Director of Public Prosecutions v Nuttall, Kevin
[2014] VCC 2151
•5 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN NUTTALL |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September and 12 November 2014 | |
DATE OF SENTENCE: | 5 December 2014 | |
CASE MAY BE CITED AS: | DPP v NUTTALL, Kevin | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2151 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Intentionally causing injury – Recklessly causing serious injury – Serious violent offender – Section 6E of the Sentencing Act 1991 – R v Verdins (2007) 16 VR 269 – Relevant prior criminal history – Committed offences whilst on bail – weapons offences – glassing
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Bhai | Office of Public Prosecutions |
| For the Accused | Ms N Karapanagiotidis | Leanne Warren & Associates |
HIS HONOUR:
1 Kevin NUTTALL, you have pleaded guilty to one charge of intentionally causing injury, the maximum penalty of which is 10 years’ imprisonment, and one charge of recklessly cause serious injury, the maximum penalty of which is 15 years’ imprisonment. You have admitted a prior criminal history commencing on 2 March 1994 up to the present time. I have counted approximately 35 court appearances. Of significance is the fact that you have a prior conviction for intentionally causing serious injury and aggravated burglary for which you received a sentence of 4 years’ imprisonment in 2006 and most recently, in 2010, a sentence of 5 months’ imprisonment for assault with a weapon and recklessly causing injury. You have numerous convictions for weapons charges, dishonesty and drug charges and public order charges. You have been sentenced to terms of imprisonment on numerous occasions. At the time of this offending you were on bail for robbery and drug trafficking offences.
2 Both charges relate to events that occurred on the night of 1 February 2014. The circumstances giving rise to your offending were opened in detail by Ms Bhai, who appeared to prosecute this matter and are contained in the opening, Exhibit A.
3 In summary, at about 7:00 pm on 1 February 2014, you were standing on the footpath outside the Balaclava Hotel. Two other men were standing with you. Another man went into the hotel, ordered a beer at the bar and heard you yelling from near the front door of the hotel. You told this man, “I’ve got a bottle of wine here for you,” while holding a bottle of wine in each hand. The victim, who was drinking at the hotel, told you to “fuck off” while gesturing towards the front door. The victim stood up and you walked back outside. The victim followed you. You and the victim then exchanged a few words before you walked away towards the TAB. The victim and one of the men who had earlier been standing on the footpath then began arguing, and started pushing and shoving each other. The third man from the footpath swung a punch at the victim but missed. You then ran towards the victim and struck him to the back of his head with an unopened bottle of wine. The bottle shattered. The victim was dazed, and was bleeding from a small laceration on his head. You and the two other men from the footpath left the hotel.
4 About half an hour later, you were walking back across the road from the hotel towards Safeway. One of the hotel patrons called out, “that little prick is out the front again, someone call the cops.” The victim immediately ran outside and across the road to the Safeway car park. You and the victim then argued in the car park, and were, according to one witness, having a “pretty serious scuffle” while yelling and pushing each other. The victim punched you, and a woman from Safeway tried to intervene to break up the fight. The victim punched you at least twice more and knocked you to the ground. While you were on the ground, the victim leant over you and punched you three or four more times while you lay on your back trying to punch back. You then produced a folding knife and struck the victim to his neck. The victim began bleeding heavily while continuing to lean over you, punching you a further two times. The victim was bleeding onto you while this was happening. The victim then staggered backwards and fell onto the ground. Passers-by assisted the victim until the ambulance arrived. By this stage you had run away, thrown the knife into a charity bin, taken off your t-shirt and wiped blood from your face. You ran to a property in Inkerman Street, where you discarded your blood-soaked t-shirt and jumper.
5 Just after midnight, you walked past police on the corner of Inkerman and Chapel Street. The police recognised you and you were arrested. You told police that, “I was just going to get a drink and come straight down to turn myself in. I know you’re looking for me and there’s no point running.” You were taken to the St Kilda Police Station where you admitted the offending during interview.
