Director of Public Prosecutions v Stevens
[2021] VCC 955
•12 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-00378
Indictment No. L10244861
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON STEVENS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 July 2021 | |
DATE OF SENTENCE: | 12 July 2021 | |
CASE MAY BE CITED AS: | DPP v Stevens | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 955 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of causing serious injury recklessly – offender struck victim’s face with a meat cleaver – full thickness vertical wound on victim’s left side of face occasioning loss of eye and likely permanent scarring – far from optimistic prospects of rehabilitation – utilitarian benefit of plea of guilty.
Cases Cited:Bugmy v The Queen (2013) 302 ALR 192; The Queen v Jason Stevens [2013] VCC 250; The Queen v Stevens [2013] VSCA 187;
Sentence: 6 years’ imprisonment with a non-parole period of 4 years and 6 months. s.6AAA: 7 years and 6 months’ imprisonment with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J O’Toole | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P Bloemen | Pica Criminal Lawyers |
HER HONOUR:
1Jason Stevens, you have pleaded guilty to one charge of causing serious injury recklessly, which carries a maximum penalty of 15 years’ imprisonment.
2The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”).
3The background to your offending is that you had been released from serving some seven and a half years’ imprisonment on 5 October 2019. Mr Ferdi Beydag, the victim of the offending for which I must sentence you, was someone whom you had known for approximately 15 years, in the context of having apparently met in prison some time ago. Following your release from custody, you were struggling to adjust and your victim assisted you with such things as buying a gym membership, clothing and other general living expenses. In addition, both you and the victim had been heroin users and began to use together. This, too, was financed by the victim.
4At some point shortly before the commission of the offence, the victim began to distance himself from you and to exert pressure upon you to pay him back some $2,500 for all items he had purchased for you, including drugs. The relationship between the two of you deteriorated and, on 27 December 2019, your victim messaged you requesting you pay him $100 off the debt, as discussed. On 28 December 2019, he called you at 2.13pm and you indicated that you had $150 to pay him and would visit him to hand over the money. You took a meat cleaver from your kitchen with you when you left your house to drive to the victim’s house. In your record of interview, you admitted that you took the meat cleaver to intimidate the victim.
5You drove your blue Ford to the victim’s house. CCTV footage at the victim’s premises shows the lead up to the incident, which occurred at 2.19pm that day, and also has audio of the occurrence of the incident. The victim is heard saying something like “Come in mate. Come here”. Shortly after that, he is seen walking barefooted down the driveway of his house. He turns to his right at the end of his driveway and the incident occurs almost immediately, but vision of it is obscured by trees at the front of the property.
6Paragraph 13 of the agreed prosecution opening states that the footage shows that the victim was not carrying anything in his hands and, as he reached the roadway, you can be heard getting out of your car and yelling at the victim. You then approached him menacingly. A loud verbal exchange is audible. The victim then hit you to your jaw using his fist. You then swung the meat cleaver at the victim, which struck his face. The audio captured the victim screaming in pain and pleading with you in shock and disbelief. You returned to your vehicle and retrieved a towel, yelled at the victim to get into your car in order to take him to hospital, and left the scene at about 2.21pm.
7CCTV footage shows you arriving at Monash Medical Centre in Clayton at 2.24pm and assisting the victim into the Emergency Department on foot, but you left soon thereafter and did not provide your details to the hospital staff. You returned to your vehicle and drove home and, en route, discarded the meat cleaver in an unknown location.
8The victim sustained a full-thickness large deep vertical laceration to the left side of his face going all the way through his left eyelid. He suffered a globe rupture to the left eye, that is, the outer membranes of the eyeball were disrupted due to injury. He also suffered a blowout fracture of the left eye socket due to compression of the eyeball. He was rushed to emergency surgery, but his left eye was not able to be saved. He underwent further surgery on 30 December 2019, in which his left eyeball was removed and plastic surgeons repaired the laceration to the victim’s left cheek. The victim has been left with total permanent loss of sight in his left eye. Medical opinion is that he is at risk of chronic complications, such as pain and, even if a prosthesis can be fitted into the eye socket, he will have permanent cosmetic damage to his face. Medical opinion is that the large wound to the left side of the victim’s face will leave a permanent scar.
9Photographs of the victim were tendered as Exhibit “B”. They show an empty, partially-closed left eye socket and a very visible disfiguring scar which runs from the victim’s left eyebrow through his left eyelids and down the left side of his cheek, past the tip of his nose to a short distance above the left corner of his mouth. The scar appears as a vertical groove on the victim’s face, with many horizontal marks from sutures. It is highly visible and disfiguring.
