Director of Public Prosecutions v RSP
[2010] VSC 128
•31 March 2010
| \ | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1651 of 2009
| DPP | |
| v | |
| RSP | Accused |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2010 | |
DATE OF JUDGMENT: | 31 March 2010 | |
CASE MAY BE CITED AS: | DPP v RSP | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 128 | |
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Pleas of guilty – Intentionally causing serious injury – Intentionally causing injury – Young offender – Section 3 Children, Youth and Families Act 2005 (Vic) ‑ No prior convictions – Victim permanently visually impaired.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr S. Bayles | Victoria Legal Aid |
HER HONOUR:
RSP, you have pleaded guilty to one count of intentionally causing serious injury and three counts of intentionally causing injury. No prior convictions are alleged against you.
On 23 May 2009, Naresh Gurram was celebrating his 24th birthday with a party at his home in Gwen Street, Hadfield. The party had started at 8.00 o’clock and by the time all the guests arrived, there were 20 to 25 males present. They were all Indian students who were enrolled in various courses in Melbourne. The party was held both inside and outside the house, and throughout the night, a number of males were drinking and smoking in the backyard. Inside the house, there was dancing, and food and alcohol was being served.
At about 11.30, you and Troy Wallace drove past the address and heard the party. You decided to attend, and Wallace parked his car in the driveway. You both then walked down the driveway into the backyard and started to talk to some of the males there present. You and Wallace each had a can of alcohol in your hand and, when you entered the party, according to a number of guests, you both appeared to be drunk. Nonetheless, you were both initially friendly and you were offered more alcohol and, after some time, invited into the house.
Inside the house, a number of males were dancing in the hallway and, after a while, you joined them. Whilst dancing, you were bumped by one of the males, who was also dancing and from that point onwards you became abusive and aggressive to the invited guests. You swore at them in racial terms and Sravan Theerthala and other males present tried to calm you down and asked you to leave. You were told it was a private party and that they did not want any trouble.
You and Wallace did leave the house and went into the backyard, but you continued to be abusive towards the males there present and refused to leave. Sravan Theerthala and others repeatedly asked you to leave and not spoil the party, but you continued to swear at them and racially abuse them. At this time, Troy Wallace was also trying to calm you down and telling you that you should leave the party. He was also trying to guide you out the backyard and down the driveway towards his car. After a while, you and Wallace said you would leave if you were given a cigarette, and so you were, and Wallace continued to guide you towards the car. By the time you got to the car, there were a number of Indian males standing around it. Wallace went to the driver’s side door, while you went to the passenger’s side door, and you became very agitated and armed yourself with a screwdriver that you located in the passenger’s side footwell of the car. You immediately swung that screwdriver towards Sravan Theerthala’s head, causing a puncture wound that penetrated his skull and pierced the brain. Sravan Theerthala collapsed to the ground and immediately lost consciousness. Kiran Mushke, who was nearby, went to his friend’s assistance and, while he was bent over checking on his condition, you stabbed him in the left upper body, causing pain and a puncture wound. You then started to wave the screwdriver around at the other males in the area.
At the same time, Troy Wallace became involved in a scuffle with some other Indian males on the driver’s side of the car. That fighting stopped when you and Wallace got into the car and reversed out of the driveway, but the car stalled on Glenn Street, and some of the males started throwing bricks and other objects at the car, which they were able to use because it was a hard rubbish collection night. You and Wallace then got out and ran west towards West Street and then turned into Glenroy Road. Once in Glenroy Road, you saw Sandeep Janagama and Sibasis Das walking along the road. These two males had previously been at the party at Glenn Street, but Sibasis and another boy, Franklin Karunaker, had decided to leave the party after you had become abusive and aggressive. After they left, they realised they had left their friend, Sandeep Janagama, at the party and so Sibasis Das returned to the party to collect him, and thus, both Sandeep and Sibasis were walking along Glenroy Road when you and Wallace came upon them. You smashed a bottle over Sibasis Das’s head and Wallace then struck Das on the head with a saucepan. You stabbed Sandeep Janagama with the screwdriver to his head in the region of his left ear, causing a puncture wound to his neck area near his ear. He fell to the ground and, while on the ground, was kicked by both you and Wallace.
