Director of Public Prosecutions v Savannah

[2021] VCC 54

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01113

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIAN SAVANNAH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2020
DATE OF SENTENCE:	2 February 2021
CASE MAY BE CITED AS:	DPP v Savannah
MEDIUM NEUTRAL CITATION:	[2021] VCC 54

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Accused	Ms C. Gomez Vazquez	Victoria Legal Aid

HIS HONOUR:

1Julian Savannah, you have pleaded guilty to one charge of recklessly causing serious injury.  You pleaded guilty at a reasonable early opportunity.  It would appear, in some respect, your plea is accompanied by appropriate remorse, but obviously you have made some comments to Corrections, which cause some difficulty with that.  Clearly, you get the utilitarian benefit of that plea of guilty, and I take that into account. 

2So far as the prior history is concerned, it is not of great duration, but of one concern is that you have a prior conviction for violence which, as I understand it from the material, involved a stabbing as well.  That is the basis of this charge and I will proceed to summarise that in brief from. 

3On 8 March 2020, a Mr Matthew Hutchison was celebrating the end of the cricket season with fellow members of the Port Melbourne Cricket Club.  They had been to a number of venues.  In any event, you arrived at the Rex Hotel, which is well known to me, in Port Melbourne around about 1.20 am, and playing game machines.

4At quarter to two, Mr Hutchison ordered an Uber for a friend and went outside with him to catch the Uber.  On the way back in, he accidently knocked into you.  There was then something said between the two of you, and you turned around to face him.  As you did that, it seems clear that you reached towards the rear waistband of your pants, where you had a knife. 

5Mr Hutchison, not realising that, rushed back towards you, and started punching you.  As I say, at that point you produced a knife and stabbed and slashed him.  The fight spilled out into the street.  You disengaged and ran away.  He returned inside the hotel.  Once back inside, he unzipped his jacket and noticed he was bleeding.  It was at that point that he realised he had been stabbed. 

6I indicate that I have watched the CCTV of this, and I accept that from the moment that the stabbing ceased inside, you were endeavouring to get away and in fact were pursued by Mr Hutchison.  For a person not be aware that they had been stabbed is fairly common in these sets of circumstances.  It was put to me as excessive self-defence, and I have disputed whether such a concept exists short of murder, but we do not need to go there. 

7What I do regard it as is a situation where you were not out looking for somebody to stab you, had been using drugs - and that does not excuse anything, but indicates an element of paranoia on you part, where you were prepared, if you perceived yourself as under attack.  Here, in fact you were under attack, but your response was such as to eliminate any concept of self-defence. 

8So far as injuries were concerned, there is no dispute here that the injuries were serious.  There was a small pneumothorax, which is a partially collapsed lung, there was a stab wound to the left flank that went between the ribs, went into the diaphragm and the pleural space, there was a stab wound that penetrated through the space between the ninth and 10th ribs, that wound also extended into the chest wall, in the diaphragm and pleural space.  There was a shoulder stab wound to the back of the shoulder, and there was one to the buttock. 

9That is a number of stab wounds, and obviously whilst it did not go on for a long period of time, there was a number of blows.  You in fact told police that you did not think anything was happening, so you effectively kept going. 

10In any event, Mr Hutchison underwent surgery and was kept in hospital for a period of six days.  And it is quite clear from the victim impact statement from the medical material before me that whilst the injuries may not have been life-threatening, they were certainly serious within the meaning of the definition of serious injury as it is these days. 

11In any event, you were interviewed and, as I have said, indicated that you responded to in what you perceived as some sort of deluded self-defence.  You said that you were stabbing him just to 'get him to fuck off'. 

12I take into account the victim impact statement, which is laudably brief in eloquent terms. It outlines the consequences of this for Mr Hutchison; he has scars that he will have for life.  This has obviously caused him physical injuries; he was in hospital for a period of time.  There is the psychological injury, the paranoia, the fear of going out and the overall shock and lingering and ongoing psychological damage.  I take those matters very much into account and that is why, in circumstances such as this, a custodial sentence is usually inevitable. 

