Director of Public Prosecutions v Pearson

[2018] VCC 951

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00157

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW PEARSON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo and Melbourne
DATE OF HEARING:	16 February 2018
DATE OF SENTENCE:	10 April 2018
CASE MAY BE CITED AS:	DPP v Pearson
MEDIUM NEUTRAL CITATION:	[2018] VCC 951

REASONS FOR SENTENCE
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Subject:  Theft, Intentionally Causing Serious Injury, Threat to kill and others 

Catchwords:  SERIOUS VIOLENT OFFENDER

Sentence:  9 years imprisonment with a 6 year non parole period.

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APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Ms B. Bleazby
For the Accused	Mr J. Williams

1HIS HONOUR:  Andrew Pearson, you have pleaded guilty to six charges as follows:

·    one charge of theft for which the maximum penalty is 10 years imprisonment;

·    one charge of intentionally causing serious injury for which the maximum penalty is 20 years imprisonment;

·    one charge of making a threat to kill for which the maximum penalty is 10 years imprisonment;

·    one charge of resisting an emergency worker on duty for which the maximum penalty is five years imprisonment;

·    one charge of possessing a drug of dependence, cannabis, for which the maximum penalty in the circumstances alleged here is a fine or imprisonment for one year; and

·    one charge of handling stolen goods for which the maximum penalty is 15 years imprisonment.

2At the time that you were arraigned you also admitted a number of relevant prior convictions from 23 previous court appearances between 2003 and 16 November 2016.  The offending for which I am to sentence you occurred in July of 2016.  Amongst your prior convictions are convictions for crimes of violence including for having intentionally caused injury, affray, assault, and assault in company.  Most, if not all, of your offending has occurred in a background of drug use.  Specific deterrence is thus an important factor in the sentencing of you.

3The circumstances of your offending are contained in a prosecution summary dated 14 December 2018.  The summary was read in open court by the prosecutor Ms Mahady, and save for one matter your counsel Mr Williams agreed that the summary was accurate and forms a proper basis from which I can sentence you. It is not necessary that I here set out in detail that which is explained in full by the summary, and I will do so only in an abbreviated way.  These sentencing remarks should however be read in conjunction with what is contained in the summary.

4You and the victim were known to each other.  Mr Williams told me that you and the victim shared drugs together.  On 11 July 2016 you told the victim you would purchase his Hyundai car from him.  When the both of you travelled to Ballarat in the car you stole the vehicle and returned to Maryborough leaving the victim behind. (Charge 1)

5When the victim came to your house late at night to attempt to recover his vehicle and wallet and mobile phone, which were still in the car, you were asleep.  In his attempts to get your attention he broke the front window of your house.  You came to the front door in an enraged state, apparently because he had broken the window in an attempt to get your attention, and you struck the victim. 

6The summary says that you struck him with a hammer, but this is not an agreed fact.  Because of what follows it is not necessary that I decide this fact one way or the other.  The fact remains you struck the victim and then kicked him in the face.  You then grabbed hold of the victim in a headlock and you then stabbed him with a knife to the left side of the chest.  You then stabbed him a second time to the right side of the chest.  The victim begged you to stop and tried to crawl away, but you persisted.  As the victim tried to stand up you swung the knife towards his face, and as the victim put his left arm up in a defensive way the knife struck him in the elbow and lacerated his arm.  As the victim tried to get away from you, you again stabbed him, this time in the right thigh with the knife penetrating his right thigh from one side to the other.  The victim took hold of the knife and pulled it from his leg.  He continued to beg you to stop, but you did not.

7You then took hold of the victim and pushed him over the front fence of the house and onto the footpath, and you said to him that he had three seconds before you went inside to get a gun to shoot him in the back of the head. (Charge 3)

8As the victim began to crawl away from you trying to escape, you stood over him and again stabbed him with the knife in the back whilst saying to the victim, "Does this one hurt?"  (Charge 2)

9You then added, "If you lag me, I will kill each and every one in your family, your little brother Lachlan, I will cut your little brother Lachlan up into dog food and slaughter your parents."  (Charge 3)  You told the victim you knew where he lived and walked off towards your house laughing as you did so.  You apparently at the time got some perverted enjoyment at the predicament confronting the victim because of your actions.