Earlier in the incident, when you were at the car and surrounded by guests from the party, you rang your brother, telling him to come with weapons because you were under attack. Your brother had told your father, who drove out looking for you, and hence your father drove past as you were attacking Sandeep and Sabasis. He told you both to get into his car and he drove you back home, but you and Wallace decided to return to the scene of the party and, when you were in Glenn Street, you were arrested by the police, who by then had been called to the party.
You were taken to the Fawkner Police Station, but owing to your state of intoxication, you were transferred to the Moonee Ponds Police Station and lodged in a holding cell. Attempts were made to interview you, but because of your state of intoxication and also some confusion regarding your age, you were released into the care of your parents with the understanding that you would return to the police station later that day to be interviewed. In fact, at about 4.30 on 24 May 2009, you attended at the Flemington Police Station with your father to be interviewed. When first questioned by the police, you gave a false account of driving past the party and being set upon by a number of Indian males. You did, however, tell the police that you had earlier that day been drinking with some girls at the Hadfield tennis courts and had consumed 22 cans of Woodstock bourbon. Later in the interview, you admitted that you had lied about the incidents started by the Indian males throwing objects at your car. You told the police that you and Wallace had gone to the party and that everyone was initially friendly, but that one of the males present had made a suggestion to you which you took to be a homosexual advance and, because you are homophobic, in your words, you “lost it”. You told the police that when you got to the car, you were surrounded by Indian males who started to attack you and Wallace and that you armed yourself with a screwdriver and attacked the males with it in order to prevent them from attacking your friend, Wallace. You told the police you thought that the males were going to kill Wallace, so you were prepared to kill them.
You admitted that you had attacked the two men in Glenroy Road, that you saw them in the street and believed that they had come from the party, and you chased them because they tried to kill your mate. You told the police that you stabbed them and kicked one of them in the head about five times, which is consistent with the statement of Mr Janagama where he says that he remembered being kicked at some stage.
All four of your victims were taken to the Royal Melbourne Hospital. Sravan Theerthala had suffered a traumatic brain injury. A CAT scan of the brain revealed a penetrative injury entering via the left temporal bone and extending into the right inferior occipital region. This penetrating injury caused inter-cerebral haemorrhaging which required surgical intervention to relieve the pressure on the brain. Mr Theerthala remained in intensive care for seven days and remained at the Royal Melbourne Hospital until 15 June 2009 when he was transferred to the Brain Rehabilitation Unit at the Royal Talbot Rehabilitation Centre, where he remained as an inpatient until October 2009. His rehabilitation was complicated by fever and post-traumatic seizures. He is currently continuing his rehabilitation from home. As a result of the penetrating brain injury, Mr Theerthala has suffered permanent and significant visual impairment. He requires assistance when moving around outside his home and he is currently receiving assistance from Guide Dogs Victoria to learn to become more independent. He continues as an outpatient with Royal Talbot. He has also suffered from tinnitus for a few months and has a moderate hearing loss on the right side, which is said now to be improving. Apart from that major injury, Mr Theerthala also received a second puncture wound to the left side of his face. It is your conduct and these injuries which give rise to Count 1 on the presentment, that of intentionally causing serious injury.
Count 2, that of intentionally causing injury, relates to a stab wound suffered by Kiran Mushke to the left upper chest. The wound was stitched and he was discharged from hospital within four hours.
Count 3 relates to a count of intentionally causing injury to Sandeep Janagama, who suffered an open wound to the head behind the left ear which penetrated the skin and subcutaneous tissues requiring four stitches; and that was as a result of having been stabbed by the screwdriver. He also received minor cuts and abrasions from being assaulted, and he was discharged from hospital within three hours.
