Director of Public Prosecutions v Paisley, Mitchell
[2012] VCC 1951
•30 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL PAISLEY |
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JUDGE: | HIS HONOUR JUDGE GULLACI | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 November 2012 | |
CASE MAY BE CITED AS: | DPP v Paisley, Mitchell | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1951 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Office of Public Prosecutions | |
| For the Accused |
HIS HONOUR:
1 Mitchell Paisley, you have pleaded guilty to a charge of recklessly causing serious injury. The maximum penalty is 15 years' imprisonment.
2
The circumstances of your offending are as follows. At approximately
1.20 amon Sunday, 3 April 2011, you were in Moorabool Street, Geelong near the intersection of Corio Street, with a number of your friends. At that location you were involved in a physical confrontation with the complainant, as set out in the Crown opening at paragraph 4, which I do not propose to repeat in my sentencing remarks.
3
A short time after that first confrontation there was a second confrontation between you and the complainant, and on this occasion you were lifted from the ground by the complainant, thrown on your back on the roadway, and both you and the complainant were separated by security staff. You, in the course of this confrontation, suffered a cut to your head which was bleeding, as
I understand it.
4 Subsequently the complainant and others walked from Moorabool Street to the McDonald's restaurant which is located on the south-east corner of Ryrie Street and Yarra Street in Geelong. They purchased some food and then sat outside the restaurant. This was at about 2.00 am. At 2.05 am you were a passenger in your blue Ford utility, which was driving along Ryrie Street in an easterly direction and approached the intersection of Yarra Street. You had been persuaded by your friends to attend at the hospital, which is in that vicinity to have the cut on your head checked out.
5 When the vehicle stopped at the lights the driver of the vehicle yelled out to the complainant, "You cunts are dead" or words to that effect. The complainant and his friend, Mr Bernie, ran onto the west-bound lanes of Ryrie Street, where Bernie either threw his drink towards the vehicle, or was preparing to do so. You then got out of your vehicle, which was stationary at the lights, and ran towards the complainant and Bernie.
6 As you were moving towards them, they were moving towards you. Bernie noticed that you were carrying a knife in your right hand and he says you were holding it above your head. There is a dispute about what that means, but I am satisfied beyond reasonable doubt that you had a knife in your possession and you were holding it in an aggressive manner. Whether it was above your head or otherwise seems to me to be of little significance.
7
Bernie retreated and the complainant stepped in to assist him. You and the complainant came together and a fight ensued between the two of you.
Mr Bernie saw you using an overhead stabbing motion to strike the complainant on at least two occasions. You agree that you slashed at the complainant on a number of occasions, and he subsequently suffered significant injuries and a number of serious lacerations.
8 The fight was of short duration. You then ran back to the utility and were driven off.
9 The complainant was taken to the Geelong Hospital. As a result of this confrontation and attack by you he suffered extensive lacerations to his left and upper-left arm, extensive lacerations to his right and left hands, and extensive laceration to his right temple area and to his forehead. You drove to a friend's address, where you hid your vehicle in a garage and washed the knife used in the attack. You remained at that address for a period of time, after which you took the knife hidden in a drink container and drove your vehicle to your girlfriend's address in Newcomb. You then placed the knife in a rubbish bin at that address. The knife was subsequently located by police at that address as a result of some information obtained from you and other people.
10 You attended at the police station on 5 April 2011 and you were interviewed. During that interview with police you admitted to having been involved in altercations with the complainant. You also admitted having left your vehicle and arming yourself with a fishing-style folding knife. You told police that you extended the blade from its handle when running towards the complainant, and you told the police that you swung the knife at the complainant in a slashing motion, you claimed, to defend yourself, and that you claimed further that you were unaware that you had struck the complainant with the knife.
11 I am satisfied beyond reasonable doubt that you were aware that you had struck the complainant with the knife, and the evidence of you washing the knife and hiding it, in my view, indicates your awareness.
12 The complainant's injuries were treated at the Geelong Hospital. He sustained nerve damage to his right hand a forehead as a result of the assault, and he sustained some tendon damage to his hand.
13 I turn to factors personal to you. You are now 25 years of age, you are currently unemployed. You have had a chaotic and dysfunctional family upbringing. Your parents separated before you were born. You had no contact with your biological father for many years. Your mother was involved in a number of abusive relationships. You faced difficulties at school and left home at the age of 13. You have a long history of drug and alcohol abuse, and this increased with the unfortunate death of your then girlfriend in a motor vehicle collision. You are a qualified roof tiler, and capable of working either in employment with a roof tiling business or as a subcontractor.
14 When you were released on bail you faced the conditions which required that you did not consume alcohol or drugs. It appears that you have not breached those conditions. You have complied with the Credit Bail program and have engaged with drug and alcohol counselling. You are currently in a relatively new, stable relationship but have not been able to return to work because of underlying anxiety and depression, together with your uncertainty about your immediate future. You have significant family support.
15
A report from a psychologist, Mr Ball, was tendered on your behalf. Mr Ball concluded, inter alia: (1) You expressed remorse; (2) That you should maintain complete abstinence from alcohol and illicit substances; (3) That you satisfy the diagnostic criteria for substance dependence in full remission;
(4) You suffer from chronic anxiety; (5) You recognised that you had a problem with alcohol and stimulants; (6) That you require long-term monitoring and treatment for anxiety and depression; (7) That you have a general lack of insight, but have responded to treatment and medication.
