Director of Public Prosecutions v Skipwith
[2016] VCC 76
•5 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01644
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT SKIPWITH |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2016 | |
DATE OF SENTENCE: | 5 February 2016 | |
CASE MAY BE CITED AS: | DPP v Skipwith | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 76 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence following pleas of guilty to assault, aggravated burglary and intentionally causing injury arising from a stabbing of a security guard – 58 year old offender with no prior convictions suffering from terminal lung disease – powerful mitigating circumstances - importance of general deterrence and just punishment – serious offending – taking account of exceptional circumstances, TES of 6 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Manning (plea) Ms M Bossio (sentence) | Solicitor for Office Public Prosecutions |
| For the Offender | Mr R De Vietri | Victoria Legal Aid, Dandenong Office |
HIS HONOUR:
1 Robert Skipwith, you have pleaded guilty to assault (charge 1), for which the maximum penalty is five years' imprisonment; to aggravated burglary (charge 2), the maximum is 25 years' imprisonment; and to intentionally causing injury (charge 3), the maximum being 10 years' imprisonment.
2 I must now sentence you on behalf of the community. The essential question for determination is whether or not you should be imprisoned for your offending.
Circumstances of offending
3 The circumstances of your offending are set out in an agreed prosecution opening, which was read out in court. A summary will suffice. You are a fifty-seven year old man who had led an industrious and blameless life up to the time of offending. You had been a heavy smoker and by mid-2014 were suffering from severe end-stage chronic obstructive pulmonary disease with associated emphysema, bronchiectasis, weight loss and other medical conditions. You were hopeful of receiving a lung transplant.
4 On the morning of 23 January 2015,[1] you consulted a respiratory physician who gave you a pessimistic outlook as to receiving a lung transplant unless you stopped smoking cannabis and controlled your hepatitis B. The specialist described it as a “tough discussion”. You left the consultation believing you had a limited life expectancy and were in a generally depressed mood.
[1]There was some uncertainty in the evidence as to when the consultation took place but ultimately, the parties agreed it was on the day before the offending.
5 The following evening, at about 9.30pm on 24 January, you were gambling at the Hampton Park Tavern in Hampton Park. You had been drinking and were affected by alcohol. You got into an argument with another gambler when he started playing on your machine after you left it for a short time. You were aggressive and refused staff directions to calm down and leave the premises. There was some pushing and shoving and eventually you were placed in a headlock and ejected. You sat outside for about 10 minutes with your wife, continuing to be aggressive and swearing at staff and accusing them of being racially motivated because you are a dark skinned Maori from New Zealand. Three staff, including the licensee of the tavern, Danny Brady, and a security officer, Vaveosamoa Seumanufagai, lifted you up and tried to place you into your wife’s car. You broke their hold and kicked Brady to the right side of his face, causing a small graze to his cheek and punched him to the chin (charge 1). Mr Brady did not require medical attention.
6 You were driven home by your wife, but unbeknown to her, you drove back to the tavern about 25 minutes later. What happened thereafter was captured on CCTV which I have watched. It makes for exceedingly unpleasant viewing. You were obviously in a fit of rage for you had obtained a silver knife with a thick blade, 10 to 12 centimetres long. You walked slowly and deliberately into the tavern hiding the knife behind your back, intent on assaulting someone inside (charge 2). You were not staggering or falling over. Mr Seumanufagai, who had been involved in evicting you, was performing security duties at the entrance to the gaming room. He was fully occupied dealing with a customer and standing side-on to you. You walked directly to him and lunged, repeatedly stabbing him to the lower right side of his torso. The victim stepped back but you made a further strike to his rib area and to his arm before he could escape from you into another room. In all, you made about five swinging motions in six seconds, all the time saying: “I will kill you, I will kill you, now I'm coming back to kill you.” (charge 3).
7 Mr Seumanufagai sustained two minor lacerations to the right side of his chest wall, 2 and 4 mm in length, and a deep 8 to 10 cm laceration to his right forearm, which bled profusely and required seven stitches and dressing at hospital. He also had a large bruise to his arm and suffered significant pain.
8 After the stabbing you calmly walked out of the premises, still in possession of the knife. When customers and staff told you to put the knife down and that police were coming, you thrust it towards them stating: “I can kill anybody” and “You’re next, you’re next.” Eventually, when security staff hit you on the hand with a pool cue, you dropped the knife and were detained until police arrived.
