Director of Public Prosecutions v Patten
[2020] VCC 993
•6 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-02356
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER ROBERT PATTEN |
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2020 | |
DATE OF SENTENCE: | 6 July 2020 | |
CASE MAY BE CITED AS: | DPP v Patten | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 993 | |
REASONS FOR SENTENCE
Subject:CRIMINAL LAW
Catchwords: Plea of guilty – One charge of recklessly cause serious injury – Offender stabbed victim to the abdomen – Relatively serious example of the offence – Victim suffered laceration to lower intestine and underwent three surgical operations – Significant criminal history – Offender was stabbed six times to the back by victim’s brother in retaliation requiring surgery – Extra curial punishment – Unique plea of guilty as critical witnesses reluctant to give evidence – Genuine remorse – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: DPP v Weybury [2018] VSCA 120.
Sentence: Imprisonment for a period of 13 months together with a Community Correction Order for a period of 3 years.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B L Sonnet | Office of Public Prosecutions |
| For the Accused | Mr J P McQuillan (Plea) Mr D De Witt (Sentence) | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
Introduction
Christopher Robert Patten, you have pleaded guilty to one charge of causing serious injury recklessly contrary to s 17 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment.
You have also admitted your prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
The offending occurred on 31 January 2018 at which time you were residing at 82 Oakbank Boulevard, Whittlesea with Linda Ornsby and her two adult children, Jayden Ornsby and Dylan Ornsby.
Jayden Ornsby invited a group of friends over for New Year’s Eve drinks. Attendees included Tristan Robin, Liam Bell, Kyle Bell, and the victim in this matter, Daniel Robin, who was 21 years of age at the time. You and
Ms Ornsby were also present.
Throughout the night the attendees were drinking in the yard situated on the side of the house. At one point, Ms Ornsby came out of the house and sat on the lap of Kyle Bell. You stated to Ms Ornsby that you were bringing mates around and Mr Bell responded that this may cause a fight.
You stood up with a VB stubbie in your hand and swung it across the left side of Mr Bell’s face and neck causing scratching. This act is uncharged. You and Mr Bell then fought for a short period of time before it was broken up by
Daniel Robin who restrained you. Mr Bell went inside and stated that you had been 'whacking' him.
At approximately 3.20 am on 1 January 2019, Ms Ornsby endeavoured to have everyone leave due to the earlier conflict and tension at the gathering. As people were leaving, Daniel Robin went over to speak to Ms Ornsby. At this point, you were behind Ms Ornsby, who states that Daniel Robin was
'mouthing off' to you.
You approached Daniel Robin from behind whilst holding a piece of fence paling. You hit him to the top right hand side of his forehead causing a large laceration. You then stabbed Daniel Robin twice to the abdomen and you both fell to the ground.
Tristan Robin and other friends who were at that stage located on the
Oakbank Boulevard side of the address, ran over and defended Daniel Robin. You were then assaulted, with Tristan Robin stabbing you six times to the back during the altercation. You were also kicked and stomped on whilst on the ground causing lacerations to your left eyebrow and right ear.
Tristan Robin held Daniel Robin and sought to cover the wound to his abdomen until investigating police and ambulance officers arrived. Daniel Robin was transported to the Alfred Hospital with a serious injury.
You were transported to the Royal Melbourne Hospital with multiple stab wounds and blunt force trauma caused by the subsequent assault on you. You were discharged two days later.
As a result of the attack, Daniel Robin received three surgical operations and lost five centimetres of his lower intestine which had been severed, before being discharged from hospital on 31 January 2019. He required daily care by the Hospital in the Home team for approximately two months after being discharged. During this time, Mr Robin had to wear a colostomy bag and a catheter tube was attached to his gallbladder. He had no recollection of the attack by you.
On 18 April 2019, Tristan Robin was arrested and interviewed in relation to the attack upon you. He stated that he found his brother, Daniel Robin, lying in a pool of blood outside his house in the early morning. He stated he retaliated and stabbed you because he believed you had just stabbed his brother even though he did not witness the incident. He stated he stabbed you with a knife found on the ground nearby.
In the interview, Daniel Robin agreed that there is in effect a 'code of silence' between himself, you, and other witnesses as to what happened on the night.
On 18 April 2019, you were arrested by investigating police and conveyed to Mill Park Police Station. You made a 'no comment' record of interview.
Nature and gravity of the offending
The offence of causing serious injury recklessly is self evidently a serious charge carrying a maximum penalty of 15 years imprisonment. However, it is also a charge that is able to encompass a wide range of circumstances. In this instance, while you clearly caused a serious injury to the victim, in response to your conduct, and motivated by defending the victim, you were stabbed six times to the back by the victim’s brother, Tristan Robin, and kicked while on the ground. On his own admission, Tristan Robin stated that he stabbed you in retaliation.
Nonetheless, your conduct of striking the victim to his forehead with a piece of fence paling and then stabbing him twice to the abdomen was a serious attack on a person who was not threatening you in a physical way. While I was not told of the history of the disagreement between you and the victim, whatever the motivation, it did not warrant the nature of your response while at a social family gathering.
