Director of Public Prosecutions v Power
[2022] VCC 2324
•15 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-00848
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KACEE POWER |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 November 2022 |
| DATE OF SENTENCE: | 15 December 2022 |
| CASE MAY BE CITED AS: | DPP v Power |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2324 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of recklessly causing serious injury – offender stabbed victim to the chest – victim suffered life threatening injuries – consideration of family hardship if term of imprisonment imposed – impact of delay of proceeding – delay used profitably by offender – good character post offence date – general deterrence and denunciation important sentencing facts
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v R [2021] VSCA 169; Markovic v R [2010] 30 VR 589; R v Wirth (1976) 14 SASR 291; DPP v Jackson [2022] VCC 1643; DPP v Ewaz [2016] VCC 1507; DPP v Linton [2020] VCC 515; DPP v Black [2022] VCC 650; DPP v Bayamis [2016] VCC 5; Boulton v R [2014] 46 VR 308; DPP v Reynolds (a pseudonym) [2022] VSCA 263
Sentence: Community Correction Order for period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Pickering | Office of Public Prosecutions |
| For the Accused | Ms K. Ballard | Slade and Parsons |
HIS HONOUR:
Introduction
1Kacee Power, you have pleaded guilty to a charge of recklessly causing serious injury on 17 February 2018.
2At the outset, subject to your consent, I propose to convict and sentence you to a community correction order of three years duration with these conditions.
(a) to perform 250 hours of unpaid community work;
(b) to undergo assessment and treatment (including testing) for drug abuse or dependency;
(c) to undergo any mental health assessment and treatment; and,
(d) to be supervised, monitored and managed as directed.
3I will also direct that all hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
4The circumstances of your offending are set out in a document entitled, 'Summary of Prosecution Opening', which is Exhibit A. These circumstances are agreed by your counsel as correct.
Circumstances
5On 16 February 2018, you and a friend went to a brothel in Moorabbin seeking and obtaining work. You had few clients. As the time went by, you became more aggressive and said: 'If anyone pisses me off, one more person, I'm going to fucking kill them.'
6The victim was a regular customer of the brothel. He attended it some four hours after you. Whether in the carpark to the brothel or inside the brothel, you and the victim argued. The cause of the argument is disputed. You say it arose because he touched the area of your vagina and anus over your clothing. He says he did not want you for sex because you were fat. Certainly, you were heard accusing the victim of touching your bottom in vulgar terms, calling you a ‘fat bitch’ and laughing at you.
7Pausing there, I am satisfied the argument started because the victim touched the area of your vagina and bottom. At the committal hearing, he did not deny touching you in that manner, saying, 'I don't know, but I don't remember.' These actions were provocative, intensifying your existing anger, causing a prolonged argument between you and him.
8The brothel's manager told both of you to stop arguing while inside the premises. Both of you continued arguing and went outside. The victim started walking away as though to leave the premises. You were holding a sheathed knife. You removed it from the sheath and waved it around. Both of you were still arguing and swearing at each other. Ultimately, you stabbed the victim once to the chest. He said, 'What the fuck are you doing?', to which you replied something like, 'Fuck off cunt.' The victim realised his injury was serious. He tried unsuccessfully to stop passing vehicles. He fell to the ground and became unconscious. He was later taken to the Alfred Hospital by ambulance. The knife you used was about 35 centimetres long. Its blade was 19 centimetres long and two centimetres wide.
9Your friend drove you home. Shortly afterwards, you were arrested. You made innocuous admissions and, in effect, denied stabbing the victim.
10According to the ambulance officers, the victim would have drowned in his own blood if they had arrived two minutes later.
11Owing to the penetration of the knife, the victim suffered injuries to a lung, diaphragm and liver. He lost between one and two litres of blood. He suffered a tension hemopneumothorax. This condition meant his heart was unable to pump blood effectively and would have caused the victim's death imminently except for medical intervention. The victim was placed in a coma and operated upon.
12Pausing there. The concept of ‘serious injury’ in the charge is defined to include endangering life where there is no medical intervention. What happened to the victim endangered his life. In terms of a ‘serious injury’, the injury suffered by the victim was at the highest level. Without the intervention of the ambulance officers and the medical staff at the hospital, the victim would have died.
