Director of Public Prosecutions v Rosendahl
[2023] VCC 997
•8 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 23-00286
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAIYAH ROSENDAHL |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2023 | |
DATE OF SENTENCE: | 8 June 2023 | |
CASE MAY BE CITED AS: | DPP v Rosendahl | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 997 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Intentionally causing serious injury – High objective seriousness - Contravene family violence order – Substance abuse – Youth – Early plea
Legislation Cited: Crimes Act 1958 (Vic) & Sentencing Act 1991 (Vic).
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; Marrah v The Queen [2014] VSCA 119 & Director of Public Prosecutions v Hermann [2021] VSCA 160.
Sentence: Six years and 10 months imprisonment with a non-parole period of three years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Kerlin | Office of Public Prosecutions |
| For the Accused | Mr M. Allen | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Mr Jaiyah Rosendahl, you have pleaded guilty to one count of causing serious injury intentionally contrary to section 16 of the Crimes Act 1958 (Vic). The maximum penalty for this offence is 20 years' imprisonment.
2At the time of the offending, you were 23 years of age. The victim, Mr Lucas, was 40 years of age and known to you. There was no indication of earlier difficulties between you. On 21 August 2022, you and others were socialising. I am told you started drinking alcohol at about 11 am. You were in the company of your partner, Ms Roach-Pierson, contrary to the requirements of a family violence intervention order.
Circumstances of offending
3I turn now to the circumstances of the offending. At approximately 5.10 pm, you , your partner and your nine-month-old child arrived at the Symphony Restaurant - an establishment owned by your mother. The victim and his friends had been there since bout 2 pm. Throughout the late afternoon, your group and the victim's group interacted with each other. It seems that there were no apparent problems.
4
At around 6.44 pm, you walked Ms Roach-Pierson and your child home. You returned to the restaurant almost immediately and started buying shots of alcohol from the bar for Lucas and his friend. Lucas declined the offer.
You verbally accused Lucas calling him a 'pussy' and said that he was ‘weak’. He took exception to the abuse and asked you to stop. You responded, by asking whether Lucas wanted to fight and asked him to go outside.
5
You then walked out the front door of the restaurant followed by Lucas. In the carpark, without warning, you suddenly turned around and stabbed Lucas in the chest just below the ribcage. He grabbed you and began to wrestle with you. You struck him with a knife again in his left hip causing him significant pain. He felt his chest wet with blood.
You ran away.
6
Lucas sought assistance from inside the restaurant. Police and ambulance responders arrived about 7.44 pm. Lucas identified you as his attacker and was transported by air ambulance to hospital in a critical condition. After the event, you returned to your residence and then left your vehicle. You were arrested at your home just after 9 pm that evening. One black–handled knife approximately
20 centimetres in length was located in your vehicle. You have been in custody since then.
7
No immediate admissions were made by you, however, you pleaded guilty in
February this year prior to a committal hearing.
Injuries
8
When admitted to hospital, Lucas suffered a critical drop in his blood pressure on account of significant blood loss. He was assessed as having the following injuries: a stab wound approximately 2 centimetres wide with a depth of
6–7 centimetres in his right sternum; and one stab wound to his left lower abdomen. Lucas was critically unwell and minutes away from cardiac arrest. He was rushed into emergency surgery with significant internal bleeding requiring a catheter to be inserted.
9
Following surgery and several days recovery, he was discharged on
26 August 2022.
Victim Impact Statement
10Mr Lucas has provided a lengthy Victim Impact Statement in which he details the significant personal, psychological, physical and financial detriments he has experienced over the last 10 months. Every aspect of his life has been substantially impacted. The consequences are those that would be expected and anticipated from such violent behaviour. His death would have occurred had medical assistance not been promptly administered. The court will keep these very serious long term consequences of the offending in mind.
Objective seriousness and relevant sentencing principles
11
The following matters have non–exhaustively been taken into account in assessing the gravity of a particular incidence of causing injury intentionally: An offender's proven intent, that is whether to cause serious injury, really serious injury or the maximum possible injury;
The seriousness of the injury actually caused encompassing both the immediate and long term consequences for the victim; The vulnerability of the victim. Whether a weapon was used; The duration of the attack and whether the offender acted alone or in company.
12Your use of a knife is a further serious aggravating circumstance and, of course , its use resulted in the seriousness of the injuries. It was submitted by the prosecution that you must have had this weapon in your possession prior.
13This is an inference that can be drawn, but does not necessarily point to planning for this particular offence.
14The prosecution further contend that you have had a motive of retribution for the unprovoked attack, but in the circumstances of this case and your plea accepting intent, this is not a necessary matter for the court to consider.
