Director of Public Prosecutions v Nugent
[2014] VCC 32
•29 January 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01515
D10664580
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE LUKE NUGENT |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2014 | |
DATE OF SENTENCE: | 29 January 2014 | |
CASE MAY BE CITED AS: | DPP v Nugent | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 32 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – causing serious injury recklessly
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v Tasker (2003) 7 VR 128; R v Mills [1998] 4 VR 235; R v Verdins [2007] VSCA 102; Azzopardi v R [2011] VSCA 372.
Sentence: 26 months imprisonment with 15 months imprisonment to be served
before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) | Mr P Triandos | Solicitor for Office Public Prosecutions |
| For the Accused | Mr B Johnson | Balmer & Associates |
HIS HONOUR:
1 Kane Luke Nugent, you have pleaded guilty to the charge that you at St Albans in Victoria on 29 August 2012 without lawful excuse recklessly caused injury to Steven Desic (“Desic”).
2 The charge is contrary to s17 of the Crimes Act 1958 and carries a maximum penalty of 15 years' imprisonment.
3 The prosecution has provided a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit[1] and has been accepted by you and your counsel as an appropriate representation of the offending. In particular, it is agreed:
[1]See Exhibit 1
(a)You and Mr Ashley Calleja (“Calleja”) were at the St Albans Football Club on the evening of 29 August 2012. You told police that you were wearing a “bum bag” and that inside such bag was a Swiss army style knife. Other witnesses say that it was a kitchen knife.[2]
[2]See Deps 71, 77
(b)Desic was part of a group of around one hundred people attending the St Albans Football Club for a wake of a young man who had suicided. Also attending the wake was a friend of Desic, Mr Matthew Whiteside (“Whiteside”) who was known to you.
(c)Whiteside owed you and your mother some money as a result of some damage that Whiteside had caused to your mother’s car.
(d)At approximately 7.30pm on 29 August 2012, you were outside in the smoking area of the football club and after noticing Whiteside in that area, you gestured to him to come over, after which a discussion about the outstanding debt quickly escalated into an argument. Whiteside informed you that he was in some present financial difficulty and that in any event it was inappropriate to have the conversation at the wake. Shortly after you and Whiteside began arguing, Desic approached you and Whiteside and positioned himself between both of you and also suggested to you that it was inappropriate for such discussion to be occurring at the wake.
(e)Prior to any physical altercation occurring between you and Desic, you produced the knife holding it in your right hand at about hip height with the blade pointing slightly up, after which you and Desic exchanged further heated words.
(f)At an early point in the altercation, you lunged at Desic with the knife, after which Desic responded by attempting to punch you. You moved away from Desic who followed you, during which time you swung your right hand containing the knife towards Desic a number of times. You and Desic briefly struggled as you moved along the footpath and you both fell to the ground.
(g)Although it is unclear precisely when a stab wound occurred to the groin of Desic, it was inflicted during the altercation and before you and Desic fell to the ground.
(h)When you stood up, you were still armed with the knife and Desic moved back towards the smoking area during which time you followed him. At this point, Desic noticed that he was bleeding from the groin and grabbed his groin area with his hand, after which you ran from the scene.
(i)Two off duty nurses who were present gave first aid to Desic before an ambulance arrived after which Desic was conveyed to The Royal Melbourne Hospital and treated for a severed femoral artery.
(j)You were arrested on 30 August 2012 and interviewed and made full admissions to stabbing Desic. You stated at that time, that you produced the knife (which you described as a pocket knife) only when confronted by Desic. You were unable to tell the police where the knife was now located.
4 You were committed following a contested committal hearing on 8 August 2013 on a number of charges. On 6 September 2013 at a directions hearing, you were partly arraigned on this indictment and pleaded guilty to this offence.
5 You were charged on summons on 27 February 2013 and remanded in custody on 21 March 2013. You were granted bail on 18 April 2013 but failed to appear at your committal hearing on 6 June 2013 and bail was revoked with a warrant being issued. You were arrested on 4 July 2013 on unrelated matters and have remained in custody since that date. The Court was informed that you had been in custody for a period of 229 days up to and including 19 January 2014.
