Director of Public Prosecutions v Slater
[2016] VCC 1427
•27 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01340
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON SLATER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2016 | |
DATE OF SENTENCE: | 27 September 2016 | |
CASE MAY BE CITED AS: | DPP v Slater | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1427 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – intentionally causing serious injury – combination gaol and Community Corrections Order imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher (Plea) Ms S. Pattison (Sentence) | John Cain, Solicitor for Office Public Prosecutions |
| For the Accused | Ms D. Lamovie (Plea) Ms H. Stowart (Sentence) | Victoria Legal Aid |
HER HONOUR:
1 Jason Slater, you have pleaded guilty before me to one charge of intentionally causing serious injury.
2 In addition, you have admitted your prior criminal history. You have convictions recorded in Queensland, New South Wales and Victoria that span a period from 17 September 1990 to 12 February 2008. Of relevance, there are some court appearances in respect to crimes of violence, although I have noted their antiquity.
3 On 17 September 1990, you were dealt with at Mount Isa Magistrates’ Court, Queensland, on one charge of assault occasioning bodily harm for which you were placed on probation for 12 months and ordered to pay compensation of $100. On 20 July 1994, at Cairns Magistrates’ Court, Queensland, you were convicted and fined in respect to one charge of aggravated assault on a female.
4 You also have convictions in respect to dishonesty offending and drug-related offending, street offences, breach of bail orders, breach of a suspended sentence order.
5 It is of some significance that your last appearance in court was on 12 February 2008 in respect to shop steal and possess drug of dependence, for which you received nominal fines. I have taken into consideration the gap in your criminal history prior to this offending occurring.
6 The charge of intentionally causing serious injury is a serious one and that is reflected in the maximum penalty that is prescribed by law and that is 20 years' imprisonment.
7 I shall proceed to sentence you on the basis of the prosecution opening. No issue was taken with that opening by your counsel, Ms Lamovie, at the plea hearing.
8 In essence, the offending relates to you assaulting the victim, Tony Prudden, who at the time of the offending was aged forty-six and living in a room in a community housing home managed by St Kilda Community Housing. That accommodation is for individuals who are experiencing social disadvantage; have special needs such as mental illness, drug and/or alcohol dependence; lack of financial resources; or have a history or risk of homelessness.
9 You had known Mr Prudden for about a month prior to the incident and you met each other on the streets.
10 On the day prior to the assault, you had met up with him and you were in company with your girlfriend, Colleen Kertland, whilst having lunch at the St Kilda Mission, Grey Street, St Kilda. Thereafter, Mr Prudden invited you to attend his room for a coffee, which you accepted. Eventually that afternoon you went and had coffee and talked. The victim stated that after a short time whilst in your presence, you and your girlfriend started to act strangely, which made him feel nervous and uneasy. Consequently, he made an excuse to leave and you all got up and left the room together. Later that day, he returned back to his room and went to sleep for the night. He closed the door, although he forgot to lock the door to his room.
11 At about 6.30am on the following morning of 17 February 2015, the victim was asleep in bed when he was woken by you standing over him. You were yelling “Where’s Colleen? Have you seen Colleen?” He told you that he did not know and the last time he saw her was when she was in your company in Acland Street. All of a sudden, you punched him with a clenched fist to the left side of his face, at which point he passed out and could not recall being struck any further. His next recollection is being on his hands and knees on the floor of his room bleeding profusely from his nose, having difficulty breathing and feeling pain all over his body.
12 The Crown Opening proceeds on the basis that the victim lost consciousness for a short time after the initial punch to the face, although both the ambulance records and the hospital records were unsure about loss of consciousness, and you continued to strike him multiple times to the head and body whilst he was in that state.
13 Eventually the victim sought assistance and police and ambulance were called. He was taken to The Alfred Hospital for further assessment.
14 As a result of the assault, the victim suffered multiple injuries including: a right pneumothorax (punctured lung); fractures to ribs seven, eight and nine of the right posterior chest (broken ribs); and a fracture to the left superior maxilla and orbital floor (fractured cheek bone). Due to the severity of his injuries, the victim was hospitalised for a period of seven days and required numerous surgical procedures.
15 On 18 February 2015, you were apprehended. You had contacted the St Kilda Police Station seeking assistance to retrieve some property that you had left in the victim’s room.
16 You were at the St Kilda Crisis Centre when you contacted police. Police then attended there and arrested you and took you back to the police station where you participated in a formal record of interview. During the interview you admitted that you had been in the victim's room but denied assaulting him. You told police that when you returned to the room, you had found the victim lying on his bed and that you tried to assist him. Police noted that you had some recent wounds and swelling to your right hand.