10The victim was able to get help from a nearby McDonald's restaurant.  He was taken to Ballarat Hospital and police were alerted.  The police arrived at your home the next morning with a warrant where they found you hiding under a bed.  You resisted arrest by kicking at the police (Charge 4).  A search of the house located some cannabis (Charge 5) and a Honda motor cycle that had been reported stolen some time much earlier. (Charge 6).

11This was a vicious and prolonged attack by you upon the victim who suffered serious stab wounds after you stabbed him with a knife at least five times.  The full extent of his injuries is set out in the summary.  Amongst other consequences of the stabbing injuries he suffered a right pneumothorax with a laceration to the lung, and it is fair to say he was lucky to have survived.  Of the multiple injuries the most severe were the penetrating wound to the right chest wall causing the pneumothorax, and the deep laceration to the right thigh.  The victim was hospitalised for eight days during which he was intubated and transfused on four occasions.  He required surgery several times for the chest and thigh injuries.

12After discharge he required months of physiotherapy and had to avoid physical activity for six months.  I received into evidence victim impact statements from the victim and his mother.  The devastating ways in which your crime has impacted upon both the victim and his family are there to be seen.  Not only did you inflict serious physical injuries to the victim but it is obvious he continues to suffer from a severe psychological impact of those injuries and the attack that you put upon him.  In passing sentence I have taken the victim impact statements into account, as I must.

13Mr Williams submitted that your offending falls to be assessed in the mid-range of offence seriousness.  He conceded that your attack upon the victim was a sustained one, involving as it did the use of a knife and you inflicted serious injuries upon the victim.  But he argued your offending was spontaneous and not a planned attack which occurred only after the victim came to your home late at night and smashed a window.  

14He conceded your actions were a gross overreaction, and he submitted that there is no evidence of the victim having sustained permanent physical disability as a consequence of your actions.  He also submitted, and I accept, that your attack upon the victim can be distinguished from a random attack.  Whilst I generally accept these submissions they do little to mitigate from the seriousness of your crime in Charge 2.

15In my judgement your offending in both Charges 2 and 3 in particular is very serious.  You should consider yourself fortunate not to have been facing more serious charges.  You knocked the victim to the ground before repeatedly stabbing him with a knife in circumstances where the victim was unarmed, had not provoked you physically and was repeatedly begging you to desist. 

16Then, having impressed upon the victim your obvious capacity for violence, you threatened to kill him and members of his family.  In my judgement your offending in Charge 2 is above mid-range, but not at the top end of the range for this kind of offence.  The threat to kill charge is also a serious example of what is a serious offence.

17You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty you have saved the time, and costs of what might have been two trials.  Importantly, you have saved the victim of your crimes from having to give evidence at trial, and from having to relive the terrible circumstances in which you inflicted serious injuries upon him.  By your pleas of guilty you have thus facilitated the course of justice.

18You were arrested and charged on 13 July 2016 and you were remanded in custody and have remained in custody since that time.  I accept there was an early acceptance of your responsibility by you.  When you apparently accepted the enormity of the consequences of your actions you tried to ingest 15 tablets whilst hiding from police under a bed in an attempt at suicide.  You later spat these tablets into a bucket.

19There was a contested committal at Bendigo on 2 February 2017 at which time you were charged with intentionally and/or recklessly causing serious injury in circumstances of gross violence.  It was the gross violence allegation that was then in contention.  On 17 July 2017 your legal advisers made an offer to settle the charges with the prosecution, which was rejected.  The prosecution subsequently agreed to accept a plea of guilty to the charges now on the indictment and this was accepted on your behalf on 20 July 2017.  Notwithstanding that there was a contested committal I treat you as having indicated that you would plead guilty at an early stage in the criminal process.  For that you are entitled to a reduction in sentence and this reduction will be reflected in the sentence that I will shortly pass.