Criminal record of the accused
6 The prosecution tendered a document setting out your criminal record and I was informed that you accepted that such record is accurate.
7 I note that on 19 July 2007, at the Sunshine Children’s Court you were found guilty of recklessly causing injury together with theft offences. At that time, with no conviction being entered, the matter was adjourned for 12 months and you were placed on a good behaviour bond. I was also informed by your counsel that on 2 February 2009, you were also found guilty in a Children’s Court of the offence of affray and were placed on a good behaviour bond.
8 Other than these two offences pertaining to violence, previous offences have involved a number of motor vehicle offences, including using an unregistered motor vehicle, careless driving and unlicensed driving. Furthermore, more recent offences have included theft and burglary.
The plea
9 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a)Report from Dr Anthony Cidoni who assessed you on 6 December 2013[3]
(b)Sentencing snapshot documentation in relation to causing serious injury recklessly.[4]
(c)DVD footage of the incident[5]
[3]See report dated 6 December 2013 – Exhibit A
[4]See Exhibit B
[5]See Exhibit C
10 On the basis of the report of Dr Cidoni and the submissions made by your counsel, I set out the following details in relation to your personal circumstances, your education and vocational background and your medical and substance use history.
Personal circumstances
11 You are presently 22 years of age and were 21 years old at the time of the offence. You are an only child raised in an environment where your father was violent both to your mother and you. Your father died of bowel cancer relatively recently and prior to being incarcerated you have lived with your mother who is a school teacher and who has attended Court to give you support.
12 You attended mainstream education to about Year 7 and thereafter attended school in Sunshine to help with learning difficulties. Although you were never formally diagnosed with a learning disorder, you were diagnosed with Attention Deficit Disorder in primary school and treated with dexamphetamine from Year 4 to Year 7.
13 You left any type of education at the age of 14 or 15 and effectively had the literacy of a Year 7 student and have continued to have difficulties with reading and writing skills.
14 On leaving school, you have had various work as a roofing and floor tiler and of more recent times have been employed in a motor cycle shop performing ad hoc mechanical duties.
15 I was informed by counsel that since being in prison, you have become involved in various vocational courses.
Substance abuse history
16 I note that you were found guilty of using cannabis back in April 2011 and according to the history given to Dr Cidoni you commenced to use methylamphetamine (“ice”) from about the age of 18, up to 1 gram every few days, and such habit continued up to several months prior to your present incarceration. You told Dr Cidoni that the amphetamines calm you down, which he notes is a “noted affect” in sufferers of Attention Deficit Disorder. You also informed Dr Cidoni that you did not use any other substances and denied any use of excessive alcohol.
17 Although you were born with one kidney, this has not led to any problems with kidney function and again, although you previously had a heart murmur this is now resolved. You denied any other medical problems, nor were you on any particular medication.
18 You described a history of mood swings in the past but more consistent depression since you have been in custody, with initial insomnia, sleeping approximately five to six hours per night, reduced energy, variable appetite and suicidal ideation that you hate your life and the situation that you were in (although you denied any specific suicide plans).
19 You also described a history of anxiety in the past, feeling on edge with increased respiratory rate particular in social situations with fear of being harmed, feeling uncomfortable and feeling like you have to escape.
Past forensic history
20 Dr Cidoni noted that you have no history of any prior violent offending and although you had been imprisoned in 2011, that was for theft-related offences.
21 You described to Dr Cidoni that you regretted the offending, that Whiteside was a friend of yours and it was by chance that you ran into him at the hotel. Whiteside was a “supporter” of the Rebels Motor Cycle Club and according to you, Desic was a “patched member” of such motor cycle club and you felt intimidated and frightened when he intervened.
The opinion of Dr Cidoni
22 Dr Cidoni was of the opinion that you had suffered from Attention Deficit Hyperactivity Disorder and that you suffered from methamphetamine abuse which he viewed, at least in part, as a form of self medication.