What can be taken into account in my view is that on your own admission, you had consumed ice earlier in the evening and had then continued to consume alcohol. While it can never excuse your conduct, what can be said is that this type of extreme violent reaction is unfortunately all too common in circumstances where people have used ice, demonstrating yet again the destructive nature of the drug.
The victim required significant medical intervention which included the removal of five centimetres of his intestine. He was in hospital for a month, followed by a two month period of daily care and undoubtedly, a longer period of recovery.
In his victim impact statement that was tendered on the plea, Mr Robin states that he has had difficulty in regaining strength in his abdominal muscles which has prevented his return to work as a labourer. He has had difficulty eating and drinking, causing pain and cramps. As to his mental health, Mr Robin notes that he has become reclusive, not leaving the house and not wanting to meet new people.
Mr Sonnet who appeared on behalf of the Director of Public Prosecutions, submitted that given the nature of the assault and the resultant injuries, the offending must be viewed as serious and 'at least in the mid-range'. Without being critical of that submission, I note in that regard what the Court of Appeal has said, that classifications in terms such as 'mid-range' carries a risk that it will attract reference to current sentencing practices for offences previously categorised in a particular range thus bringing the risk of limiting the instinctive synthesis.[1] Therefore without attempting to label the offending by a classified term, in my view your offending, while not at the high end, still represents a relatively serious example of recklessly causing serious injury.
[1]DPP v Weybury [2018] VSCA 120 at [54] (Priest JA).
Personal circumstances
You are now 46 years of age.
You were raised in the Croydon area. You have an adopted sister aged 66 whom you have not had contact with for the past two years. You also have an adopted brother age 61 who you have not had contact with for the last 25 years.
You state that your mother was a cruel woman who disciplined you harshly. You are of the view that she had no interest in having children and you felt very unloved and unwanted. Your mother is now aged 96 and is assisted by community support. She is unaware of your current predicament. Your father was an alcoholic, worked long hours, seven days a week, and would spend little time with you. For example, he would often go camping on his own without you. As such, your brother played a very minimal parenting role to you. Your father passed away in 2009.
When you were aged between eight and nine, you became a ward of the state and lived in two separate homes as well as juvenile facilities. You then resided with your adoptive sister from ages 10 to 12 and your adopted brother from ages 13 to 14. You returned to reside with your parents at age 14, however, you were rebellious and often got into trouble.
You attended Mooroolbark Technical School and were expelled in Year 8 in relation to behavioural issues. You skipped Year 9 and worked for your father and brother as a labourer. Your brother then enrolled you at Boronia Secondary College and you completed Years 9 and 10.
At age 18 you commenced work as a roof plumber, however, at age 19 you were involved in a motor vehicle accident and were unable to continue your work in that field. You suffered serious injuries including significant injuries to your face. You required four surgeries to manage facial scarring and say that you felt deformed and were self-conscious in the years following the accident.
Approximately 12 months after the accident you obtained a place at Swinburne University where you completed a diploma in information technology. You have since that time gone on to obtain other qualifications including in truck driving, telecommunications, computer science, construction and business management. In the information technology field, you worked for Bayside Technologies completing NBN installations in new homes in the 18 month period before your arrest on these matters. Before that period, you were employed with Bertocchi Meats as a forklift operator for about five to seven years.
You have struggled with drug and alcohol use, using alcohol initially at age 11 which was excessive and problematic. At age 14 you were smoking cannabis and you experimented with amphetamines and cocaine following the motor vehicle accident.
You began to use ice with people you were working with at Bertocchi and you instruct that you were using ice intravenously from 2018 onwards using approximately once every two weeks before going into custody.
Whilst on bail for this matter you commenced treatment with a psychologist, however, this treatment was interrupted when your bail was revoked in May 2019. In custody you have made effective use of your time and completed a number of courses, including drug and alcohol courses. A bundle of certificates were tendered on the plea supporting your involvement in the educational courses you have undertaken. You are currently on prescribed medication including antidepressants.
You have a significant criminal history which began in 1992. Your previous offending includes a number of driving offences, drug offences, dishonesty matters, and some assault matters. You have received a variety of dispositions from the courts including suspended sentences, community corrections orders, and terms of imprisonment.
You have three children aged 28, 16 and seven to three different partners.
At the time of the offending you had been living with your current partner Linda Ornsby for the past nine years. You have lived together in your jointly owned home together with Ms Ornsby’s two adult sons. As a result of you going into custody, Ms Ornsby has struggled to meet mortgage payments and it is your intention to return to the family home upon your release and support your family.
Ms Ornsby and her two children wrote separate references to the court.
Ms Ornsby remains very supportive of you and has been visiting you at Marngoneet Prison on a regular basis which involves a three and a half hour round trip each way. Ms Ornsby was forced to cease visiting as a result of the COVID-19 restrictions. Since the restrictions were implemented, she has had regular telephone contact with you. Ms Ornsby states that your conduct on this evening is out of character with the person she knows. She otherwise describes you as a very dedicated partner, supportive of both her and her two boys. Jayden and Dylan Ornsby in their references describe how you have been very supportive to them over the years, and they have also remained supportive of you since you have been in custody.