20Further, I treat your pleas of guilty as evidence of your remorse for your offending.  When interviewed by psychologist Warren Simmons, whose report I admitted into evidence as Exhibit 2, you expressed appropriate remorse and appropriate empathy for the victim and his family.  I have taken all of this into account.

21I turn to some matters related to your background and personal circumstances.  You are about to turn 33 years of age and you were 31 at the time of offending.  You grew up in Melbourne’s north eastern suburbs and your parents separated when you were aged 3.  You remained with your mother and you have a younger brother now aged 29.  As a child you were diagnosed ADHD and with oppositional defiant disorder.  Your education was at local schools.  Because of behavioural difficulties you were sent to live with your father in New South Wales for your secondary schooling and ultimately you left Croydon High School at age 15 because of behavioural and disciplinary issues.  You have had spasmodic work as a car detailer, a painter and factory work, but most of your adult life has been characterised by unemployment and welfare dependence.

22You are a single man with two children aged 11 and 3 from your relationship with a woman Melissa from whom you separated in 2016 before your remand.  You have a close relationship with your children, both of whom are presently in the care of your mother.  You have regularly been visited whilst on remand by your mother and your children.  I accept that being separated from your children has been stressful for you.

23You have been a long term drug user.  You commenced using cannabis aged 13 and you continued to use this all your life up until your remand.  In your early 20s you developed a heroin addiction for four years before you entered the methadone program which I was told you have been on for some 12 years.  You have also been a heavy user of methylamphetamine since your late teens and you were a heavy user of these type of drugs at the time of offending.  Whilst you had not used on the day of offending you were suffering the effects of recent methylamphetamine use, not having slept for several days leading up to the offending.  This helps to explain your offending.  It does not excuse it.  You have also in the past used other drugs and alcohol.

24Whilst in custody on remand your father has died and you were unable to attend his funeral and you have been unable to mourn his passing in a way that you would have preferred making your time in custody on remand more difficult for you.

25I was told and accept that whilst on remand you have established a routine.  You are a leading hand in the workshop at Hopkins Correctional Facility.  You have a cell on your own, but whilst on remand you are unable to engage in programs that might assist your rehabilitation.  You are on a wait list for these programs.  I was told and accept that you have used your time to work on your health and you have remained drug free.  Your ambition is to be the best father for your children that you can be upon your release.

26Mr Williams conceded that your offending warrants the imposition of a significant term of imprisonment as the only option.  Mr Williams did not rely upon Verdins principles, but he pointed to a history of psychological difficulties outlined in the Simmons report.  He did submit that these difficulties need to be taken into account in framing the sentence of imprisonment because they are likely to bear upon how you will serve the sentence.

27You self-reported to Mr Simmons that you were diagnosed at a young age with ADHD.  Approximately nine years ago you were diagnosed suffering anxiety and you apparently attended a psychiatrist in Croydon and prescribed Alprazolam and Seroquel.  You told Mr Simmons you have experienced some anxiety and depressive symptoms during your remand which appear to have arisen as a reaction to your gaoling.  I have taken all of this into account.  In my judgment the evidence of your anxiety and depression or of suffering from ADHD does not mean that you will find a term of imprisonment more burdensome than other prisoners, and in my view a reduction in sentence for these reasons is not justified.

28Your counsel Mr Williams filed a helpful outline of submissions in writing which I marked as Exhibit 1.  He conceded the seriousness of your crimes and acknowledged that the victim impact statements eloquently speak to the effect that your offending has had.  He also conceded that the sentence I impose must properly reflect proper application of the principles of general and specific deterrence given your prior history.

29In mitigation Mr Williams relied upon the fact you have pleaded guilty to the charges and your remorse and contrition.

30In offending of this kind the sentence imposed must reflect proper application of the principles of general and specific deterrence.  Specific deterrence is an important factor here because you have prior convictions for offences of violence. 

31Those who would seek to offend as you have must be deterred from doing so by the sentence passed by the courts.  The sentence must also have proper regard to the principle of just punishment and must appropriately serve to denounce your offending.  The sentence here must also take into account the need to protect the public.