Count 4 is a count of intentionally causing injury to Sibasis Das, who received two open wounds to his head from being struck with a bottle. Those wounds required eight stitches in total, and he, too, was also discharged from hospital within four hours.
Victim Impact Statements made on behalf of each of the victims were tendered in evidence. Sravan Theerthala is now 24. At the time of the attack upon him, he had been in Australia for just over 12 months. He was in this country studying engineering at the Melbourne Institute of Technology and he was in his second year of his studies.
A Victim Impact Statement tendered on his behalf as Exhibit “E” speaks poignantly of the consequences of your attack upon him:
“I and my family are going through immeasurable trauma. I feel depressed and confused. This incident has ruined my life, my career and my future. I am no more the same person I used to be. Now I always have to be under the supervision of someone. I have to forego my passion for cars and driving. I can no more enjoy my favourite movies. My life has come to a standstill and I see no hope. I understand that I need to digest and come to terms with my limitations, but I am unable to do so.”
Mr Theerthala also reported that the incident has devastated his family both emotionally and financially. In his Victim Impact Statement, he went on to say:
“My father is a farmer. He has borrowed a lot of money from our relatives to sponsor my education in Australia. He thought I would successfully finish my education and support the family back in India. My father, mother and brother have come to Melbourne from India to support me. They had to give our agricultural land for lease at a nominal cost.”
Clearly, your offending has had serious consequences, not only to Mr Theerthala who, at the age of 24, has now been left permanently and significantly visually impaired, but also to his family.
Kiran Mushke, in his Victim Impact Statement tendered as Exhibit “D”, he reports that he still suffers pain and he was off work for ten weeks. His studies were interrupted and he is now fearful going about on his own.
Sandeep Kumar Janagama, in his Victim Impact Statement tendered in evidence as Exhibit “B”, states that the incident has affected him a lot and he also is afraid to go out at night.
Sibasis Das, in his Victim Impact Statement tendered in evidence as Exhibit “C”, speaks of being unable to work for four weeks. He, too, is unable to walk the streets after the attack, which is of particular significance to him because he had supported himself as a door-to-door salesman. Since the incident, he also has felt unsafe at night time.
The maximum penalty for the crime of intentionally causing serious injury is 20 years’ imprisonment, and for intentionally causing injury, 10 years’ imprisonment. Clearly, Parliament regards these as serious offences, and your conduct on the night and the injuries sustained, particularly in respect of Count 1, are properly to be described as serious examples of serious offences.
You and Wallace gatecrashed the party, and although the dynamics were initially friendly, you were heavily intoxicated and, in that state, a physical bump while dancing provoked an aggressive and excessive response from you which escalated into three people being stabbed with a screwdriver, one seriously, and another being struck with a bottle to the head. You told the police that someone had made a remark which you interpreted as suggestive of homosexuality, although there is nothing in the depositions that suggest this was so, but whatever the reason, no doubt your perceptions were distorted by your significant intoxication, and your agitated and angry response appear to be the catalyst for your offending conduct. Certainly, you abused the guests at the party in racial terms, but it is not put by the Crown that your offending was racially motivated. Rather, your offending was motivated by your alcohol consumption and poor anger management. Accordingly, I am satisfied that s 5(daaa) of the Sentencing Act does not apply.
Pamela Matthews, forensic psychologist, in her report tendered as Exhibit 1, comments upon your super-sensitivity to the issue of homosexuality which appears to be related to your brother’s sexual status and the possibility that you have been bullied by peers about this issue. Ms Matthews stated that when she interviewed you, your anger was palpably intense with hair trigger volatility, and that assessment confirms my reading of your record of interview, which was a very angry document indeed. In Ms Matthews’ opinion, as a matter of priority, your rehabilitation must involve a violence intervention programme. Ms Matthews describes you as too emotionally immature to have insight into the dynamics of your anger. Ms Matthews also reports that you have poor impulse control, you have been depressed since the age of 16 which, until recently, went untreated, and by reason of your reported alcohol use, you would meet the diagnostic criteria of alcohol abuse and would have done so since the age of 16. You also, in her opinion, have a very fragile sense of self and self-esteem, which appear to be a result of your relationship with your father, which causes you to act out in a very angry and aggressive manner.