13You are now 27 years of age.  I have indicated you do that one prior conviction of significance, but otherwise you have travelled all right.  The offending, objectively, has be regarded as serious.  It calls for the application of general and specific deterrence, denunciation, and appropriate punishment. 

14I then look to matters personal to you.  Tendered on your behalf was a psychiatrist report from a Dr Zimmerman.  I direct that that report remain on file, so that anybody with a genuine interest can view it.  In these circumstances, it is adequately summarised in my view and your counsel's submissions.  I do not think I need to take it any further. 

15Insofar as your background is concerned, you were born in Melbourne, you were raised in the commission flats in Port Melbourne.  You were exposed to and experience family violence from your father until you parent's divorced when you were about 14 years of age.  Since 2016 - and I have read the reports about this - you felt very strong religious beliefs.  And normally, you are in receipt of a disability support pension.  

16Your mother still lives in Port Melbourne, and is still, as I understand it from the Bar table, supportive of you.  She had previously worked in child protection.  Your father, who is now 46 years of age, lives in Elwood.  He has been diagnosed with schizophrenia as, as I understand, has other members of his family.  He is on a disability support pension.

17Your parents divorced, as I have said, in 2007, and you are the oldest of - as in terms of half-brothers and siblings, the eldest of three. There has been one significant relationship with a girlfriend which lasted for about 18 months, and that was the first time you moved out of home.

18You went to a number of primary schools, which is never a good start in life.  You then went to secondary school, went to Christian Brothers in St Kilda, a transition scheme in North Melbourne, the Kamaruka Education Centre, and Lynall Hall Community School in Richmond, and then St Kilda Youth Services.  Lynall Hall is well known to me and is mitigating material in itself.  You undertook a certificate in engineering at the Box Hill Institute and were able to get certificates I and II in media.

19To your credit, you have been on remand for these matters since they occurred, and you have undertaken various course offered within the gaol, and I have seen the reports in relation to them. 

20Insofar as substance abuse is concerned, you started with marijuana at 13, binge drinking at 14, and it is from about the age of 17 started using other illicit substances, including ice.  You have been using Xanax for a number of years to deal with withdrawal symptoms.  You have reasonable physical health.  You have reduced hearing in one ear, and you have also sustained a jaw fracture some time ago in an assault on you, apparently.

21So far as your mental health is concerned, you have had difficulties.  You had behavioural problems as a child, and it would appear that you were diagnosed with autism, and you were commenced on Ritalin medication.  It is clear that you have had a number of previous suicide attempts.  It is clear that over the years you have been an involuntary patient in mental institutions on at least six occasions that I can count.  You have had medication.  As I have said already, your father and members of his family have been diagnosed with schizophrenia. 

22Dr Zimmerman opines that:

'Mr Savannah is best diagnosed as suffering from the schizophrenic spectrum and other psychotic disorder.  It appears to be in remission in the absence of anti-psychotic treatment.  He's at risk of developing schizophrenia.'

23She also says you have a diagnosis of 'general anxiety disorder associated with panic attacks, currently in remission'. 

24Without needing to go into the detail of all this and, in any way, need to humiliate you in terms of what has occurred insofar as your mental history is concerned; it is quite clear that in the past you have what objectively would be seen as delusional beliefs.  I note that in the report, when you were asked about your beliefs that the Earth was flat, you became quite guarded.

25There are also other matters that are referred to in that psychiatrist's report which, again, I do not need to go into; the document speaks for itself. 

26Of concern is that when you were seeing the psychiatrist, you said that you, on a previous CCO that you had had, that you did not like it, you hated being on a CCO.  You told them that you would rather be in gaol.  I hope that now having been in gaol for a significant period of time, that attitude has changed. 