17 Mr Slater, the objective gravity of your offending is serious. This was an unprovoked attack on an innocent man who was asleep in his own room. He was entitled to feel safe and secure whilst in his room. What you engaged in was a serious attack which left him with potentially life-threatening injury to his lung, and the other injuries as described.
18 Your offending is serious and I consider it to be in the mid-range of offending for this sort of serious offence.
19 Your actions have impacted greatly upon Mr Prudden and I have taken into account the contents of his Victim Impact Statement. He now has real issues about trust, and he feels particularly vulnerable and fragile. He no longer stays in boarding houses because he fears for his safety. He is currently living on the streets and has become very reclusive.
20 Ms Lamovie put a number of mitigating matters on your behalf. She referred to your plea of guilty. She conceded that it was entered at a late stage. There had been a contested committal hearing during which Mr Prudden was cross-examined. Nevertheless, she submitted that there was real utility in your plea and that you have facilitated the course of justice.
21 I accept, notwithstanding the lateness of the plea, that there is utility in your plea. You have spared the cost and expense of a trial and in particular you have spared the victim, Mr Prudden, the further trauma of having to come to court to give evidence on your trial. Your sentence will be discounted accordingly. I accept that you now accept responsibility for your actions and you now have insight into your behaviour.
22 I accept that your plea of guilty is evidence of some remorse.
23 I have had regard to the explanation provided for the offending. It is apparent that around the time of the offending you had relapsed into drug use and you were abusing ice, in combination with benzodiazepine and Xanax which is a bad combination of drugs and caused you to behave in an erratic and irresponsible manner. Xanax is an anti-anxiety drug, but it is known to cause paradoxical reactions in some people and that is likely to have occurred here. Whilst I accept that there is an explanation for your behaviour, it in no way excuses your behaviour and the court must denounce this behaviour.
24 I have regard to the fact that you now accept that the offending is extremely serious and that you caused physical and emotional harm to Mr Prudden. Your case is different from a lot of other cases of this category of offending in that you did not use a weapon and I accept it was situational offending, borne out of your reaction to the combination of drugs you were taking, rather than a planned assault.
25 I have had regard to the significant steps that you have taken since the incident to address your underlying offending behaviour. I have had regard in particular to the material tended on your plea hearing from Dr Benny Monheit, a drug and alcohol specialist, who has been treating you for the past 12 years.
26 Dr Monheit is an addiction medicine physician with whom you have a very good therapeutic relationship. He is well aware of your past history and background.
27 In his letter of 9 June 2016, the doctor states that you had moved away from your chaotic lifestyle. He had been treating you for chronic anxiety with panic attacks, an Obsessive Compulsive Disorder and opiate dependence for the past 10 years. He prescribed Methadone and he also prescribed some anti-anxiety medication, although that drug has now ceased. He said that you did well on medication and you were being reviewed by a psychiatrist and also counsellors related in respect to your treatment.
28 He noted that there was a history of relapse into illicit drug use and in particular around the time of the offending in February 2015 you were using the drug ice.
29 He states, in spite of the recent setbacks, you have been trying hard to keep your life on track. You had moved to Warrnambool to get away from the Melbourne drug and criminal scene. You had a steady relationship with your girlfriend, Ms Kertland, who has an acquired brain injury.
30 You regularly attended for your appointments with him and you were cooperative, honest and pleasant in your dealings with his clinic. Urine drug screens show no illicit drug use.
31 He noted that you felt remorseful about the injuries you caused and that you have gained insight into the effect of drugs on your behaviour. He was happy to continue with your treatment program, noting that you have made very good progress for most of the time he has known you.
32 In his letter dated 19 September 2016, Dr Monheit stated that you had had a long period of stability and recovery from drugs which was unfortunately interrupted at various times in 2015 when you were using methamphetamine and that was associated with the behaviour that you now greatly regret. Importantly, he states this behaviour was in total contrast to your previous or subsequent pattern during the past 12 years that he has known you. In view of your long period of stability and compliance with the current program, he confirmed he is happy to continue with your treatment program.
33 I have had regard to your letter of apology in which you express your deepest regret and sincere apologies towards the victim. You do not excuse your actions and state that you can only attribute your actions to your abuse of drugs. You express your commitment to maintaining total abstinence from drugs and an intention to develop a career in massage therapy in the future.
