Director of Public Prosecutions v Oska Aiken
[2020] VCC 1650
•27 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-19-01717
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSKA AIKEN |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2020 | |
DATE OF SENTENCE: | 27 October 2020 | |
CASE MAY BE CITED AS: | DPP v Oska Aiken | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1650 | |
REASONS FOR SENTENCE
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Subject:Recklessly cause serious injury, handle/receive stolen goods, possess a drug of dependence, summary charges possess prohibited weapon, possess sildenafil, unlicensed driving, failing to wear seat belt,
Cases Cited:Ejupi v The Queen [2014] VSCA 2; Glen Brown (aka James Davis) v The Queen [2020] VSCA 60.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Hotchkin | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Mr D. Hallowes SC | Lethbridges Barristers & Solicitors |
HER HONOUR:
1 Oska Alexander Aiken, you have pleaded guilty before me to one charge of recklessly cause serious injury for which the maximum penalty is fifteen years imprisonment, one charge of handle/receive stolen goods for which the maximum penalty is fifteen years imprisonment and two charges of possess drug of dependence for which the maximum penalty for each charge is twelve months imprisonment if the court is satisfied that the offence was not committed for any purpose relating to trafficking.
2 You also consented to this court dealing with the summary offences of:
· possess prohibited weapon (summary charge 7) for which the maximum penalty is two years imprisonment;
· possess schedule 4 poison namely sildenafil (summary charge 10) for which the maximum penalty is ten penalty units;
· unlicensed driving (summary charge 11) for which the maximum penalty is six months imprisonment;
· failing to wear a seat belt (summary charge 13) for which the maximum penalty is ten penalty units.
Background
3 The victim, Jamie Marino (Marino) met Ruby Harris in September 2018 through a mutual friend. He formed a friendship with her. Although he was not in a relationship with Ruby Harris, he stayed in her family home in Carnegie from time to time until early December 2018.
4 Although you and Marino did not know each other, there was a connection between you in that by mid-December 2018 you had formed a relationship with Ruby Harris and on occasions stayed at the home which Ruby shared with her mother, Linda Harris.
5 On 27 December 2018 Marino arranged to meet Ruby Harris in St Kilda to discuss a dispute they had over a laptop. Ruby Harris believed that Marino had attended at her house a few days earlier and stolen her laptop. She expressed concern as the laptop contained compromising photographs of her. Marino denied stealing her laptop.
6 Marino was then living in Woori Yallock. Marino travelled from Woori Yallock to St Kilda beach by public transport and arrived at St Kilda beach whilst it was still light. He had to wait a few hours for Ruby Harris to arrive and when she did, she told him that there were too many police in the vicinity and that they should move to a quieter area. As they walked around the streets of St Kilda, Ruby Harris confronted Marino about stealing her laptop and he assured her that he did not have anything to do with her laptop being stolen. Ruby Harris told him that “if that laptop does not come back, something bad is going to happen.”
7 By 12.55am on 28 December 2018 Marino and Ruby Harris were walking along Carlisle Street in Balaclava looking for a secluded place to use drugs. They turned into Woodstock Street and then into Dianella Lane. Dianella Lane is a small laneway at the rear of the Balaclava Hotel. Once in the laneway they went into an open garage opposite the Balaclava Hotel carpark.
The offending
8 Once in the garage, Ruby Harris injected herself with heroin and Jamie Marino smoked some methylamphetamine. Shortly after Ruby Harris injected herself, she appeared to be having a drug overdose. She began to foam at the mouth and slumped to the ground. At approximately 1.02am Marino used his mobile telephone to call “000” to request ambulance assistance for Ruby Harris.
9 Whilst Marino was on his telephone to the “000” operator, he was standing just outside the entrance to the garage when he noticed a red car pull up in the hotel carpark. You got out of the car and approached Marino and when you were beside him, Marino heard you say “Do you want to die” in a quiet voice. Marino then felt what he initially thought was a punch to the right side of his body but when he put his hand to where the blow landed, he felt part of his stomach sticking out from his skin.
10 Marino immediately ran to the St Kilda Police Station which was nearby in Chapel Street. Once at the police station he reported the stabbing to the police and told them about Ruby Harris being unconscious after overdosing on heroin in the garage at the back of the Balaclava Hotel. Marino’s condition deteriorated rapidly at the police station and police arranged for him to be taken to The Alfred Hospital by ambulance, where he underwent emergency surgery upon arrival.