9 Police state that you appeared to be very intoxicated. You swore at and struggled with them when arrested, during which time your right elbow was dislocated. You were taken to hospital with concerns you had suffered a cranial injury. The next day police sought to question you but you were abusive towards them and deemed unfit for interview. You were charged and bailed.
10 You have now served two days’ pre-sentence detention, not including today. You made an early plea of guilty at a committal mention on 18 September 2015.
Victim impact
11 I have received a Victim Impact Statement declared by Mr Seumanufagai on 23 December 2015. He said that you stabbed him with significant force and have left him with scarring to his arm and the side of his chest. He frankly concedes that the physical injuries themselves have not affected his life but his mental wellbeing is of concern. He was forced to take three weeks off work with financial loss. He suffered disturbed sleep and nightmares. He says the attack has adversely affected his life and his marriage and that you have “ruined” him. He is fearful of such an event occurring again and, although he has recommenced his job, he is stressed when he is getting ready for work and reluctant to go. He describes himself as having changed from being kind and humble into an angry person who keenly feels the unfairness of being attacked when he was just doing his job, trying to earn a living for his family. After almost 12 months, he says he is still suffering from Post-Traumatic Stress Disorder, which is supported by two brief medical reports. He has a fear of seeing someone holding a knife or wondering if people in the street are going to stab him.
12 There can be no doubt that the victim impact has been profound and enduring. The recognition by the court of such a statement is an important part of the victim’s social rehabilitation. You should feel a great deal of shame and remorse for what you did to that person.
Background and personal circumstances
13 I shall now turn to your background and personal circumstances. These have been well set out in a report of forensic psychiatrist, Assoc/Professor A. Carroll, dated 3 December 2015, and in your counsel’s helpful written submission.
14 You are now 58 and have no prior or subsequent offences. You were born in New Zealand of Maori heritage. You are the middle of 11 children. Your father was a violent alcoholic and you were subjected to physical abuse, running away from home at 14 and ending up in boys’ homes. You remember suffering continual hunger in childhood. You had a disrupted schooling and truanted so that you could spend time with you father in the bush. It is not clear when you left school but you have been fully and productively employed labouring, truck driving and in factory work, where you were likely exposed to asbestos causing or contributing to your current terminal lung condition. In more recent years, you have worked in public health promotion assisting Maori populations in New Zealand. Having arrived in Australia in 2005, you worked as a truck driver but stopped working in 2009 because of your airways disease. You have NZ citizenship and Australian residency.
15 You have been married for 35 years and have four children. Your 15 year old son still lives at home. You have maintained a good relationship with your wife despite a period of separation in recent years. Late last year she returned to live with you, mainly so she can care for you. Your wife supported you in court and she and your daughter provided glowing references, indicating you are a devoted father and family man, a decent, hardworking and trustworthy person, someone who has acted out of character and who is now full of remorse. They indicate you have suffered greatly from your medical and depressive conditions in the past but have now developed significant insight into the seriousness of your conduct, having attended a lengthy anger management program in 2015 and continuing psychological sessions. A report from the Salvation Army indicates you have been strongly motivated in that program, you offered to write a letter of apology to the victim, and that you are remorseful and have changed your “world view”.
16 I will say a little more about your medical issues. According to your respiratory physician, Professor Greg Snell of the Alfred Hospital, you have severe lung disease which will ultimately prove fatal. In December last year he predicted you had a 30% chance of surviving for five years without a transplant, or a 50% chance of surviving for the next three years. A transplant is no longer likely to happen. The expert states you have a very limited prognosis and face increasing disability and poor quality of life. Another respiratory physician, Mr Paul King, has provided a number of reports detailing his treatment of you. He noted that you had remained relatively stable from April through to November 2015. You had what was described as a “moderate exacerbation” in June 2015 for which you were admitted to hospital, but you got over that issue. It was said there have been two other visits to emergency but I have no details of these. During this time you were confirmed as not smoking cigarettes or cannabis and you had stopped drinking. Mr King’s latest report of 7 January 2016 indicates your lung function is about one-quarter of normal and you have “very severe problems” with your breathing. You are on regular inhaled medication and antibiotics for the treatment of your lung disease.
17 Your lung condition has been a terrible burden for you. In July 2014 you were admitted to hospital suffering from depression with suicidal ideation following your wife leaving you. You reported regularly taking more medication than necessary to escape reality and smashing a car on purpose.