Tristan Robin, who inflicted the wounds to you on the evening of the incident, has written a letter to the court where he laments the terrible events of the night. He states that he does not hold any grudges in relation to what happened and is sorry for his own actions. He states that he hopes that your families can remain friends and he remains supportive of you. Two further references were tendered on your behalf from close friends which speak positively of your character.
Relevant sentencing considerations
First and foremost, I take into account your plea of guilty. Your plea of guilty was entered at the committal hearing before the calling of witnesses and as such, can be considered a plea at an early opportunity. However, there are a number of unique aspects to the plea of guilty which, on the concession of the prosecution, must carry significant weight in the sentencing discretion.
The prosecution fairly submitted that the plea is unusual in the circumstances, as you have given up a real opportunity of an acquittal. In that regard the prosecution submitted to the court that the main witnesses in respect of the committal hearing demonstrated that the case would have difficulties if it was to run as a trial. The critical witnesses were reluctant to give evidence and engage in the criminal process and the prosecution formed the view that those witnesses ultimately would be unreliable and create obstacles for the prosecution. As such, it was submitted by the prosecution that any discount that you are entitled to for your plea of guilty should be the maximum available. In this sense, your plea has facilitated the course of justice in a significant way.
Over and above your plea of guilty, it was submitted on your behalf that you have demonstrated genuine remorse. As discussed above, the circumstances leading to your plea of guilty of themselves demonstrate a degree of remorse, however, in addition to your willingness to plead guilty, a letter was tendered to the court written by you to the victim in this matter. In that letter you express your deep remorse stating that you accept full responsibility and you apologise to the victim. You lament the loss of family and friendships as result of your actions and you seek Daniel Robin’s forgiveness. In the circumstances, I accept that you have expressed genuine remorse.
The other important sentencing consideration in the particular circumstances of this case is your injury suffered on the night after receiving six stab wounds to the back, together with the injuries to your head area. Mr McQuillan who appeared on your behalf, submitted that the fact that you have suffered the injury you did, required you to be admitted to hospital and undergo surgery, amounts to extra curial punishment which is able to be taken into account as a mitigating factor. Mr Sonnet did not take issue with that submission and accepted that in accordance with settled principle, it is able to be taken into account in mitigation.
Despite the unique circumstances in which this matter has resolved, your offending requires general deterrence and denunciation of your conduct to also feature in the sentencing equation. Whatever the conflict that existed at the time between you and Daniel Robin, it should not have resulted in your very serious physical assault on him. People who lose their tempers whilst under the influence of drugs in combination with alcohol, must understand the very serious consequences that may follow in terms of harm they may cause other people and ultimately, that they themselves will be facing stern sentences from the courts.
As to specific deterrence, in my view it too must be given weight in the sentencing discretion. While you do not have an extensive history of violent offending you do have a significant criminal history. You have been given numerous opportunities to address some of the issues which led to your offending behaviour and you have continued to reoffend.
You are fortunate to have a dedicated partner and family with whom you have settled into family life and who continue to support you. You have recently bought a house with Ms Ornsby and are committed to returning to work to contribute to the mortgage. You also have an excellent work history and it was submitted that work is available to you upon your release. Those facts must, however, be balanced against your significant criminal history and as such, in my view your prospects of rehabilitation must still be assessed with caution. You still need to address your drug and alcohol issues which can be a long and difficult process.
I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. In your specific circumstances where you were actively engaging in courses and counselling, I accept that the effect of the restrictions is able to be taken into account in your favour.
It was submitted on your behalf that despite the serious nature of the offending, in all the circumstances, most particularly the significant weight attached to your plea of guilty and the extra curial punishment you have suffered as a result of being stabbed, a combination sentence pursuant to s 44 of the Sentencing Act 1991 is within range. In the circumstances, Mr Sonnet did not take issue with that submission, however, noted that such a disposition is rare in cases of recklessly causing serious injury and restricted to the quite unique circumstances of your case. In other words, a combination sentence may be viewed as merciful and is not to been seen as being consistent with the type of sentence ordinarily imposed in cases of a similar nature and gravity.
While I endorse the submission of Mr Sonnet, noting that the sentence I am imposing is merciful, in the unique circumstances of this case, I also note that a community correction order is not an exercise in leniency but a punitive order in itself and in this case, it will be onerous, combining punitive and therapeutic components.
Sentence
Mr Patten please stand.
Christopher Robert Patten, on Charge 1, causing serious injury recklessly, you will be convicted and sentenced to 13 months imprisonment as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
In addition to the prison component of the sentence, upon your release you will be placed on a community correction order with conviction for a period of 3 years. The community correction order will be both punitive and therapeutic.
You will be required to complete 150 hours of community work over the period of the order.
You will be required to complete programs to further address your drug use and your alcohol use. You will be required to engage in programs to reduce reoffending and you will also be subject to supervision.
Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the program conditions may be credited as hours of unpaid community work.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 411 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore after the s 18 declaration, the result is a term of imprisonment of less than one year which complies with s 44.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 3 years imprisonment with a non parole period of 2 years.
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