Ms Matthews’ report also details your family history, which I accept. You are one of five boys. You have not suffered any exposure to domestic violence, child or sexual abuse. Your parents are in a stable relationship. You have an ambivalent relationship with your father, but your mother is supportive of you. You attended Glenroy North Primary School and the Box Forest College, where you studied for but did not complete your VCAL certificate. During this time, you participated in a pre-apprenticeship at Reece Plumbing Supplies as part of your VCAL studies, but you did not continue with it because of the difficulties necessitated by the early starts and travelling to work by bicycle. You obtained employment at McDonald’s in Fawkner, where your working hours increased from casual hours to five nights per week, and you have been so employed there for two years. The manager of that store, Ms Maglieri, gave evidence on your behalf. She spoke of your strong work ethic, your good relations with your co-workers and customers, both of whom are multi-racial. You have expressed to Ms Maglieri before these offences, concern about your alcohol use and you have expressed to her since, your desire to make something of your life. In her opinion, you are aware that what you did was wrong and you appear to have spoken with her about the consequences to Mr Theerthala, although it was not said by her that you have expressed any remorse.
Ms Matthews also reported that you had been depressed and suicidal in Year 10, although you are unable to identify why that was so, and you had attempted suicide while at the Youth Justice Centre and received counselling and been prescribed antidepressant medication as a result. Ms Matthews opined that you are of average normal intellect, but you lack insight. You are egocentric. In her opinion, you do not have an intellectual understanding of the severity of the injuries or the longer term impact on Mr Theerthala, hence she was unable to elicit from you any expression of remorse.
In a letter written by you, addressed to the Court and tendered in evidence as Exhibit “2”, you take responsibility for your conduct and express your desire for rehabilitation and you acknowledge the reality of the adult prison environment. Little, if anything, was said about your remorse for your conduct or empathy with your victims, particularly Mr Theerthala, who is only a young man himself and now, by reason of your actions, permanently and significantly visually impaired. Nonetheless, I accept that, by reason of your plea of guilty, you are remorseful for your conduct and that a more complete expression of remorse may well be forthcoming with increasing maturity.
You are now aged 18. You were 17 when you committed these offences and thus, pursuant to s 3 of the Children, Youth and Families Act2005 (Vic), the law regards you as a child. You were originally charged with attempted murder in respect of Mr Theerthala and the matter proceeded as a committal in the Children’s Court. You offered to plead to a count of intentionally causing serious injury in respect of that charge before the committal, and the offer was eventually accepted. Had you originally been charged with intentionally causing serious injury, the matter would have proceeded in the Children’s Court, but because this Court has exclusive jurisdiction in respect of attempted murder, you were committed to trial in this Court. You are presently being held in the Melbourne Remand Centre, that is, in an adult prison environment, although you were initially held on remand at the Melbourne Youth Justice Centre; you were moved to the adult prison because of management issues and you have been held in adult custody since November 2009.