16
I turn to factors to be taken into account in your favour: (1) Your plea of guilty was offered at an early stage and entitles you to a full discount for your plea of guilty in my view; (2) You are still a youthful offender; (3) The complainant had engaged in a previous violent confrontation with you and was eager to engage in fighting with you, and was aggressive during the earlier confrontations;
(4) You received some injury, whether it be a cut to your head during the initial confrontations with the complainant; (5) You did not commit a random attack on a stranger, but someone who had been antagonistic and engaged with you in fighting earlier in the evening; (6) You have no prior convictions for violence or antisocial conduct; (7) This serious act of violence appears to be out of character, although you report anger problems in the past; (8) You have taken positive steps towards rehabilitation; and (9) As I noted earlier, you are in a supportive relationship.
17 The submissions of your counsel, as set out in Exhibit 5, were sensibly, in my view, directed to the length of the sentence to be imposed, and a minimum term to be fixed by the court. Your counsel relied on the matters listed above as matters to be taken into account in your favour, and in addition: (1) Relied on the written testimonials, the evidence called on your behalf and your own viva voce evidence; (2) Submitted that you have taken significant steps towards rehabilitation, and that this would be enhanced by the court fixing a significant period of supervision by the Parole Board.
18 The learned Crown prosecutor submitted this was a serious example of this type of offence to come before the courts and warranted the imposition of a term of imprisonment with a head sentence of two and a half to four years, with a minimum term of one and a half to two and a half years. Your counsel in general terms agreed, as I understood him, with the Crown range, however he, at a later point in his submissions, put to the court that the court could consider a minimum term of 12 months as being an appropriate minimum term.
19 You have two prior court appearances for theft and burglary. In my view, they are of not any significance in the circumstances of this case.
20 The victim, although foolish and aggressive, and affected by alcohol, as you were, has suffered devastating and disastrous consequences to your use of the knife in the manner that has been described. He suffered seven discrete wounds that required about 100 sutures. He has permanent scarring on his face, tendon damage, and suffered psychological trauma which is likely to be long-standing. He, like you, behaved badly on this night, but you used a knife to inflict seven wounds on him. You slashed at him, you made contact with his face, his arms and hands. It was you that decided to get out of your car with a knife, open it, and move towards the victim. In my view your moral culpability is high. Those who use knives, potentially lethal weapons in these types of frenzied confrontations, must expect significant punishment.
21 Relevant sentencing considerations for crimes such as this involve a combination of factors: the seriousness of the offence, your culpability for its commission, your personal history and circumstances, mitigating factors that exist in your case, and your prospects of rehabilitation.
22 I have considered and determined that you have reasonable prospects of rehabilitation if you remain totally abstinent from alcohol and illicit drugs. You have complied, to your credit, with the bail conditions. However, in my view, you are vulnerable. You have unresolved anxiety and depression, you have a long history of alcohol abuse and drug usage. The sentence of the court must be one that deters you from offending in a similar manner again in the future. I am encouraged in my assessment of your prospects by the positive signs that exist, the steps you have taken towards rehabilitation, and the influence of your new partner on you.
23 General deterrence is a primary consideration in this type of offending. There are common factors that exist in this type of offence to come before the court. Young men who are intoxicated in public places or in the vicinity of licensed premises where young people congregate, and the use of potentially lethal weapons such as a knife. The courts have a duty to denounce this type of offending. It results in permanent injuries, scarring and sometimes death. You are lucky that one of the seven occasions that you slashed the victim did not cause any more permanent injury or cause his death. You are not to be punished for that, but just reflect on it. Somebody intoxicated, angry and slashing at somebody who is aggressive, with a knife. The mix is potentially lethal.
24 Such serious criminal conduct puts a burden on the courts to send a clear message to those in the community who are minded to behave in this senseless, stupid way. That message must be that the courts will impose sentences that deter others from resorting to the use of potentially lethal weapons in public places.
25 I have considered the minimum term and fixed that period keeping in mind the following matters in particular: (1) Your plea of guilty; (2) Your age and matters personal to you; (3) The circumstances of your offending; (4) The need to encourage or facilitate your rehabilitation by an extended period of supervision by the Parole Board.
26 Stand up, please.
27 The formal order of the court is as follows. On the charge of recklessly causing serious injury you are sentenced to three years' imprisonment. I fix a minimum term of 16 months.
28 Pursuant to section 18 of the Sentencing Act I declare the period of 16 days be reckoned as already served under the sentence imposed by the court, and direct that be noted in the records of the court.
29 The Crown has made application for a retention order pursuant to section 464ZFB of the Crimes Act. I propose making that order for the following reasons: (1) The circumstances of your offending; (2) That the order is not opposed or consented to; and (3) That the making of the order is in the public interest.
30 I make a disposal order by consent in respect to the items in the schedule to that order.
31
Pursuant to section 6AAA of the Sentencing Act I am required to inform you what sentence I would have imposed had you maintained your plea of not guilty and been found guilty by a jury. I would have imposed a head sentence of four years and three months, and fixed a minimum term of 28 months.
I hasten to add, that is not the sentence of the court. I give you that indication as I am required to so that you can better understand and appreciate the value to you of your plea of guilty.
32 That completes my remarks. Any matters that counsel wish to raise?
33 COUNSEL: No, Your Honour.
34 HIS HONOUR: Yes, the orders are signed and they are handed down. And you are excused, Mr Paisley. Thank you.
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