23 After his assessment, Dr Cidoni was of the opinion that you suffered from social phobia in the past and during your current period of imprisonment you have suffered some adjustment disorder with depressed mood. He considered that it would be important for you to be reviewed for the consideration of antidepressant medication to be linked with substance abuse monitoring and psychological intervention for anxiety and depression. In particular, Dr Cidoni states:
“The offending has occurred in the context of Mr Nugent feeling threatened and in danger. He was also feeling distressed that the money owed to his mother had not been repaid. His social anxiety would already cause him to feel uncomfortable and anxious in a situation like this. His recollection of his father’s violence is likely to have escalated his anxiety and made him feel more frightened.
In my opinion by virtue of Mr Nugent’s anxiety and depression, he will experience imprisonment as more difficult and there is a high risk that particularly post sentencing his mood will deteriorate in custody.
In my opinion with appropriate treatment being put in place, there are reasonable prospects for rehabilitation reducing the risk of reoffending.”[6]
[6] See Exhibit A page 4
DVD footage of incident
24 The Court viewed a short DVD[7] footage of the incident. Such footage revealed you waving what appeared to be a knife in your hand, moving backwards with Desic moving towards you. I also further accept that the video footage shows Desic acting in a reasonably aggressive manner.
[7]See Exhibit C
The Plea
25 On the basis of such material, your counsel submitted that the nature of the offending warrants a period of imprisonment but further submits that the following matters should be considered in mitigation:
(a)your early plea of guilty to the charge which has had the utilitarian effect of saving expense and inconvenience to the community. Furthermore, you were cooperative and made full admissions to the police which amounts to some evidence of remorse;
(b)that you have no prior convictions of a similar nature to the subject offence and that the two earlier offences involving some degree of violence were a number of years ago;
(c)that you are a youthful offender with good prospects of rehabilitation;
(d)on the basis of Dr Cidoni’s opinion, you suffer anxiety and depression, and you will find prison harder than someone without such conditions and that should be taken into account.
26 Your counsel submitted that based on the various mitigating factors, the length of any non-parole period of imprisonment should be modest. Ultimately, your counsel submitted that an appropriate head sentence should be two years of imprisonment with a non-parole period of one year.
27 Your counsel stressed that clearly enough, you have pleaded to the offence of causing serious injury recklessly, but it is not suggested that you went to the St Albans Football Club intending to use a knife. Rather, the offending was brought about by a chance meeting with Whiteside who allegedly owed your mother money, which escalated with the involvement of Desic.
28 Counsel for the prosecution generally accepted that the submissions made by your counsel by way of mitigation were relevant in determining the appropriate penalty. However, he stressed the seriousness of any act of stabbing, which should be denunciated by the community. Although there was only one stab wound, the wound was to the femoral artery which could have had significant serious consequences for Desic. On instructions, he joined with your counsel in submitting that a period of imprisonment was appropriate and should consist of a head sentence of two to three years with a non-parole period of one to two years.
Conclusion
29 Both your counsel and counsel for the prosecution submit, appropriately in my view, that a custodial sentence is appropriate given the nature of the offending. Although I accept that:
(a)you did not go to St Albans Football Club intending the use of a knife;
(b)it was only a chance meeting with Whiteside who owed your mother money;
(c)that the situation escalated by the involvement of Desic; and
(d)Desic only suffered one wound to the groin, such a disposition is appropriate given that the use of knives as weapons must be denunciated by the courts in the gravest terms.
30 The potential for serious injuries and/or death occurring from knife wounds is significant and as seen in the circumstances of this matter, the wound damaged the femoral artery of Desic. In considering an appropriate sentence, principles of denunciation, general deterrence and specific deterrence are important.
31 I do accept that after viewing the DVD footage of most of the event, Desic also demonstrated a degree of aggression which no doubt escalated the situation. However, the absence of a knife would have avoided a wound to the femoral artery.
32 I also accept that the following matters are relevant in determining an appropriate sentence:
(a)you pleaded guilty at an early time and in particular, I refer to R v Tasker (2003) 7 VR 128 at [133] where Eames JA stated:
“… pleas of guilty … worthy of a significant sentencing discount even if the only factor worthy of being given particular weight was the avoidance of expense and inconvenience of a trial.”