6 The victim was taken to the Alfred Hospital where he underwent surgery. As a result of your offending, the victim suffered a complete transection of the left internal carotid artery and a left internal jugular vein laceration, with resulting thrombosis. As a consequence of his injuries, the victim suffered a large left fronto-temporal cerebral infarction (stroke) encompassing both the middle cerebral artery and the anterior cerebral artery circulations. He had an intra-cerebral haemorrhage. The victim remained in hospital for two weeks. Upon discharge from hospital, he was admitted to the Caulfield Hospital for inpatient rehabilitation. He remained there for a further five weeks until being discharged to supported accommodation with community-based rehabilitation. As a result of the stroke, the victim suffered profound speech and language disorder and hemiparesis resulting in complete paralysis of the right upper and lower limb.
7 Five months after the offending, the victim was still suffering significant impairment. He was still dysfluent, continued to have issues with saliva control and drooling at times, was slow with reading and comprehension, had very little function in his right upper limb and had residual right leg paralysis.
8 It is unlikely that the victim will return to normal ability in relation to fluency of speech, particularly as regards speech comprehension, and dexterity of his right upper limb. Both the victim and his father made victim impact statements, Exhibits B and C, that were read aloud by the prosecutor. The victim was a successful, hardworking, talented individual and it is sadly clear that that your offending has had a permanent, profound and debilitating effect on him and his family.
9 Ms Karapanagiotidis submitted on your behalf that I take into account the following by way of mitigation:
(a) that you pleaded guilty and did so at an early point of time;
(b) that you are remorseful;
(b) that you cooperated with the police;
(c) that you abandoned a viable defence, namely self-defence, which further demonstrated your acceptance of responsibility and remorse;
(d) that you were affected by alcohol at the time;
(e) that you were not the instigator of the second episode which gave rise to charge 2 and that you reacted to a situation not of your choosing and that I should sentence you on this charge as for a failed self-defence;
(f) that you have a socially disadvantaged background involving homelessness and a struggle with heroin, which is now being managed by a methadone program; and
(g) that the principles of R v Verdins[1] were engaged.
[1] (2007) 16 VR 269.
10 She said that you had just been given that knife that day by a friend, that it fell from your pocket during the struggle and that you opened it during the struggle. Ms Karapanagiotidis further submitted that at the time of the stabbing you were operating in a stressful situation and had a limited ability to process information and make rational choices. An ARBIAS report dated 13 January 2014, exhibit 2, and authored by Dr Melissa Slayo, a clinical neuropsychologist, was called in aid of this assertion. The report recorded a longstanding history of alcohol and substance abuse, psychological issues and reported head injuries. A neuropsychological report was referenced which addressed certain questions posed by Victorian Legal Aid with respect to other proceedings and reported that you had mildly reduced attention and slowed speed of processing (particularly under high attentional demand) which negatively impacted on your ability to process information and to make rational choices when under time restraints, such as in social scenarios. In answer to the question of whether the condition affected your moral culpability for the relevant offending, the report said that your neuropsychological functioning was not at a level where it would affect you moral culpability for that offending.
11 The plea was adjourned to obtain an update of that report to see if there was any relevance to the present offending. In her report of 27 October 2014, exhibit 3, Dr Slayo stated that your attention and information addressing speed was only mildly reduced and should not have impacted on your ability to attend to the situation at hand at the time of the two assaults. Further, it was stated that you did not demonstrate any other cognitive limitations that might have had any other influence or impact on your offending behaviour on that day but that your reduced ability for self-monitoring and impulsive responding are likely to be the consequence of your ongoing alcohol and substance abuse and psychological symptoms may have. Ms Karapanagiotidis said that based on this report, only a mild sentencing reduction to take into account your increased impulsivity was called for.
12 By way of further background Ms Karapanagiotidis said that your parents separated when you were quite young. Your father re-partnered and sent you to the United Kingdom to join your mother. You completed Year 9. You have an 18 year old daughter with whom you have sporadic contact. You lost a young child and then commenced to abuse heroin and quickly became addicted. You used alcohol from the age of 11. There were a number of other relationships which produced two children aged 11 and 12, the mother of whom is in custody and you have the responsibility of looking after them. You have had a variety of jobs and have spent time living in boarding houses. You have had numerous injuries including nerve damage to your left arm following an attack. You have suffered a number of head injuries over the years. There have been several overdoses and you have lost part of a lung as a result of a fight. You suffer from epilepsy.