15You accept by your plea, an intent to cause serious injury. By the use of a knife and the initial stabbing in the chest, it can be inferred that your intent was to cause really serious injury. The event occurred in a public place, a car park, with the potential for members of the public to witness the violence. Now that is an aggravating circumstance. Further, the seriousness of the injuries inflicted on Mr Lucas is of the highest order. The injuries were immediately life–threatening and required prompt surgery. I observed a chest wound of approximately 6 or 7 centimetres deep. These circumstances amount to a high order of seriousness for the offence charged.
16Further, as canvassed, the long term consequences for Mr Lucas are significant, both physically and psychologically.
17It was submitted that at the time of your involvement in the attack, Mr Lucas was in a vulnerable position due to him being unarmed. He was not armed, but this mismatch in weaponry does not amount to vulnerability as is meant in relevant cases. Nor the fact that the stabbing was unexpected. The frequency of such circumstances in cases such as this is noted.
18
While the attack lasted a short time, that was due to the fact that you disabled
Mr Lucas almost immediately by the ferocity of your attack. This does not assist you. Although it is noted that you left when it was clear that the victim was seriously disabled.
19Of concern in this matter is the fact that just 11 days prior to the commission of this offence in August 2022, you were sentenced in the Magistrates' Court for recklessly causing injury, an offence which apparently occurred nearly two years prior in October 2020. Prior to being placed on that supervised order, you gave information to that court indicating that you had undertaken significant counselling.
20Your counsellor, Mr Cronin, reported that you had understood the triggers for your offending and were addressing those issues. Clearly, this was untrue. But your supposed presentation convinced that court to place you on a supervised order. This offence breaches that order. It is an aggravating circumstance of this offending.
21
You were no doubt aware that as part of the conditions of your supervision, you were required to be of good behaviour. It is very worrying that such a short time later, you attended a licenced premises and you had apparently been drinking alcohol all day. You were also armed with a knife and you ultimately used it.
Your commitment to modifying your behaviour must be questioned in those circumstances.
22While I acknowledge that you did not have any time within which to be supervised on the previous Community Corrections Order (‘CCO’), the report of Mr Cronin, the counsellor makes it clear that you had sought some counselling assistance and apparently had made a commitment to continue counselling.
23Therefore, it is not a question of you not having had sufficient time to be supervised under the CCO. My observation is that prior counselling that you reportedly undertook had little or no effect on your actions. For those reasons, in total, the offending is of high objective seriousness.
Prior criminal history and personal circumstances
24You have a relevant criminal record in both Victoria and Queensland. Apart from the recklessly causing injury matter mentioned above in 2019, you were convicted of an assault matter again relating to your actions while you were intoxicated.
25In Queensland you have several offences of a similar, although far less serious nature. The breach of the intervention order is of significant concern given that your partner was living with you at the time of this offending. Your prior record is not an aggravating feature of your current offending, but it must deprive you of leniency.
26In relation to your personal history, I have received a thorough report prepared by psychologist, Mr Patrick Newton.
27I have received a thorough report prepared by psychologist, Mr Patrick Newton who interviewed you over 90 minutes and accessed information relating to your prior treatment and attendances of mental health professionals from 2014 onwards. His observations, risk assessment and recommendations were not challenged by the prosecution.
28You report that you were born in North Queensland. You were the youngest of your parents' two children. Your parents separated when you were aged two and thereafter, you remained with your mother. You reported, geographically, a transient lifestyle with your mother due to her work. However, you enjoyed a stable relationship within your family.
29
Notwithstanding your frequent change of schools, you reported no difficulty making friends in new schools and that your education was apparently adequate.
You report that your behaviour was not always good. You described your early years as having been 'good until age 14' when you chose to move to live with your father. It seems that you had been in some trouble at school and you apparently took the decision to live with your father in that context.
30You did not complain to Mr Newton of any physical abuse through your life, although he addressed this issue. You report that you do not have a good relationship with your father. You lived with him for about a year and a half but apparently have had no relationship since. You report that you remain on good terms with your mother and siblings. You were residing with family when this offence occurred.
31
Your three year relationship with your partner, Hannah, is apparently good, although I note that she was the subject of a family violence order made in Queensland. You and she have a young child. She remains supportive.
You acknowledge that you have not treated her well as a result of your drug use and offending. I suggest that your child will not benefit from a drug using, violent parent. I have no doubt that parole will refer any concerns for the child's welfare to the Department of Families and Services as they are required, if those concerns are raised in the future.
Substance abuse
32
You report using methamphetamine from when you were 16 and by that time, you were regularly drinking to excess. You were living with your mother at the time.
It cannot be said that this use was directly associated with your father's bad influence. You have had, throughout your life, the stability and support of your mother and sister and you still have that support. Your mother has persisted in seeking professional support for what is termed your anger management issues from as early as 2014.