Furthermore, it was stated in Tasker that:
“Ordinarily, pleas of guilty are to be taken as evidence of some remorse quite apart from the value they have in saving expense and inconvenience to the community.”
I should add, that other than the early plea of guilty, there is little evidence of remorse in relation to the particular offending (save for your comment to Dr Cidoni that you “regretted the offending”.
(b)you did assist police and made full admissions about the activities that occurred on that night.
(c)given your age, I accept that you should be clearly viewed as a “youthful offender” for the purposes of sentencing and that the principles expounded in R v Mills [1998] 4 VR 235 (see also Azzopardi v R [2011] VSCA 372) have application. I refer to the judgment of Redlich JA in Azzopardi, and in particular paragraphs [34] – [36] where he highlighted that “young offenders” are “more prone to ill considered or rash decisions”; that young offenders have the potential to be redeemed and rehabilitated; and “the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender’s prospects of successful rehabilitation”.
I accept the submission of your counsel that you have reasonable prospects for rehabilitation in that you are attempting to find some vocation which you can follow after release from prison and furthermore, you have the support of your mother to whose home you can return after your release from prison. It is also encouraging that, according to Dr Cidoni, you ceased taking methylamphetamine several months prior to your recent incarceration. It is to be hoped that you will seek advice in prison about drug abuse and your mental condition.
(d)Although you have a number of convictions for driving and theft related offences, it would appear that any acts of violence last occurred in 2007 and 2009 when you were dealt with by a Children’s Court and placed on good behaviour bonds. As I have stated earlier, I accept that the offending did not just involve a random act of violence but was brought about by the circumstances which escalated on the night.
(f)Based on the opinion of Dr Cidoni, I accept that a period of imprisonment will be harder for you, given that he diagnoses you suffering symptoms of anxiety and depression.( see R v Verdins [2007] VSCA 102).
33 I have taken all these matters into account in determining an appropriate sentence. I have tempered, to some degree, the non-parole period to allow you to pursue, hopefully, rehabilitation to avoid this type of offending reoccurring.
34 Accordingly, I make the following orders:
(a)On the charge of causing serious injury recklessly, you are convicted and sentenced to a period of 26 months' imprisonment, of which you must serve a period of 15 months' imprisonment before becoming eligible for parole;
(b)I declare that you have served pre-sentence detention in relation to this offence of 238 days (excluding this day);
(c)Pursuant to s6AAA of the Sentencing Act 1991, I declare that I would have imposed a sentence of 36 months' imprisonment with a minimum of 26 months to serve before becoming eligible for parole, if you had not pleaded guilty to the offence. Before going further Madame Prosecutor, are those days of pre-sentence detention correct?
35 MS YILDIZ: Yes, Your Honour.
36 HIS HONOUR: Anything to be added.
37 MS YILDIZ: No, Your Honour.
38 HIS HONOUR: Mr Nugent, I believe you have got some prospects for rehabilitation. You are starting to do a few good things. As I understand it, you have done away with the drugs and that has stays before going to prison. Second, in prison you chasing up vocational matters will give you some sort of foothold to do something when you come out of prison. And third, luckily, you have got the support of your mother. Somewhere to go to after you come out of prison. What you have to realise though is this. The use of knives will not be tolerated in the community. Although this is serious enough, it could have been a lot worse. And that is essentially why you are receiving the period of imprisonment that you are. Indeed, because of your youth, and the matters I have referred to, you are getting a smaller sentence than otherwise I would have given involving a knife. But really, it is up to you now, it is really up to you. And in the time you spend in prison, keep on going with the vocational aspects. Get some advice about drug counselling and get some advice, if you feel depressed, make it known and get some treatment. This is your chance to really get yourself back on the straight and narrow and come out and give yourself a chance. You have got life in front of you. You are a very young man. Because if you keep following this path after you come out of prison, you will be in prison for a lot longer and your life will be blighted. So see this as a chance to do something about the future. Do you understand?
39 PRISONER: Yes.
40 HIS HONOUR: Yes, very well. Anything to be added?
41 COUNSEL: No, Your Honour.
42 HIS HONOUR: Yes, I'll adjourn temporarily.
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