13 As I said, on 6 February 2006, you received 30 months’ imprisonment for violent offending. You were released on parole on 22 November 2007 and completed your parole successfully. The robbery offence committed on 19 February 2013 was a bag snatch for which you received a 6 month sentence of imprisonment. The present offending was committed whilst you were on bail for that offence.
14 Ms Karapanagiotidis said that you were motivated to reconnect with your young children. She said you have moved from rooming houses to a rental property where you are helping maintain the property in return for accommodation and that you are planning to go back into drug rehabilitation. She said you would live with your brother on your release and she said that you were presently in a protective unit in the prison system, but there was no real explanation as to why that should be so and what limitations were placed upon you although she said that you felt isolated.
15 Ms Bhai submitted that these offences were most serious and the consequences to the victim were substantial. The injuries suffered were life threatening, long term and life changing. She said that the degree of recklessness was high with respect to the assault with the bottle and that these were serious examples of serious offences. She said that the offence was aggravated by the fact that you were on bail at the time and that you have a history of weapons offences. She said you had limited prospects of rehabilitation.
16 I was referred to the sentencing remarks of his Honour Judge Gullaci when he sentenced you on 6 February 2006. It is clear from those remarks that your involvement in the aggravated burglary and assaults was to strike the victim several times about the head and upper body with a plank of wood. You also threatened to cut off one of the victim’s fingers. Your co-accused stabbed the victim in the shoulder. His Honour concluded that your prospects of rehabilitation were “bleak”. He noted that you had a history of re-offending upon relapsing into drug use after serving your sentences. He also pointed out that you had been given a number of opportunities by way of suspended sentences and had on most occasions breached them.
17 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
18 Charge 1 is a particularly serious example of intentionally causing injury. The attack was cowardly, without any provocation or need. The victim had his back turned to you and had no opportunity to defend himself. Striking a person to the back of the head with a full bottle of wine was inherently most dangerous and it was extremely fortuitous that no serious injury or death ensued. This is no different and in fact many ways worse than what is commonly known as the “king hit” and which communities and governments around Australia view with disgust. The use of knives in fighting is also abhorrent. The consequences are often fatal and if not fatal cause serious and long-lasting consequences to the victim as is the case here. Whilst you were not the initiator of the second episode you wilfully and knowingly resorted to the use of the knife and stabbed in an area where you must have appreciated there was a high level of risk that serious injury would occur. Both these offences together with your prior history show a readiness to possess weapons and a willingness to resort to them. In your case the requirement that your sentence reflect general and specific deterrence, denunciation and protection for the community is high.
19 I take into account your early plea of guilty and give it full weight . It does evidence an acceptance of responsibility, a willingness to advance the interests of justice, remorse, saves ongoing trauma to the victim and saves the cost of a trial. I accept that your plea to charge 2 was in circumstances where you gave away a chance at an acquittal. You were also cooperative with police. I propose to moderate your sentence in a modest way to take into account the impairment of your mental function as disclosed in the ARBIAS reports. I take into account that you have had a compromised background and have struggled with alcohol and drug addiction. Whilst this may explain why you find yourself often in conflict with the law it does not in any way justify your violent offending. It is an aggravating feature that you were on bail for robbery and trafficking at time of this offence. You fall to be sentenced as a serious violent offender on charge 2 although the prosecution does not call for a disproportionate sentence. Notwithstanding that, the totality principle requires that I take into account that you have just served a sentence of imprisonment and I do so. I do however propose to wholly cumulate the sentence I impose on charge 2. The combination of the effect of section 6E of the Sentencing Act 1991 and the fact that although the victim in each case was the same, the events were well separated both in time and context and I do not find any reason to order any concurrency.
20 Please stand Mr Nuttall. On each charge you are convicted and sentenced on charge 1 to 2 years’ imprisonment and on charge 2 to 5 years’ imprisonment. I direct that the sentence on charge 2 be served cumulatively upon the sentence imposed on charge 1 making a total effective sentence of 7 years’ imprisonment. I direct that you serve 5 years before becoming eligible for parole.
21 I declare that you have been sentenced as a serious violent offender and I direct that a record be made of that fact in the records of the court.
22 I make a disposal order in the terms sought noting it is by consent.
23 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 9 years’ imprisonment with a non-parole period of 7 years.
24 I direct that 122 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be made in the records of the court.
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