13There is no victim impact statement. I do not know how the victim has fared since his discharge from hospital. What I do know is the opinion of Dr Maaike Moller from the Victorian Institute of Forensic Medicine that he, that is the victim, will have permanent scaring on his chest and, more importantly, he is at risk of long term sequelae such as the recurrence of a collapsed lung.
Personal
14You are now 27. You are single. You have three sisters, two of whom are older than you. At present, you live in Heathcote with your mother and three year old daughter. You live on a 40 acre property owned by your father. Although estranged from your mother, apart from the accommodation, your father provides financial assistance to you and your mother. Owing to your mother's ill health, you are her carer and receive a carer's benefit. If you are imprisoned, your mother would be unable to care for your daughter and one of your sisters would do so. Certainly, the father of your daughter will not assume that responsibility. He has had no contact with your daughter for some time. It is unclear who would care for your mother but I dare say one of your sisters would.
15Your parents separated when you were in the first year of secondary school.
16
Your schooling was disrupted. Owing to being overweight, you were bullied in primary and secondary schools. You were expelled from the two secondary schools you attended. The second expulsion occurred at the start of your
Year 11. That represented the extent of your formal education.
17Your time at school was complicated by the knowledge your father was a member of the Rebels motorcycle club.
18After leaving school, you worked at a KFC restaurant and undertook a course in aged care, which you completed. Your mother became ill in 2014 and you left KFC to care for her. In November 2014, your mother underwent surgery to remove a tumour from her brain.
19Between 2014 and 2017, you cared for your mother. Nevertheless, in that period you worked as a sex worker.
20In March 2017, you left the home after your father demanded you do so. According to you, he did so because he became aware of your relationship with a boyfriend and his belief you used methylamphetamine. This was the first time you had left home; you lost your carer's benefit and became homeless. A friend suggested you work in a brothel, which you did. However, you used cocaine to cope with the emotional effect of working as a sex worker.
21At the time of this offence you were addicted to cocaine and cannabis. As the psychologist, Guy Coffey, recorded:[1]
‘Ms Power said her drug use was very heavy when she was a sex worker. She used a gram of cocaine a day (costing about $350) and seven grams of cannabis a day ($90). She would use cocaine heavily for three days and then stop for a day in order to be able to sleep. She said cocaine would make her more outgoing and confident but also distrustful; for example, she would often mistakenly think some of the women she worked with had said derogatory things about her. She said when not using she would feel desperately unhappy, “sad and worthless”. She sometimes felt suicidal but did not harm herself.’
[1] Report of Guy Coffey dated 16 November 2022 at [29]
22Following your arrest and bail, you have lived in Heathcote with your mother and resumed caring for her. You had occasional contact with your boyfriend, which led to the birth of your daughter, Sarah[2], in July 2019. The father wants nothing to do with his daughter. You have stopped using cocaine but continue to use cannabis occasionally.
[2] A pseudonym
23At present, you run the household and the farm. Running the household involves you cooking for your mother and daughter and keeping the house in order. In a letter dated 22 November 2022, your mother explains the nature of her reliance upon you:[3]
‘I myself rely on Kacee for when I attend regular doctor’s visits and hospital appointments due to me not being able to understand and retain the information provided to me by health professionals, I also rely on her to accompany me to the shopping centre to do my grocery shopping due to the fact that I cannot be alone when in public as sometimes due to my brain condition I can forget where I am and also leave behind personal belongings I have left behind my car keys, purse and my phone in the past due to me forgetting I had them with me in the first place.
I am not in a position to care for myself or Kacees daughter Kenzeigh if Kacee was to receive a term of imprisonment I would struggle with attending appointments that are necessary for my condition that I live with every day. I rely on Kacee to be home with me as I can struggle with my day to day life as I can forget I have left on kitchen appliances, feel overwhelmed with daily activities and due to feeling unwell can also struggle with things like showering, using the bathroom and cleaning.’
[3] Reference dated 22 November 2022
24It appears Sarah herself has a heart condition requiring medical attention. Nevertheless, if you are gaoled, I believe your family would strive to care for Sarah and your mother.