10The victim was in hospital for almost two weeks and was ultimately discharged on 10 January 2020. He reported your assault upon him to police on 13 January 2020, having previously told the staff at the hospital that he had fallen over onto some sharp tin, because he did not want to get you into trouble. It is apparent that whilst he was still in hospital, on 31 December 2019, you drove to the hospital with two associates. You remained inside your vehicle while your two associates visited the victim, at which time the victim assured them that he had not made a complaint to police. However, he decided to make a complaint to the police because, as he told them, the assault had wrecked him and he was struggling to spend time with his children because of the permanent scarring on his face and also struggling to cope living with one eye, as he kept walking into things. On 14 January 2020, police attended the victim’s home, where they observed stains, of what appeared to be blood, approximately 2 metres from the victim’s driveway.
11On 30 January 2020, police arrested you and you participated in a record of interview. You told the police that you and the victim were mates, and the victim had bought you runners and shorts, and paid for a gym membership, and you thought you owed the victim approximately $500 or $600, but prior to the incident the victim had become “dirty” because you had begun dating a girl. You admitted that you took a meat cleaver from your kitchen to try and intimidate the victim, and claimed that the victim came “rocking out’ and called you a “fucking weak dog” and “put one on me”, and that he “started coming at me” and was “running at me”, and that you did not mean to hit the victim in the face with the meat cleaver, but just wanted to hit his arm. You admitted the meat cleaver was probably 12 to 14 inches in length, and that you had disposed of it on the way home from taking the victim to the hospital because you knew you might get into trouble. You also admitted sending an associate to see the victim in hospital, to see if everything was “smooth”. You denied going to the victim’s address with the sole intent of assaulting him.
12Following the record of interview, you were charged and remanded in custody, where you have remained ever since.
13You are presently aged 49 years, having been born on 18 May 1972. You come before the Court with an extensive criminal history and, as I have previously stated, had only been released from serving seven and a half years in custody some two months prior to this offending. Your criminal history dates back some 32 years to 15 August 1989. It includes many dishonesty offences and drug offences.
· You have a prior conviction on 29 November 1994 for intentionally or recklessly causing injury and another offence for which you were convicted, and fined an aggregate of $2,500.
· You appeared in Ballarat County Court on 18 June 1997 on a number of charges, which included one armed robbery, one attempted armed robbery and one robbery, for which you were sentenced to 2½ years’ imprisonment, suspended for a period of two years.
· In the Melbourne County Court on 22 June 2001, you were convicted of a number of offences of dishonesty, which included twelve armed robberies and three robberies. You were sentenced to a total effective sentence of five years and nine months, with a non-parole period of four years.
· You were convicted of another armed robbery, and sentenced in the County Court on 26 February 2013. This sentence was the subject of the Director’s appeal, and on 25 July 2013 the Court of Appeal increased the sentence to seven years, with a non-parole period of four years and six months.
· On 4 September 2013 you appeared at Melbourne Magistrates’ Court for a number of property offences and also for reckless conduct endangering serious injury and common law assault, which resulted in a total effective sentence of 15 months’ imprisonment, of which nine months was to be served concurrently with the sentence imposed by the Court of Appeal.
14Your counsel stated that you were not granted parole in relation to the seven-year sentence imposed by the Court of Appeal and, together with the subsequent sentence imposed by the Magistrates’ Court, you had served a total of seven and a half years in prison before being released into the community only a couple of months prior to this offending.
15You instructed your counsel, Mr Bloemen, that, whilst in custody for seven and a half years, you may have had a few “dirty” urine screens early on, but had remained abstinent from illicit drugs and had also completed an intensive violence program, which was a prerequisite for you being granted parole. However, you had not been granted parole as you maintained that the Parole Board was not satisfied that the address of your mother and step-father in the “border town” of Echuca was a suitable one. He stated that you had spent the bulk of your time in custody in protection due to some ongoing threat from a gang called “the prisoners of war”, who were enemies of your father who had been a drug dealer in the mid-2000s but had died in 2012. No certificates were tendered of any rehabilitative courses completed during that lengthy sentence.
16In the light of a dearth of material put before the Court on the plea hearing, I enquired of your counsel as to whether a report from the Parole Board might assist the Court in being satisfied that you had remained drug-free in custody for such a lengthy period, and that the only reason for refusal of parole was a lack of accommodation. You instructed your counsel that you had been involved “in a few scuffles” in custody, but declined the opportunity to obtain a report from the Parole Board. No results of urine analysis were tendered to the Court in support of your claim to have remained abstinent from illicit drugs for almost the entirety of seven and a half years.