Your counsel submitted that by reason of your age, your lack of prior convictions and the fact that you have not had previous opportunities to rehabilitate yourself, that detention in a youth justice centre is here appropriate. The maximum period of detention in a youth justice centre that this Court can impose pursuant to s 32 of the Sentencing Act1991 (Vic), is three years. Given the nature of your offending, especially in respect of Count 1, and mindful that your offences involve four discrete victims, two of whom were simply walking along a street and had nothing to do with you or the events at the party, and that all four offences occurred in a public street at night and involved the use of a screwdriver as a weapon on three of the victims and, in particular, one of whom was bending over tending to Mr Theerthala, who had already been stabbed by you in the neck with sufficient force that the screwdriver penetrated his skull, with the consequence that he is now permanently and significantly visually impaired. All four of your victims were entirely blameless. Mr Theerthala had not done anything to you other than to ask you to leave a party to which you were not invited. In these circumstances, despite your pleas of guilty, your age, your lack of prior convictions and your status as a child as a matter of law, I am not satisfied that a sentence of three years’ detention would adequately address the nature and gravity of the offences here committed and the weight to be given to specific and general deterrence, although I accept that the principles of Mills’ case are here relevant and applicable. You are before the Court as a first offender, although you have, since these offences, been convicted of a number of offences arising out of four separate incidents which resulted in your being placed on a youth supervision order which you served while at the Melbourne Justice Centre; you are to be sentenced as a child and thus your rehabilitation and your youth are primary considerations in the exercise of the sentencing discretion. I accept also that a young offender should not be sent to an adult prison if that can be avoided, and that you would be vulnerable in the adult prison environment, not only by reason of your age, but also by reason of your chronic anger. Although in a young offender or child, rehabilitation is usually far more important than general deterrence, nonetheless, general deterrence must be given appropriate weight, especially where offences involving the use of a weapon are committed by young males and not uncommonly in circumstances as present here. So it is that in sentencing you, considerations with regard to your age and prospects for rehabilitation must be balanced with the appropriate weight to be given to general deterrence, specific deterrence and the need to pass a sentence which acts in denunciation of your conduct and serves to punish you.
Therefore, in sentencing you I take into account the nature and gravity of the offences here committed and your role in them, the need to pass a sentence which gives due weight in the circumstances of this case to general and specific deterrence, balanced with considerations with regard to your age and prospects for rehabilitation and the need to pass a sentence which will act in denunciation of your conduct and serve to punish you.
In sentencing you, I take into account your pleas of guilty and give you a discount for them. I take into account also that by reason of your pleas, you have saved the community the cost of a trial and your victims the ordeal of one. I take into account also that you have a good work ethic and you enjoy the support of your family, in particular your mother, and that you have expressed a desire to rehabilitate yourself which, if your anger and alcohol abuse can be addressed, there is no reason to think cannot be achieved. I take into account also that you are now 18, that you were 17 when you committed these offences and that you are to be sentenced as a child. I take into account also your remorse, which I accept is limited by reason of your lack of insight and immaturity, but which nonetheless is acknowledged by your pleas of guilty. I take into account also that you have no prior convictions, that you are to be regarded as a person of good character and that at the age of 18 you will serve a sentence of imprisonment in an adult prison; in short, I take into account all matters which go in your favour and accordingly, you are convicted and sentenced as follows:
Count 1, intentionally causing serious injury, four years' imprisonment.
Count 2, intentionally causing injury, 18 months' imprisonment.
Count 3, intentionally causing injury, 18 months' imprisonment.
Count 4, intentionally causing injury, 12 months' imprisonment.
Your offending conduct involved four victims and your victims in Counts 3 and 4 sustained their injuries after your assaults on Mr Theerthala and Mr Mushke had been effected and you had left that scene. Your conduct may be seen as part of a course of continuing conduct, presumably because you were also motivated by the same factors, although it must be said that your attack upon Mr Janagama and Mr Das was entirely gratuitous. Nonetheless, I therefore propose to order a degree of cumulation on the sentences imposed.
Accordingly, I propose to otherwise direct pursuant to s.16(1) of the Sentencing Act that six months of the sentences imposed in respect of Counts 2 and 3 be served cumulatively with each other and with the sentence imposed on Count 1 and that three months of the sentence imposed on Count 4 be served cumulatively with the sentences so imposed on Counts 1, 2 and 3. That is five years and three months.
In order to give effect to your prospects for rehabilitation I order that you serve a non‑parole period of three years and I declare that you have already served by way of presentence detention a period of 311 days. I declare that pursuant some s 6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a total effective sentence in the vicinity of seven years and three months with a non‑parole period of five years.
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