32I must also have proper regard to your prospects for rehabilitation.  In your case your prospects for rehabilitation must be guarded.  This is because they very much depend upon you not using drugs outside of a prison setting and I am conscious of the fact that sentences previously imposed upon you for acts of violence have not stopped you from reoffending.  I am of the opinion you are remorseful as I have said, and that is a good starting point, and you appear to have family support from your mother. Your grandfather was also in court to support you.  I note that Mr Simmons was also of the opinion that your prospects for rehabilitation appear to be guarded.

33In addition to the sentencing principles which ordinarily apply, because I will sentence you to a term of imprisonment on Charge 2, you will be sentenced on Charge 3 as a serious violent offender within the meaning of s.6B of the Sentencing Act 1991.  In determining the length of any prison sentence imposed on Charge 3 where you fall to be sentenced as a serious violent offender for a serious violent offence, protection of the community from you must be the principal purpose for which the sentence is imposed.  In order to achieve that purpose I may impose a sentence longer than that which is proportional to the gravity of the offence considered in the light of their objective circumstances, within s.6D of the Act. 

34This does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of my discretion I consider that the circumstances before me make it appropriate to do so for good reason.  I do not consider that a disproportionate sentence is called for.  In my view, the overall effective sentence I propose will properly and adequately provide for protection of the community.  I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence on Charge 3. 

35Section 6E of the Act provides that every term of imprisonment imposed on you as a serious violent offender for a serious violent offence must, unless otherwise directed, be served cumulatively on any other sentence I impose on you.  In respect of the sentence I impose on Charge 3 I will make some of that sentence cumulate upon the sentence I impose on Charge 2, the base sentence, which I regard as appropriate taking account of all the circumstances of this case. 

36Further, pursuant to s.6F(1) of the Sentencing Act 1991 I am required to record the fact I have sentenced you on Charge 3 as a serious violent offender within s.6B of the Act and had the fact that I have done so entered into the records of this court.  I direct that be done.

37On Charge 1 you are convicted and sentenced to a term of imprisonment of six months.

38On Charge 2 you are convicted and sentenced to a term of imprisonment of eight years.

39On Charge 3 you are convicted and sentenced to a term of imprisonment of two years.

40On Charge 4 you are convicted and sentenced to a term of imprisonment of six months.

41On Charge 5 you are convicted and discharged.

42On Charge 6 you are convicted and sentenced to a term of imprisonment of 12 months.

43I direct that one year of the sentence imposed on Charge 3 cumulate upon the sentence imposed on Charge 2 making a total effective sentence of nine years imprisonment.

44I direct that you serve a minimum term of six years before being eligible for parole.

45I declare that there has been 551 days pre-sentence detention of the sentences passed this day and I direct that 551 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and deducted administratively.

46For the purposes of s.6AAA of the Act I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of 12 years and I would have fixed a non-parole period of eight and a half years.

47I have been asked to sign a disposal order relating to various items.  This application by the prosecution was not opposed and I have signed the order.

48I have been asked to make a forensic sample order under s.464ZF of the Crimes Act 1958.  The making of that order was not opposed and for the reasons stated in the order I have signed it, which means that whilst in custody you may be approached by a member of the police force and asked to furnish a forensic sample from your body which is a swab from your mouth.  If you refuse a police officer may use reasonable force to take the sample from you.

49Having been convicted on Charge 1 s.89(4) of the Sentencing Act 1991 is enlivened and I must cancel your licence to drive a motor vehicle.  Accordingly any licence that you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence to drive a motor vehicle for a period of 12 months from this date.

50Are there any questions arising out of that, Ms Bleazby?

51MS BLEAZY:  No, Your Honour.

52HIS HONOUR:  Mr Williams?

53MR WILLIAMS:  No, Your Honour.

54HIS HONOUR:  Mr Pearson, thank you, I am going to terminate the transmission.

55OFFENDER:  Thanks, Your Honour.

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