27Whether you are hearing voices or not at the moment, I do not know.  It is clear that from 2016 on, when you formed strong religious beliefs, there has been a number - as I have indicated already, I think, delusional beliefs, including that - well, I will not go into that.  That is on p.6 of the report and speak for themselves.

28Those matters, in my view, do bring into play, to an extent, the principles outlined in Bugmy.  Insofar as Verdins is concerned, it is a bit harder to say that it is harder for you in gaol than it would be for somebody else because you seem to be doing all right - drug free, you are probably in a better position that you are on the outside. 

29But leaving those matters aside, it is quite clear that you do suffer from mental disabilities, which I think would disinhibit you, and a paranoia which may be drug induced, it may be due to some underlying psychotic condition, it is a bit hard to work out and I do not think the psychiatrist have ever tried to really work that out either.  Clearly, I think, in your situation, general deterrence have to play a part, and I am hoping that - sorry, specific deterrence has to play a part, and I am hoping that the time you have spent in custody is sufficient for those purposes.

30Insofar as general deterrence is concerned, in these circumstances, though it was not stressed particularly by your counsel, I think there is an element of reduction of moral culpability.  This would not have occurred unless the other man had begun to punch you, and that is not blaming him for what has ended up, but the situation was not of your - initially, at least - making, in my view.  And in those circumstances, it could be regarded as at the lower end - and is regarded, sorry, is regarded by me as at the lower end of a recklessly cause serious. 

31However, a custodial sentence is inevitable.  The prospects of your rehabilitation are up to you.  The risk of you reoffending, bearing in mind the report that I will refer to in a moment, has got to be high.  There has to be an element of community protection involved in all this, as well as effectively protecting you from yourself, if I can put it that way. 

32If when you are unwell, stabbings such as this occurred, you may well find yourself one day in a different jurisdiction where the judges are wearing red robes and the penalties will be very, very different indeed. 

33I hope that you are listening to what I am saying, and the reason I say it is to try and get you to comply with the community corrections order, to seek help when it is needed, and to avail yourself of the various supports that can be given to you.  The consequence of not doing so could end up disastrous, not only for you, but for others as well. 

34I have had you assessed for a community corrections order. Reading between the lines, they have accepted you, somewhat reluctantly.  You have previously breached an order.  And again, I am making very, very clear to you that this in lieu of prison, and you have just got to try and assist yourself for the reasons I have outlined.  Insofar as they are concerned, the risk of you reoffending, especially if you are on drugs, is high, and the risk of you relapsing is high. 

35The conditions that they suggest in their report, they are the offending behaviour programs, drug abuse, alcohol abuse and supervision, and I tend to put all those into a two year community corrections order, which will be with conviction, and will be described as commencing within two days of your release from custody, which will be from today. 

36The report also indicates that judicial monitoring in these circumstances, I do not know that that is going to be necessary.  I cannot be more direct, I suppose, than say to you that if you ignore this or make a mess of it and you are brought back before me for breaching it, well, I will not simply cancel it, you will get more gaol.  I mean, it is only fair to make sure you clearly understand that.  That is for all the reasons that I have already outlined.

37All right, accordingly, if you agree - did I say mental health?  I meant to.  Yes, mental health.  If you agree, that will be the CCO, and if you agree, I will sentence you to be imprisoned for a period of 328 days.  I will direct that 328 days be reckoned as having been served under this sentence.  And the community corrections order will be in the form that I have described. 

38I have explained to you what will be in that community corrections order.  You understand that if you breach it, you run a real risk of further incarceration - not a real risk, a high probability of it.  Now, bearing those matters in mind, do you agree to be placed on that community corrections order?

39OFFENDER:  Yes.

40HIS HONOUR: All right. All right, you can mark the corrections order as agreed orally in open court. Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of two and a half years, with a minimum term of 18 months.  There is no other orders I need to make, there is no disposals or that was all done last time?

41COUNSEL:  No, Your Honour.  No, Your Honour, none of those.

42HIS HONOUR:  No, all right.  Thanks, ladies. 

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