33Investigations concerning treatment for this lack of self-control and similar issues have included a consideration of psychiatric medications and counselling. I am told that on one occasion, you undertook a home detox program for one month but apparently relapsed shortly after. Mr Newton, the psychologist, observes that you have reported overdoses on multiple occasions and bouts of paranoia after LSD usage. He further observes that you have never sought formal assistance for same.
34Mr Newton opines that your insight into the risks posed by your drug use is insipient, that is, at the very early stages of understanding despite some in-custody substance abuse programs having been completed by you. Specifically, your relapse prevention plans are limited and you continue to endorse permissive values with regard to your drug use. You appear to have little insight into the obvious, direct relationship between substance abuse and your criminal offending.
35Your drug use has been sufficiently severe to meet the DSM–5 criteria for the diagnosis of a severe substance abuse disorder with regard to alcohol, methamphetamine and GHB. Assuming that you have verified abstinence since being taken into custody, and I have no such information, this condition would now be specified as being in early remission in a controlled environment. If you are not so using while in custody, that is good, but a very early start. I suggest the authorities ought require proof.
Mental health
36On assessment and observation by Mr Newton, you were found to be of normal mental status notwithstanding your current custodial placement. This is, in effect, a positive for you and you are, it seems, cognitively capable of understanding what will be required by you in the future. However, he also observes that you currently display prominent traits of anti–social personality. This is consistent with what he suggests was a conduct disorder that was evident during your childhood before you went to live with your father.
37He also observes that you were prone to concentrate on the importance of achieving your own goals and to pay less regard to morality of the means you use to reach them. Relevantly, he observes that you learn slowly from experience.
Future risk of violence
38Mr Newton opines that you currently present as a moderate to high risk of further violent offending. This is an above average level of risk relative to other violent offenders. Such risk would be at its highest in the context of a relapse to alcohol and other drug abuse, but even absent these factors, your longstanding behavioural problems elevate your risk of recidivism beyond the low-risk range. This is a worrying observation and must underline the need for both specific deterrence and rehabilitation as sentence considerations.
39
In addition, it is observed that your association and identification with dysfunctional peers does not assist. No doubt, your parole supervisors will continue – will consider this observation, and direct you as to who you may and may not associate with in the future. In order to address this elevated risk of violent offending,
Mr Newton recommends that you actively participate in a men's violence reduction program and ensure that you establish and maintain abstinence from drugs and alcohol.
Mitigating considerations
40First, your pleas of guilty. As noted above, your pleas of guilty were entered at the earliest available opportunity. Thus, your pleas have been of substantial utilitarian value to the administration of justice and have saved any requirement for any witnesses to give evidence at either committal or trial proceedings. This will appropriately result in an amelioration of the sentence imposed today and will be reflected in a section 6AAA declaration.
Youthfulness
41This offending was committed when you were 23 years old. Mr Newton assessed you as being immature in addition to his other less flattering observations. I accept that, to some extent, this is a consideration on your sentence.
42In relation to this offending and prior offending, I accept that you have displayed a distinct lack of insight into the consequences of your behaviour. Mr Newton observes this in relation to both your offending and in relation to your substance abuse. I accept that there is potential for your reform notwithstanding the guarded observations of Mr Newton. Your youth will ameliorate both the head sentence and the non–parole period that is imposed, to some extent.
43I accept that it is very much interests of the community as a whole to take every step as is reasonable to ensure that you have the opportunity to embrace rehabilitation. It may be your last opportunity to do so. Further offending of this type will result in longer sentences.
Moral culpability
44Your counsel submitted that he was instructed that your time with your father was, and I quote, 'traumatic and dysfunctional'. On your instructions, you were subject to physical violence from him. This, however, did not form part of your self-report to Mr Newton. The only information relating to this is contained in a letter from your sister who, I note, was not living with the family at the time you lived with your father. She does not suggest independent knowledge of this time of your life.
45While I accept that your relationship with your father is poor and that this lack of relationship may have been the result of him being an unsuitable role model, I cannot find that this level of dysfunction in your upbringing was anywhere near the level of importance to your development as your counsel suggested.
46The referenced cases of Bugmy,[1] Marrah[2] and Hermann,[3] in your counsel's submissions, all related to offenders whose backgrounds and upbringings from very young ages caused, in effect, an inevitable decent into criminal behaviour. The courts have observed that in extreme cases such as those, such disadvantage precedes the commission of crime and often explains and contributes to an offender's criminal behaviour. Courts have also observed that the impact of disadvantage is complex, multi–layered, non–linear and not easily diagnosed or measured.
[1] Bugmy v The Queen (2013) 249 CLR 571.
[2] Marrah v The Queen [2014] VSCA 119.