11 After Marino ran from the garage, Anthony Raistrick and his girlfriend, Dannika Peach, approached the area on foot. Dannika Peach worked in the area and her car was parked in the carpark behind the Balaclava Hotel. From Carlisle Street they walked along Woodstock street and turned right into Dianella Lane. As they were walking along the laneway, they both saw you run towards a garage which had an open front doorway. After you entered the garage, they heard a scream and so they ran towards the garage.
12 When they arrived at the garage, they saw you standing over Ruby Harris who was on the ground. You told them that you thought that she had overdosed. Initially Ruby Harris was not moving but then she started screaming. You told Ruby Harris on a number of occasions that “It’s Oska, it's Oska” before Ruby Harris got up and ran off into the hotel carpark and out of view. Dannika Peach and Anthony Raistrick then saw you run towards a small red car parked about twenty meters away from the garage and drive away.
13 Police attended at the scene but by the time they arrived you and Ruby Harris had left. Anthony Raistrick and Dannika Peach remained at the scene and informed police of their observations.
Admission
14 Linda Harris recalls that late one night in December 2018 her daughter and you returned home and that you showed her a knife that had blood on it. You told her that you had stabbed Marino. You said something like Marino had kidnapped Ruby or had her held up in an abandoned building. The conversation went on for about half an hour and Ruby Harris said that she thought she had a fit, and that she had hit the back of her head on the ground. At one stage in the conversation, you repeated that you had stabbed Marino. You told Linda Harris that you heard Marino’s lung pop.
The injuries
15 At the time that he was stabbed, Marino was 40 years old and was employed as a labourer. He was taken by ambulance to the emergency department of The Alfred Hospital. Dr Cecil Johnny examined him and noted that he had a penetrating wound to the right upper quadrant of his abdomen and an underlying laceration of the right lobe of his liver. Marino underwent emergency surgery soon after his admission.
16 Dr Rachel Marr from the Victorian Institute of Forensic Medicine reviewed Marino’s medical file from The Alfred Hospital. Dr Marr noted that Marino suffered significant blood loss as a result of the stab wound to his liver. He was given eight units of blood prior to his surgery to help correct his dangerously low blood pressure and to replace the blood that he had lost. Eight units of blood is equal to about one half to one third of the average person’s total blood supply. Marino underwent emergency surgery to stem the blood loss and was then admitted into the Intensive Care Unit.
17 Marino remained in intensive care until 1 January 2019. Whilst in intensive care he was given strong narcotic pain relief and was noted to have mild acute renal failure and persistent high fevers. Marino was returned to surgery on 29 December 2018 and a third of his liver was removed as a lack of blood supply to that portion of his liver had caused it to die.
18 Dr Marr opined that the stab wound that penetrated Marino’s liver caused catastrophic and life-threatening blood loss and that without timely medical intervention, he would have died from his injury. Furthermore, the loss of about one third of his liver puts him at a greater risk of developing liver failure in the future than the general population.
Arrest
19 Subsequent police investigation disclosed that on 27 and 28 December 2018 you were in possession of a red Suzuki Swift rented from Budget Car Hire (the Suzuki) earlier that month.
20 On 8 January 2019 at about 1.00 am Detective Senior Constable Diwell and Senior Constable Ryall were patrolling the Southbank area when they observed you driving the Suzuki in Haig Street, Southbank. The police followed the Suzuki and intercepted it. You were in the driver’s seat and Ruby Harris was in the front passenger seat.
21 The police arrested you and took you back to the St Kilda Police Station to be interviewed. When the police asked you questions about your involvement in the stabbing of Marino, you answered “no comment”.
22 When Senior Constable Ryall observed you driving the Suzuki on 8 January 2019 he noticed that you were not wearing a seatbelt (summary charge 13 – failing to wear a seatbelt). After the police intercepted the Suzuki they conducted a VicRoads check which disclosed that you did not hold a licence to drive (summary charge 11- unlicensed driving).
23 At the time police intercepted you the Suzuki was bearing registration plates YVU 932. Subsequent inquiries revealed that those registration plates were stolen on either 1 or 2 January 2019. (charge 2). Subsequent examination of the stolen number plates revealed that your fingerprint was located on the plate.