25Running the farm involves you in caring for what Mr Curry calls a menagerie of animals including alpacas, goats, sheep, emus, horses and geese.
Psychologist
26Mr Coffey is a clinical psychologist. At the request of your solicitors, he interviewed you on four occasions over eight hours during November 2022.[4] His report is one of the most detailed I have read.
[4] Report dated 16 November 2022
27Reading the report, Mr Coffey tried to gain your explanation of the actual stabbing:[5]
‘The account Ms Power provided me as to what happened next differs from the description in the prosecution opening. She told me the manager told her that she had called the police and that they would deal with the situation. She said she and the victim continued to argue in the carpark and in the street outside the premises. She said that they began to fight physically exchanging blows until he fell back and desisted and walked off. Ms Power denied that she had possession of a knife or other weapon prior to physically fighting with the victim. She said she doesn’t know how she came to stab the victim during the physical altercation or where the knife came from.’
[5] At [36]
28Mr Coffey explained your professed lack of memory in either of two ways: an unwillingness to describe; or, an avoidance of memory through suppression. However, he does not believe this failure is relevant to your capacity for self-control when you offended or your level of remorse now.
29Mr Coffey considered your risk of violent reoffending or even other criminal offending was low provided you continue to care for your daughter and mother, continued a structured daily routine of worthwhile activity and abstained from using illicit substances. He considered you would be able to continue your rehabilitation.
30He recommended psychological treatment and vocational guidance. As to the former, he said:[6]
‘…Ms Power has never received any systematic mental health treatment. She does not suffer from a formal mental disorder but she has many sources of developmental vulnerability and areas of her past that continue to cause her distress. Her self-esteem and confidence are fragile. The sequelae of childhood bullying, her family’s unusual circumstances, the abuse she received while a sex worker and her violent offending all need to be understood for her to reach a point of stable mental health. She has expressed a desire to receive counselling around building her maternal confidence and skills. She also requires offence specific counselling: she has not reconciled how she committed such an offence, and she should be assisted in strengthening her ability to manage conflict.’
[6] At [96]
Discussion
31Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets of the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of a type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
32The offences of causing injury or serious injury intentionally or recklessly are a common occurrence in the criminal courts of this State. The sentencing purposes of general deterrence, specific deterrence, denunciation and the protection of the community must be considered. General deterrence is obviously important as is the denunciation of the offence.
33For you, specific deterrence and protecting the community from you are of much less significance. Rehabilitation is an important consideration because of your age and the progress you have made since committing these offences. The experience of the courts shows that the capacity of young offenders to be rehabilitated. Over the years since the offence, you have made important steps to rehabilitating yourself. I note Mr Coffey's opinion on this point. Apart from an instance, you are no longer a sex worker. Again, apart from the occasional use of cannabis, you no longer use illicit drugs. Overall, I consider your prospects of rehabilitation are excellent.
Delay
34
The startling feature of this case is the delay. The offence occurred on
17 February 2018 and I am now sentencing you on 15 December 2022,
four years and 10 months later. Apart from the six days in custody, you have spent the time on bail. You have complied with the conditions of your bail. There are two essential conditions of any grant of bail: to answer it, and to remain free of offending during the time on bail. You have complied with both.
35
I have examined the course of this proceeding in the courts from the first appearance in the Magistrates’ Court on 22 February 2018 until
22 November 2022, there were 20 listings of the proceeding. There was a committal hearing on 1 May 2019. There was a trial listing which was adjourned because of the restrictions caused by the pandemic. I understand the proceeding was further adjourned to allow your solicitor to obtain Mr Curry's psychological report. I do not consider either you, your lawyers or the prosecution bear any responsibility for this delay.
36For any young person, a great deal can happen over nearly five years and that has been your situation. You have resumed the care of your mother. Her ability to perform some of the tasks of normal daily living is unreliable. She needs help which you provide. You have given birth to your daughter. You care for her alone since the father will have nothing to do with her. Given her age, separation through your imprisonment would have a significant impact on both of you. Your father provides you accommodation in the form of a 40 acre property, which you tend as well as keeping a collection of animals.