18 Professor Carroll examined you on 20 November last year. You denied any suicidal thoughts at that time. You were attending a psychologist on a fortnightly basis to deal with your anxiety, but I do not have any report from that source. The psychiatrist’s opinion was that you appear to suffer from a recurrent major depressive disorder which is currently in remission. Whilst there is no evidence that you were in an active phase of your depressive illness at the time of offending, the expert’s opinion is that you do appear to have been in the midst of an acute adjustment disorder secondary to being given the bad prognosis by your treating specialist. It is likely that your alcohol consumption was exacerbated by the consumption of your prescribed antidepressant medication. Additionally, you were diagnosed as suffering from agoraphobia with panic disorder, which particularly affects you when in crowded places when it is possible you are more likely to sustain an infection. This condition is theoretically treatable, but the depressive disorder is likely to be permanent.
19 Professor Carroll also states that at the time of offending it would appear likely that your mental capacity and functioning were adversely impacted by the combination of distress, having received the bad news from your specialist and severe intoxication. Whilst relevant, no Verdins claim was made in this regard.
20 On 4 January last you had a catheter operation to address an issue of urine retention. You have associated kidney and prostate problems. Generally, your health is frail and you must use either a walking stick or a walking frame.
Mitigating circumstances
21 There are a number of mitigating circumstances relied upon which I accept. The first is that you are a mature offender with no prior or subsequent offending. You had a problematic and dysfunctional upbringing characterised by the lack of an appropriate male role model and disrupted schooling. Notwithstanding these disadvantages, you have for most of your life been fully and productively employed. You established a significant relationship and are a devoted family man. You have the support of your family.
22 Your counsel opened his plea by indicating you were deeply ashamed of your conduct; you accept that you engaged in gross violence on an innocent person; you very much regret the victim impact I have described; and readily understand that you could well face an immediate term of imprisonment. I accept all of that and it demonstrates significant insight on your part.
23 You entered the earliest pleas of guilty which have saved the community much time, cost and expense. Your pleas have avoided the stabbing victim of having to relive the trauma of his experience in court proceedings and are of significant utilitarian benefit. They serve the ends of justice and for that reason alone there should be a significant discount in penalty. I am also satisfied that your pleas are associated with significant, genuine remorse and shame for your conduct.
24 Since your offending you have undertaken an anger management program and ongoing counselling which has enabled you to understand and accept the serious nature of your offending and to address your personal problems.
25 Your respiratory physicians and psychiatrist are unanimously agreed that a term of imprisonment would be more burdensome for you than for another without your condition and it would likely make your condition worse. Accordingly, Verdins propositions 5 and 6 are engaged in your favour. Your severe terminal lung disease constitutes an exceptional circumstance in terms of hardship.
26 I am satisfied that you have very good prospects of rehabilitation, particularly as you have stopped smoking cigarettes and cannabis, given up alcohol, have undertaken an anger management program, and are continuing to engage in monthly counselling sessions. There is no requirement for sentence to address the issue of community protection or specific deterrence.
Other sentencing considerations
27 There are, of course, other important sentencing considerations. The first is that I must have regard to the maximum penalties provided for these offences. And I must consider current sentencing practice, which I have done, although it is true that sentences for this kind of violence can vary and ultimately every case must turn on its own facts and circumstances.
28 The pessimistic medical prognosis you received the day before offending could never excuse your conduct. Whatever your disappointment as to that prognosis, it is clear from Professor Snell’s reports that a transplant was still a possibility if you stopped smoking cannabis and addressed your hepatitis B issue, but you do not appear to have committed to this course. What is clear is that you were angry at having been ejected from the gambling premises; disinhibited by the consumption of alcohol and medication; and you were motivated and acted in a wholly disproportionate way to a perceived grievance. You had ample time to cool off after the first incident. Yours was not a spontaneous response to a sudden situation, instead, you made a conscious and considered decision to return to the tavern where you unleashed your attack on the defenceless security guard. Your conduct was intentional and not reckless. But I must sentence you on the basis that you intended to inflict an injury and not a serious injury. You told that man you wanted to kill him and no doubt those words would have heightened the fear that he felt. He is to be highly commended for the courageous way he fought you off to avoid more serious injury. Yours was a planned, violent, vicious, cowardly and unprovoked ambush of a person just doing his job.
29 Although I accept you were intoxicated, you were not walking with a stick or a frame at the time and approached the stabbing victim in a deliberate and calm way. Your lung condition and intoxication did not apparently inhibit or prevent you driving back to the scene and carrying out the attack. It was conducted in a public place, which would have caused fear to many on-lookers, for example, the one who can be seen on the CCTV footage running away in significant fright, although you are not to be sentenced for your threats or conduct towards others.