24 After the police arrested you they searched you and the Suzuki. Whilst searching you they located a pair of black knuckle dusters in your pants (summary charge 7 – possession of a prohibited weapon). When searching the car, the police located a black satchel bag that contained two clip seal bags and a prescription tablet. Subsequent analysis disclosed that one of the bags contained .3 of a gram of methylamphetamine (charge 3), the other bag contained .1 of a gram of ketamine (charge 4), and the tablet contained sildenafil (summary charge 10 – possess a schedule 4 poison).
25 The prosecution accepts that the drugs were for personal use. I am satisfied that each of the charges of possess drug of dependence was not committed for any purpose relating to trafficking.
26 The facts in this case are very serious. Your conduct was vicious and cowardly. You were subject to a Community Correction Order at the time you committed these offences. The Community Correction Order included a condition that you undergo treatment for drug abuse or dependency.
27 No victim impact statement has been tendered in this matter. It is clear from the depositions and the evidence I do have before me that the nature of the injuries sustained by Marino were serious and long lasting and that Marino has suffered very considerably as a result of your actions.
28 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. The prosecutor conceded that your plea of guilty carries a greater utilitarian benefit given the delays in the hearing of trials caused by the suspension of jury trials during the COVID-19 pandemic. It is however noted that your offer to plead guilty was made a year after a contested committal at which the victim and other witnesses were cross-examined.
Remorse
29 Initially you did not express any remorse. You told Linda Harris that you stabbed Marino and heard his “lung pop”. You have since expressed remorse for your conduct.[1] You told Dr O’Meara that you sincerely regretted the offending and the impact on the victim. Your father also believes from his discussions with you over the past 22 months that you have genuine remorse for the impact on the life of the victim. In the circumstances I accept that in your case your plea indicates that you now accept responsibility for your conduct and have expressed some remorse for your actions.
[1] Exhibit 2, p4.
Personal history
30 I have been told something of your personal history and your circumstances. You were born on 4 April 1989 and are 31 years old. At the time of the offence you were 29 years old.
31 Your parents, Neil Christensen and Tracie Toohey (nee Aiken) separated when you were three or four years old. Your mother remarried when you were four years old. You grew up in regional Victoria, predominantly in Bairnsdale living with your mother and three younger half-siblings. You spent weekends with your biological father until your mid-teens.
32 You were educated to Year 10 at Nagle College, Bairnsdale. You had frequent conflicts with your stepfather during your formative childhood and teenage years. You were evicted from your mother’s house when you were 15 years old as a result of cannabis use. You obtained a carpentry apprenticeship with Pincott Trinder builders. You completed your apprenticeship with I & DA Mattes Builders after Pincott Trinder ceased trading.
33 You have a son Ryder who was born in 2009 and is now 11 years old. Ryder remains under the care of his mother. You maintained intermittent contact with your son until April 2020 and hope to establish more frequent contact following your release.
34 You continued to work as a carpenter for some five years until your first incarceration in 2013. Upon release you moved in with your father in Melbourne for around nine months. You obtained employment with Dynamic Developments as a carpenter. You moved out of your father’s home in mid to late 2014 and relapsed into drug use. You have worked intermittently since that time until your arrest on these matters in January 2019.
35 Your mother and half-siblings ceased all contact with you when you were first incarcerated seven years ago.
Drug use
36 You have a long history of poly-substance abuse. This has included intermittent use of LSD, MDMA, GHG and heroin. You have regularly used methamphetamine and were using ice daily at the time of your arrest.
Work history
37 You are a qualified carpenter. Despite using drugs on a casual basis from an early age, you were able to maintain steady employment until 2013. You also worked steadily upon your release from your first period in jail. Since then you have had sporadic periods of employment. Immediately prior to your current arrest, you received an income from Centrelink Newstart payments.
38 You have admitted before me to prior convictions. There are 59 such convictions, involving five court appearances between 2009 and 2018. The nature of some of those prior convictions, in particular, the two convictions for recklessly cause serious injury, the two convictions for dishonestly handle/receive/retention stolen goods, the four convictions for unlicensed driving, the six convictions for possess controlled and prohibited weapons are such that they are highly relevant to my task of sentencing you today. This is the only time when it is alleged that you have used a weapon against another person.
39 You have been in custody since your remand on 8 January 2019. On 28 October 2019 you were sentenced at the Melbourne Magistrates' Court to four months imprisonment on charges of handling stolen goods, possession of drugs of dependence, possession of a controlled weapon and driving whilst disqualified.