37At 27, you have plans for the future. Imprisonment would set them back considerably.
Maximum Penalty
38
The maximum penalty for the offence of causing serious injury recklessly is
15 years imprisonment.
Gravity of the offence
39If not for the intervention of the ambulance officers and hospital staff, the stabbing would have killed the victim. Despite your inability to describe what actually happened, it is clear you stabbed the victim in the circumstances described in Exhibit A and you possessed the knife during your argument with the victim.
40Before the stabbing, you were angry and saying so to others. The victim did provoke you through his misbehaviour. In her outline of submissions, your counsel described your situation as, 'a vulnerable sex worker, sleeping rough in her car and using drugs to cope with the grim reality of her job. She was 22 years old.' I accept that description.
41You stabbed the victim once. There was no repeated stabbing which one sees from time to time. But you used a knife with a blade of some size. Stabbing the victim in the chest with such a knife will inevitably cause significant injury. Your guilty plea acknowledges as much. Overall, this is a serious example of the offence of causing serious injury recklessly.
Guilty Plea
42As I said earlier, this proceeding has taken a long time to reach my sentence today. In terms of timing, your guilty plea comes late in the process starting with the laying of the charge and potentially ending with a verdict of a jury.
43By pleading guilty to the charges you have accepted responsibility for the offence. You have avoided a trial by jury saving the time and expense of such a trial. Even in the later stages of the effects of the virus, it is still creating significant difficulties in conducting such trials. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in the trial, especially the victim although I note he gave evidence at the committal hearing. These considerations have what is described as a utilitarian or practical benefit to the criminal justice system. The value of that benefit has been enhanced even now.
44Presently, pleas of guilty deserve a greater discount on sentence. Why this is so is explained in the case of Worboyes v R[7] where the court said:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[7][2021] VSCA 169 at 35
45Your plea of guilty requires a very significant discount on the sentence.
Good Character
46Until the commission of this offence, you enjoyed good character. Since its commission you have remained so apart from the occasional use of cannabis. The latter is also tempered by the fact that you were on bail and that required good character in the sense of not reoffending.
Hardship
47
Your counsel relied on the hardship which your imprisonment will cause to your daughter and your mother. Both counsel referred to the case of
Markovic v R[8]where the court reaffirmed the position that it is only in exceptional circumstances a court will exercise mercy in sentencing a person on the basis that imprisonment is likely to cause hardship to members of that person's immediate family or other dependants.
48The expression ‘exceptional circumstances’ occurs in legal contexts, both legislative and judicial. The meaning of ‘exceptional’ can vary according to the context in which it is used. The court in Markovic's case quoted with apparent approval, this case is from the judgment of Wells J in R v Wirth[9]:
‘But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so…For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steelyhearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.’
[9](1976) 14 SASR 291 at 296
49Accordingly, ‘exceptional circumstances’ in the case of family hardship must been seen as a rarity.
50You care for your mother and your daughter. Your mother needs some help in her daily living activities. Your daughter is only three. There is a suggestion she has a heart condition. If you are imprisoned, one of your sisters would care for your daughter and, I daresay, your mother. Your daughter is very young. Separation from her will cause both of you significant emotional harm. However, collectively, these are not exceptional circumstances for the purposes of family hardship. The breaking of the bond between mother and child is most unfortunate for both you and the child. With the child, its breaking is irrelevant but with you, it is significant.
51As the judges in Markovic's case pointed out, the effect upon you of the hardship caused to your family members by your imprisonment is not subject to the exceptional circumstances test. Separation from your daughter and mother will cause you considerable distress. As Mr Coffey noted:[10]
‘The one exception to her matter of fact demeanor occurred for a few minutes in the third interview when we spoke about the frustration and distress that waiting over four years for the resolution of her case has caused her and her fears about being imprisoned: she became agitated and sobbed.’
[10] Report at [82]
52Only the separation from your daughter and mother will make your time in prison harder to bear. It is a strong mitigating factor.