34 You are concerned about your partner, Colleen, who has an acquired brain injury for whom you have provided real support. Other evidence provided to the Court confirms that Ms Kertland has an acquired brain injury with depression and she is currently on Methadone for opiate replacement therapy. You have been supporting her for everyday living for some years. She has memory problems, requires prompting for medication compliance and moral support. You have provided her with a sense of safety. That is contained in a letter from Dr Sue Richardson dated 10 June 2016.
35 In a letter addressed to the Court from Ms Kertland, she confirms that her condition arose as a consequence of being struck by a car as a pedestrian in 1994. She has a closed head injury and is permanently affected. She attests to your assistance with her daily needs, her financial and budgetary requirements, and other assistance in terms of helping her with her medications, and providing her with support for her activities of daily living. I accept by reason of your close relationship with your partner that it is going to be very difficult for you whilst you are in custody and that you will be anxious about her safety, and that will impact upon your experience whilst in custody. I have taken that into account.
36 Overall, Mr Slater, I have formed the view that you have realistic prospects for rehabilitation. You have already taken major steps to address your underlying offending behaviour. You have real insight into the effect of drugs upon you and your offending behaviour and you are committed to changing your lifestyle in the future so as to maximise your rehabilitation prospects.
37 From the reports provided from Dr Monheit and also the Pharmacist who dispenses your Methadone, Mr Tim Hopwood, I consider that you act appropriately when you are in the community and you are very compliant with your treatment programs so there is real reason for optimism for the future provided you remain totally abstinent from drugs.
38 I note that you are currently being assessed for surgical treatment in relation to an inguinal hernia and today Ms Stowart provided the court details of that. I will provide the information to the Correctional authorities with the request that they have you assessed for surgical treatment in the future.
39 I have had regard to your history and background as set out in the written submissions and oral submissions of Ms Lamovie. You are now forty‑eight and were forty‑six at the time of the offending. I accept your explanation for the offending, in terms of your reaction to the combination of ice, benzodiazepine and Xanax in the hours preceding the offending that contributed to you behaving in an uncharacteristically violent way.
40 Notwithstanding that, I consider the offending is serious and there is a need for the sentence to reflect denunciation by the court, general and specific deterrence, although that is moderated given your real progress since the offending, and just punishment.
41 Ms Lamovie submitted that a combined gaol term with a Community Correction Order (“CCO”) to follow was appropriate. She relied upon the guideline judgment of R v Boulton[1]. It follows from what was said in that case, that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, and this category of offending falls within that.
[1]Boulton v R: Clements v R; Fitzgerald v R [2014] VSCA 342 (“Boulton”)
42 I consider in view of the objective gravity of your offending, coupled with your personal circumstances and your need for ongoing support for your rehabilitation, that a properly conditioned sentence being a combination of gaol together with a Community Correction Order directed at your rehabilitation needs and supporting you with other offending programs will afford you the best prospects for rehabilitation and ultimately offer the best protection for the community.
43 As was observed in Boulton, a Community Correction Order can be punitive, achieve deterrence and may be suitable even in cases such as intentionally causing serious injury.
44 I do not consider that this is a case where the sentencing principles mean that gaol is the only alternative, as was submitted Mr Fisher on behalf of the Crown.
45 You have been assessed as to your suitability for a Community Correction Order and found suitable. I have already outlined the assessment. You have been assessed as being a medium risk of reoffending. It was noted that you were remorseful and apologetic during the assessment, and you were willing to comply. You have indicated to me you understand the nature of a Community Correction Order and the consequences of any breach, and you consent to an order being made in the terms that I have already proposed.
46 I will now announce the formal order and I just ask that you stand please, Mr Slater.
47 In respect to the one charge of intentionally cause serious injury, you will be convicted and sentenced to 12 months’ imprisonment to follow with a Community Corrections Order of three years’ duration with the condition that you report to Warrnambool Community Corrections Service, Lower Ground, 218 Koroit Street, Warrnambool two working days following your release and that you be subject to supervision; attend for assessment and treatment for drug and alcohol abuse or dependency; participate in programs that address your offending behaviour, as directed, for the next three years.
48 You have already served a total of seven days pre-sentence detention and I will make a declaration of that pre-sentence detention and direct that it be entered into the record of the Court.
49 All we have to do now to complete the formal process is sign the Community Corrections Order. I have already signed it, so my associate will go down with Ms Stowart and get that signed, and I'll make sure a copy of the letter goes to the Correction authorities.
50 So thank you Ms Stowart and Ms Pattison, I will attach a copy of this letter concerning the inguinal hernia and need for treatment to the return of prisoner's order, with the request that they address that and, Mr Slater, please remind the assessing officer when they are assessing you.
51 OFFENDER: Yes, Your Honour.
52 HER HONOUR: All right, thank you
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