40 Evidence has been led on your behalf. I have heard from your father, Neil Edmund Christensen. He confirmed the contents of a reference dated 8 October 2020 which was tendered.[2] He told the Court that you stayed with him after you were released from custody in December 2013. He said that you obtained employment and there was no indication that you were using drugs during that period of time. You left home in August 2014 and moved in with a friend in the Derrimut area. He said that he had very little contact with you in the next few months and that unfortunately you fell back into the use of drugs.
[2] Exhibit 3.
41 Your father told the Court that he has had regular contact with you since you were imprisoned in January 2019. He said that in the course of conversations with you, were more reasonable and understood that there are significant issues that need to be addressed. He said that you had spent your 30th birthday in custody and were becoming aware that you are wasting a lot of time. Your father is hopeful that you will engage in psychological counselling to address some of the issues that have contributed to your drug abuse. He said that he has been there to support you each time you are released from custody. When you are released from custody you would be able to live in your father’s home subject to tight restrictions.
Rehabilitation
42 You hope to gain employment as a carpenter following your release from custody to reduce your risk of recidivism. You describe a close and supportive relationship with your biological father. You have the ongoing support of your father. You have shown an ability to work. Your counsel submitted that you have indicated increasing maturity and insight. Your father understands your difficulties and will provide assistance. You are a qualified carpenter and have the support of your father which will assist in your rehabilitation.
43 A report dated 1 October 2020 by Dr Rachel O’Meara (clinical neuropsychologist) (Dr O’Meara’s report)[3] was tendered. You told Dr O’Meara that you wanted to remain abstinent from illicit substances in the future. You believed that you might be able to achieve this by returning to work, remaining busy, and potentially utilising prescription medications (e.g. Buprenorphine). You did not want to participate in a Methadone program due to concerns about associated stigma and difficulty accessing the treatment at the required time if working.
[3] Exhibit 2.
44 You have been granted four community correction orders. Three of those orders were breached and contained a condition that you undergo treatment for drug use or dependency.
45 You have had limited engagement in drug rehabilitation courses. You told Dr O’Meara that you felt that they have not assisted you. Dr O’Meara stated:
'He had never completed any detoxification programs or residential rehabilitation in the past and was not interested in similar treatment options in the future. He had completed “bits and pieces” of drug and alcohol counselling whilst incarcerated and when a mandatory condition of community-based orders but had not found the counselling beneficial and was not interested in re-engaging in the treatment in the future.[4]
[4] Exhibit 2, p4.
46 While on remand, you have attempted to engage in courses in relation to drug and alcohol abuse. You have been placed on the waiting list for the programs you have nominated[5] but have not been able to participate in those courses because of the COVID-19 Pandemic. You have also completed Certificates of Completion by Relationships Australia and Caraniche[6]. You are working on an assembly line packing brackets for plumbers.
[5] Exhibit 4.
[6] Exhibit 4.
47 In Dr O’Meara’s opinion:
Mr Aiken’s ability to refrain from reoffending in the future is likely to be closely related to his ability to remain abstinent from substances. Unfortunately, although he independently recognised an association between his substance use and offending and reported an intention to remain abstinent from substances following his release, he demonstrated limited insight into the reason for his use (“I just hate being sober”) and a lack of motivation to engage in relevant treatment (e.g., residential rehabilitation or drug and alcohol counselling) other than prescribed medication. He did, however indicate that he was considering engaging in psychological therapy and therefore this might be utilised as an alternative means of increasing insight into, and the application of targeted behavioural strategies to reduce his substance use. He may also benefit from psychiatric review to explore alternative psychotropic medications with a different side effect profile to assist with increasing compliance when in the community.[7]
[7] Exhibit 2, p 14.
48 In my view your prospects for rehabilitation remain guarded. You have an extensive criminal history that would appear to be drug related. Although you have the support of your father and are able to obtain employment as a carpenter, your prospects of rehabilitation are dependent on your ability to remain drug free when you are released from custody. Your prospects for rehabilitation will also depend on your willingness to engage in drug rehabilitation programs and psychological counselling.
Gravity of offending
49 The defence conceded that the offence was serious. Your counsel submitted that the assault was spontaneous although it was based on a misconception that Harris was in danger. The defence submitted that it was one stab wound and not a prolonged assault. The prosecution concedes that you may have perceived that Ruby Harris was in some sort of danger in your drug affected state but that such a belief was totally misconceived. Your reaction was completely disproportionate.