Current Sentencing Practice
53
The Sentencing Advisory Council produced a ‘Sentencing Snapshot’ for this offence. It summarises the sentencing outcomes for the offence in this Court and the Supreme Court from 2016-17 to 2020-21. It examined the sentences of
190 persons where the offence was the most serious of the offences charged against those persons. 159 persons or 83.7 per cent of the total received sentences of imprisonment. Of those 159, 40 received a combination of imprisonment and a
community correction order or fine. Four persons, that is 2.1 percent, received detention in the form of a Youth Justice Centre order. 18 persons, or 9.5 percent, received a community correction order.
54For those persons receiving a non-aggregate sentence of imprisonment, the median length of the sentence was three years and eight months. In the peculiar time of the effect of the virus, the Snapshot does not distinguish between sentences imposed following a plea of guilty and those that are not.
55Although a non-custodial sentence is an unusual outcome for this offence, your counsel referred to sentences of judges of this Court where non-custodial and combined sentences were made: DPP v Jackson[11], DPP v Ewaz[12], DPP v Linton[13], DPP v Black[14] and DPP v Bayamis[15]. I have read the sentencing remarks for each of those cases.
[11] [2022] VCC 1643
[12][2016] VCC 1507
[13][2020] VCC 515
[14] [2022] VCC 650
[15][2016] VCC 5
[8][2010] 30 VR 589
Community Correction Order
56Your counsel submitted a community correction order was an appropriate sentence for you. The Director's counsel submitted it was not and imprisonment was the only appropriate sentence.
57Your counsel referred to the judgment of the Court of Appeal in the case of Boulton v R:[16]
‘Axiomatically, imprisonment is a sentence of last resort. As s 5(4) of the Act makes clear, such a sentence must not be imposed unless the court considers
that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
[16][2014] 46 VR 308 at [111] to [115]
Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender’s ‘just deserts’ for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence for the community.
The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
The CCO option offers the court something which no term of imprisonment can offer,[74] namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.’
[17][2022] VSCA 263 at [108]
58
As noted very recently by the majority in the Court of Appeal in the
DPP v Reynolds (a pseudonym):[17]‘The punitive effects of a CCO (even of some duration and with onerous conditions) cannot be compared with a gaol sentence. Imprisonment is ‘uniquely punitive’ principally because it involves ‘the complete loss of liberty’. As a sanction, imprisonment gives the greatest prominence to the punitive and deterrent aspects of sentencing.’
59General deterrence and denunciation are import considerations here. People simply cannot use knives to inflict injuries on others. Your offence is unacceptable and must be seen as such through my sentence.
60On the other hand, the delay has been enormous. You have used the time profitably by weaning yourself of drugs, by caring for your mother and daughter and running the farm. You were before and have been since offence free.
61I have received a community correction order assessment outcome report, dated 12 December 2022. Somewhat surprisingly you are assessed as a medium risk of reoffending. Whether this assessment is based, in part, on your ambivalence over stabbing the victim, I do not know, but the comment has not prevented the conclusion of the assessor of your suitability for an order. I am still prepared to accept that recommendation. The recommendation conveys not only your ability to complete the order but it also conveys that the order will in fact make a difference for you.
62
I have also received a report of Ms Hughes, a registered nurse, from the
Mental Health Advice and Response Service, recommending a mental health condition to address your low mood, anxiety, post-traumatic stress disorder. Such a condition would assist with you undertaking drug counselling and abstaining from drug use.
Sentence
63As I said at the outset, on the charge of causing serious injury recklessly, subject to your consent, you will be convicted and sentenced to a community correction order of three years duration with these conditions:
(a) to perform 250 hours of unpaid community work;
(b) to undergo assessment and treatment (including testing) for drug abuse or dependency;
(c) to undergo any mental health assessment and treatment; and,
(d) to be supervised, monitored, and managed as directed.
64All hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
65Stopping there for the moment, Ms Ballard, would you ascertain whether your client consents to such an order?
66MS BALLARD: Yes, she does.
67HIS HONOUR: All right. I will make it.
68MS BALLARD: Thank you, Your Honour.
Forfeiture Order
69I will make the forfeiture order in the terms sought.
s6AAA Declaration
70Finally, if you had not pleaded guilty to the charge and had been found guilty following a trial, I would have sentenced you to two years imprisonment and set a non-parole period of 14 months imprisonment.
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