involving confinement. That is the law.
105 Your offending was serious and can be met with only one response. Prison. That last resort is clearly reached here and it is not possible to deal with you with a standalone community corrections order. Nor does your counsel suggest that that outcome is open.
106 Your counsel concedes that prison is warranted but argues for a combination sentence with an immediate release. He points to some of the advantages of such an order. The fact that there may be more ability to impose structure rather than make provisions for the possibility of parole release with potentially little by way of support or structure and greater reliance upon your mother setting those things in place, if you are released.
107 One can always see some advantages in a community corrections order. It is not my task to select that disposition as my end point and then somehow find my way to it artificially. I have to pass an appropriate sentence in your case.
108 Plainly, you must be imprisoned. You had already served 285 days up to the day of the plea. If that period in combination with a suitably conditioned community corrections order achieved all the purposes of sentencing in this case then I would be required to impose such an outcome.
109 That is because I can only impose a period of imprisonment no greater than that which is necessary to achieve the purposes of sentencing.
110 Plainly here it must exceed 12 months and that brings with it the near certainty of visa cancellation.
111 How exactly a combination type order is practical or realistic in the face of the likely automatic cancellation of your visa was never quite fleshed out by your counsel on the plea.
112 Ultimately though, that it not the reason why I do not believe I can impose a combination type sentence.
113 I am simply not persuaded that a combination order is actually open in this case in the sound exercise of my sentencing discretion. That has nothing to do with the practical difficulties posed by the likely cancellation of your visa.
114 It is my view that a combination type order would not pay adequate weight to the various purposes of sentencing including denunciation, specific and general deterrence, community protection and punishment. It would not achieve the purposes of sentencing.
115 I must send you to prison, and for a sizeable period, and that is owing to the serious nature of the crime you have chosen to commit.
116 Plainly, the sentence must be of a dimension requiring the fixing of a non-parole period.
117 I can make no assumptions as to whether or not you will be released on parole. I am not allowed to even speculate on that point and must assume you will serve every day of the head sentence. The Adult Parole Board will make the decision as to whether you can be released on parole. It will be between you and them and has nothing to do with me.
Section 78 Disposal order
118 There is an ancillary order that I need to make – a disposal order. I will just sign that. Application is made for a disposal order under the provisions of s.78 of the Confiscations Act. There is no issue taken with the making of this order. I have signed that formal order and I am satisfied the preconditions for the making of the order are made out. I order, pursuant to those provisions, the forfeiture to the State of the property referred to in the schedule and I direct that it be handled in the manner contemplated by the signed order. What is the pre-sentence detention?
119 MS MAGUIRE: Your Honour, it is 290 days.
120 HIS HONOUR: Is that counting today or - - -
121 MS MAGUIRE: Not including today, Your Honour, no.
122 MR JASSAR: I agree with that, sir.
123 HIS HONOUR: How's it 290? Isn't it 289? It was 285 as of – not including the plea date.
124 MS MAGUIRE: Yes, Your Honour. My apologies, I just made an error. I've just rechecked it, it does – it's 289 not including today.
125 HIS HONOUR: Two eighty-nine days, yes. All right. Well, I'm sorry I've taken so long to get to this point. I'll now pass sentence upon you, Mr Nairn-Payne.
Sentence
126 On the charge of recklessly causing injury, I convict and sentence you to 30 months or 2 ½ years’ imprisonment.
Non-parole period
127 I fix a period of 20 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
128 You have already served 289 days of this sentence by way of pre-sentence detention and that s.18 declaration is to be entered into the records of the court.
Section 6AAA
129 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence by a jury I would have convicted and sentenced you to 3 years and 10 months imprisonment. I would have fixed a non-parole period of 35 months. That statement is to be entered into the records of the court. Are there any other matters that I need to deal with?
130 COUNSEL: No, sir.
131 HIS HONOUR: No? All right. Well, you'll be in contact in due course with your client, Mr Jassar, presumably? You have to organise some sort of link for that presumably?
132 MR JASSAR: Yes I do, sir.
133 HIS HONOUR: Yes, all right. Okay, well thank you.
134 MR JASSAR: The court pleases.
135 HIS HONOUR: Yes, I'll disconnect. So, Mr Nairn-Payne, Mr Jassar will be in contact with you to discuss this outcome in due course, all right? I'll disconnect the link now. Thank you.
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