50 I accept the submission made by the prosecution which was conceded by the defence that the offending can be viewed as within the upper range of seriousness for the offence of recklessly causing serious injury. The injuries inflicted were life threatening and Marino would have died without timely medical intervention. It was highly probable that such an injury would have resulted from a stab wound to the abdomen. A dangerous weapon (a knife) was used to inflict the injury. You had armed yourself with a knife prior to travelling to St Kilda. The attack was upon an unarmed man. The attack was at night at a secluded location and was without warning. Marino was unsuspecting and did not have an opportunity to defend himself.
51 In Ejupi v The Queen[8] the Court of Appeal (Priest and Coghlan JJA) considered the offence of recklessly causing serious injury perpetrated by the use of a knife which resulted in life-threatening injuries and stated:
As against those mitigating aspects, this was a serious example of the offence of recklessly causing serious injury. This Court has often remarked on the dangerousness of knives, given the obvious risk in their use of damage to a victim’s internal organs and blood supply and thus to life.[9] 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.
[8] [2014] VSCA 2, [36].
[9]Ashdown v R (2011) 219 A Crim R 454, 463–4 [19]-[20].
52 The defence submits that your remand in a period of COVID-19 confinement has placed a further burden on you because of your limited contact with the outside world , reductions in personal liberty within the confines of the prison, and the lack of opportunity to participate in rehabilitative courses. You have now been transferred to Barwon prison. You are locked down at 4pm in the afternoon and released at 8 am. In Glen Brown (aka James Davis) v The Queen[10] the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is 'causing additional stress and concern for prisoners and their families'. The prosecution concedes that the time that you have spent and will spend in prison will be more onerous because of the restrictions in place in prisons in response to the COVID-19 pandemic. The impact of the COVID-19 pandemic is a matter I take into account in your favour in mitigation of sentence.
[10] [2020] VSCA 60, [48].
53 In arriving at the appropriate sentence I have taken account of current sentencing practices. In seeking to understand these, I have considered, amongst other things, the Sentencing Snapshot (on Causing serious injury recklessly) from the Sentencing Advisory Council, and a number of broadly comparable cases in which sentences for that charge have been passed or considered, some of which were drawn to my attention by your counsel and the prosecution.
54 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
55 These are without doubt serious offences. In all the circumstances, I have no alternative to the imposition of custodial sentences. I propose to record convictions on all charges and sentence you as follows:
Charge 1 – Recklessly Cause Serious Injury - to a term of imprisonment of five years.
Charge 2 – Handle or Receive Stolen goods - to a term of imprisonment of two months.
Charge 3 – Possess a drug of dependence (namely ketamine) - to a term of imprisonment of fourteen days.
Charge 4 – possess a drug of dependence (namely methylamphetamine) to a term of imprisonment of fourteen days.
Summary Charge 7 – possess prohibited weapon - to a term of imprisonment of two months.
Summary Charge 10 – possess schedule 4 poison namely sildenafil – convicted and fined $150.
Summary Charge 11 – unlicensed driving – to a term of imprisonment for one month.
Summary Charge 13 – fail to wear seat belt- convicted and fined $100.
56 The base sentence is the sentence imposed on Charge 1, recklessly cause serious injury. I direct that one month of each of the sentences imposed on Charge 2 and summary Charge 7 be served cumulatively on each other and on the sentence imposed on Charge 1. That results in an effective sentence of five years and 2 months. I direct that you serve a minimum term of three years and six months before becoming eligible for parole.
57 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 597 days. I direct that such be noted in the records of the court.
58 MR HALLOWES: As Your Honour pleases.
59 HER HONOUR: Just one moment.
60 I order that the property referred to in the schedule of the disposal order (the property), which I have signed this day, be forfeited to the Minister. I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.
61 Lastly I order that the property referred to in the schedule of the forfeiture order which I have signed this day be forfeited to the Minister.
62 Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years and six months on Charge 1, three months on Charge 2, one month for Charge 3, one month for Charge 4, three months for summary Charge 7 and two months for summary Charge 11. I would have directed that two months of each of the sentences imposed on Charge 2 and summary Charge 7 be served cumulatively on each other and on the sentence imposed on Charge 1, making a total effective sentence of seven years' and ten months. I would have directed that you serve a period of five years and two months before being eligible for parole.
63 Are there any further matters?
64 MR HALLOWES: No, Your Honour.
65 MS HOTCHKIN: No, Your Honour.
66 HER HONOUR: Thank you, please adjourn the court.
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