30 I agree with the prosecution submission that the stabbing was a very serious example of the offence of causing injury and stands at the upper end of the spectrum for this offence. The presence and use of the knife which you had aggravates charge 3. The Court of Appeal and Parliament have in recent years strongly condemned the use of alcohol-fuelled knife violence in public.[2] There has been significant and enduring victim impact. The principles of general deterrence, just punishment and denunciation all loom large. Your moral culpability is high indeed.
[2]See, for example, the analysis of numerous cases in the Sentencing Manual, para 27.6.3 “Weapons” and the Second Reading speech introducing the Control of Weapons Bill, 24 June 2010.
31 Your counsel submitted that given the mitigating circumstances, particularly the hardship of your limited life expectancy, this is an exceptional case for releasing you on a Community Correction Order without the imposition of any jail penalty.
32 The prosecution conceded that such an approach was within range and that you would benefit from supervision and the monitoring of your mental health and medical conditions on a CCO. Significantly, the prosecution did not submit that immediate imprisonment was not within range.
33 In light of these submissions, I called for a CCO assessment report. It indicates that you have a low risk of re-offending and are suitable for release on a CCO with supervision and alcohol and mental health assessment and treatment. Unpaid community work is not recommended given your medical conditions.
34 In deciding upon sentence, yours is far from an easy case. The prosecution submission as to disposition must be given full weight. Of course, imprisonment must be a last resort, particularly for a first offender with a limited time to live, but after anxious consideration I have concluded that the objective gravity and circumstances of the aggravated burglary and stabbing are too serious for you to avoid immediate imprisonment, notwithstanding the very powerful mitigating circumstances in your favour. However, those circumstances, particularly your current medical condition, should markedly reduce what would otherwise be an appropriate sentence on charges 2 and 3. As was stated by the Court of Appeal in DPP v Hutchinson,
“Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’ [s 5(1)(a) Sentencing Act 1991]. There will be cases – indeed, many cases – where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.”[3]
[3][2015] VSCA 115, [17], per Priest JA, with whom Ashley JA agreed.
35 It is clear that incarceration will be difficult for you in the way I have acknowledged, but the prison authorities have an overriding obligation to responsibly care for a prisoner’s physical and mental health concerns. It is not suggested that the medical treatment you require for your lung disease cannot be provided to you whilst you are in custody and Corrections Victoria will need to monitor you very closely in that regard.
36 Whilst it is possible to also sentence you to a Community Correction Order, I am satisfied that you have very good prospects of rehabilitation, and you have already benefitted from ceasing alcohol and drug consumption and taken appropriate steps to address your mental health concerns. To place you on a lengthy CCO, as suggested by the parties, would be an unnecessarily punitive addition to the term of imprisonment which I intend to impose.
37 Finally, on behalf of the community, I strongly denounce your offending.
Sentence
38 Mr Skipwith, please stand up. You are convicted on all charges. On charge 1, you are fined $250. Given that you are on a disability pension, I will give you four months within which to pay that fine. Counsel may ask for longer time if necessary. On charge 2, you are sentenced to 6 months’ imprisonment. On charge 3, you are sentenced to 6 months’ imprisonment. The sentence on charge 3 is the base sentence and that on charge 2 will be served concurrently. The total effective sentence is 6 months’ imprisonment. I declare that 2 days pre-sentence detention be deemed to have already been served on that sentence and that that declaration be entered into the records of the court.
39 But for your pleas of guilty, I would have sentenced you on charges 2 and 3 to a total effective sentence of 18 months’ imprisonment with a minimum of 12 months.
40 I shall make the forensic sample order sought given the seriousness of your offending on charges 2 and 3; the order is consented to; and the granting of the order is in the public interest. Accordingly, pursuant to s464ZF(2) of the Crimes Act 1958, you are ordered to undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. If at the time you do not consent to the taking of a mouth scraping, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I will sign that order. Sit down please. I hand that order down.
41 I shall also make the disposal order which is consented to. I will sign that order. I hand that order to the prosecution.
42 I shall endorse the papers with the list of your current medications as provided by your GP and direct that all medical and psychiatric reports be provided to Corrections and/or Justice Health. I will note that you suffer from a terminal lung disease and must be very closely monitored for your medical fitness.
43 I ask counsel, are there any matters arising?
44 COUNSEL: No, your Honour.
45 HIS HONOUR: Mr Skipwith, you need to go now with the prison officers. Thank you, please remove the offender. [Offender removed]
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