[3] Director of Public Prosecutions vHermann [2021] VSCA 160.
47Therefore, those circumstances can be relevant to the sentencing process by reducing moral culpability of an offender thus decreasing the prominence of general deterrence and retribution in the sentencing synthesis.
48However, in your case, there is simply no evidence of such serious childhood deprivation that would make you less morally culpable than an offender whose formative years were not marred in that way. Ultimately, your counsel conceded this. That is not to say that the court is able to observe and take into account your long term substance abuse as being closely related to your offending. However, that does not reduce your moral culpability for the offending.
49It is reported that your experimentation with alcohol and drugs preceded you moving to live with your father, but that your substance abuse escalated in the time you were with him. It continued to escalate, according to your report, when you returned to your mother's care.
50Notwithstanding the above, I am convinced that a generous non–parole to total term ratio is warranted in your circumstances for the above reasons.
Supervision recommendations
51As noted above, when this offence was committed, you had recently been sentenced to a supervised CCO. You had apparently undertaken a number of counselling sessions prior to that sentence. Mr Cronin, who gave information to the previous court, indicated that you had, as at November 2021, developed insight into the triggers that had influenced you to react negatively when placed in certain situations. He further reported that you had displayed commitment to modifying impulses and thought. No doubt, this was a useful opinion for the Magistrates' Court and resulted in you being placed on a supervised Community Corrections Order. That was clearly a misjudgement.
52Mr Newton made some observations for your future treatment, both psychiatric and psychological, in paragraph 53 which encompasses pages 13–17 of his report. I do not propose to detail those many pages of recommendations in this decision, but I commend them to those who will supervise you in due course. No doubt, there is going to be consent for Mr Newton's report to go to Corrections.
53The recommendations that Mr Newton makes are wide ranging and comprehensive. He observes that in the past, any treatment you have received has neither been sustained or consistent. Long term supervision within the community on your eventual release will be required in order for you to maintain crime-free behaviour. This observation will inform the court when considering the period required for community supervision as part of the instinctive sentencing process. It is obvious, at least to me, that your continued substance abuse including alcohol abuse is a significant contributor to your violent offending.
54I suggest that any ultimate supervision by parole services include a requirement that you abstain from both illicit substances and alcohol. I further suggest that family members who remain in your life and supportive of you be given appropriate information and guidance. Further, that they be encouraged to attend counselling themselves in order to better understand how to support you and how to properly and appropriately express their disapproval of any substance or alcohol use in the future. They ought not be in a position to tolerate your intoxication. Young children will be placed at risk.
55
Mr Newton suggests drug–based education and counselling alongside therapy and testing to ensure that you remain free of alcohol and other substances. He also recommends psychiatric assistance alongside further counselling and treatment including the men's violence reduction program. Some of these programs are available in custody. It is in your best interest to engage in these programs while in custody. This may go some way to convincing those who will decide whether you ought to be released when the
non–parole period has expired. These matters are in your hands, Mr Rosendahl, and will be your responsibility.
Rehabilitation
56Mr Newton is appropriately guarded in his assessment of your prospects of rehabilitation. As above, he observes you to be immature and that your early difficulties have been made worse by your heavy drinking and drug use. He concluded that you are now alienated from mainstream society and that you have deep-seated personality problems. Much will clearly depend on how you utilise any further time in custody and your ability to sustain motivation for change once released. Again, he recommends drug education and counselling, violence prevention training, treatment of maladaptive personal traits and practical living skills.
Sentence
57I turn now to the sentence that I propose to impose. Mr Rosendahl, for the offence of intentionally causing serious injury, I sentence you to a term of imprisonment of six years and nine months. For the offence of contravening a family violence order, I sentence you to three months' imprisonment with an accumulation of one month on the base sentence.
58
This is a total effective sentence of six years and 10 months. I set a non–parole period of three years and ten months. Had it not been for your plea of guilty,
I would have sentenced you to a term of imprisonment of nine years and
six months with a non–parole period of six years and six months.
59I note and declare 291 days (not including today) of pre–sentence detention and reckon this as time served. The authorities will calculate the time within which the non–parole period will expire and, as I indicated sir, in my reasons for decision, at that time, you will then be eligible for release on parole and of course, subject to the direction of the parole board.
60Have I missed anything, counsel?
61MR KERLIN: Not from my perspective, Your Honour.
62MR ALLEN: Certainly not, Your Honour.
63HER HONOUR: All right. Do you want to have some private time with your client?
64MR ALLEN: I'm grateful Your Honour but we've got a conference arranged.
65HER HONOUR: You've got a conference booked.
66MR ALLEN: Thank you.
67HER HONOUR: All right. Thank you we'll adjourn now.
68MR ALLEN: As Your Honour pleases.
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