17Your counsel stated that in October 2019 you were released into the community without supervision. Unhappily, it is plain that you began using illicit drugs very soon after being released. Also, two days after committing the offence for which I must sentence you, on 30 January 2020, you committed an offence of theft for which you were sentenced to two months’ imprisonment on 6 February 2020. Clearly, you have already been punished for this offence and it is not part of my task to punish you for it again.
18Mr Bloemen stated that you had a background of disadvantage in that your parents separated when you were a baby. You apparently grew up in the home of your mother, who re-partnered in the late seventies when you were presumably six or seven years old. You apparently described your mother and step-father as “straight-heads”, who have never had any issues with the police. Your mother worked as a seamstress and your step-father worked as a truck driver. You are still close to your mother, who wrote a letter to the Court on your behalf,[1] stating that you had suffered because your father had died whilst you were in custody and, earlier this year, a brother, to whom you were close, had suffered a workplace accident by being electrocuted, and you had been anxious about his welfare. She mentioned the difficulty of you not being able to receive visits during the pandemic and stated that you “always seemed to mix with the wrong people”, and urged the Court to be lenient upon you.
[1]Exhibit “1”
19Apparently, when you were 13 years of age, you moved to live with your father, and you instructed your counsel that he was a drug dealer and you began using cannabis at age 13 years, and then amphetamines from age 16 years. You attended school to Year 8 level and then worked for about a year in your father’s and grandfather’s furniture removal business. Thereafter, you had occasional casual labouring work and, during times, when you were not in custody, did some work for your brother who now owns a furniture removal business. You moved out from your father’s house at age 16 and continued to use amphetamines and ultimately heroin, which became your drug of choice from age 20 years.
20Mr Bloemen stated that you instructed that you tried residential rehabilitation on three occasions but never completed a program, and had also tried Methadone and Suboxone, but neither seemed to have been particularly effective in helping you remain free of drugs. No material was tendered as to when or for how long such attempted drug rehabilitation had taken place. You were apparently prescribed Methadone from time to time in prison, but would commence using illicit drugs whenever released into the community, and apparently suffered a number of overdoses. You are currently, apparently, prescribed Methadone in a dosage of 60 milligrams per day, as well as Avanza. Other than that, you suffer from asthma and have arthritis in your left knee which causes you pain and for which you have been provided anti-inflammatories whilst in custody. Since being remanded in custody for this offending, you have worked in a bakery for a time and currently work as a unit billet at Port Phillip Prison.
21It was urged by your counsel that the principles in Bugmy v The Queen[2] were a relevant sentencing consideration. Mr Bloemen stated that your father did not enforce school attendance and you would drink alcohol and smoke cannabis daily when living with him. There really is a lack of supportive information concerning your alleged background of deprivation. No psychological report was tendered on your behalf. Your mother clearly loved you, and still does, and provided a stable home for you to the age of 13 years, when you apparently went to live with your father for some three years. In the sentencing remarks of Her Honour Judge Douglas in 2013, she stated “…when you were 15 or 16 years of age, you moved out and that is when your use of drugs increased. It was cannabis, amphetamines and then heroin.”[3]
[2](2013) 302 ALR 192
[3] The Queen v Jason Stevens [2013] VCC 250 at [17]
22Whilst it is apparent from your criminal history that you have many court appearances relating to drug use from 1989, and that that would appear to be associated with your criminal offending, it is difficult on the scant material before the Court to be satisfied, on the balance of probabilities, that anything approaching the type of deprivation referred to in Bugmy’s case was present in your case.
23It is somewhat surprising, given your lengthy criminal history, that at least some form of psychological assessment embodied in a report was not tendered on your behalf. Further, as was pointed out by the prosecutor, the issue of background deprivation is not mentioned in the sentencing remarks of Her Honour Judge Douglas or in the judgment of the Court of Appeal in 2013.
24Nevertheless, I take into account as part of your personal circumstances, that it is not always easy for a child to grow up in a household with a single parent and you appear to have engaged in illicit drug use from a very young age, which may well have adversely affected your development and lead to your later use of and addiction to amphetamine and heroin. You instructed your counsel that your father was imprisoned at times during your teenage years and he ended up as your first “cell mate” in Pentridge in 1996. It sounds as though he was far from being a good influence but, on your own admission, you had the ongoing support of your mother and step-father, who you describe as “straight heads”, who have never had any issue with the police. So, it is not entirely true to say that you have never had a positive role model in your life. I accept that some account should be taken of your apparently far from ideal circumstances of 3 years living with your father. However, without further material, it is difficult to place too much weight upon this factor.
25As far as the offending is concerned, your counsel stated that the victim had sent aggressive messages to you requesting payment of the money. Mr Bloemen stated “I don’t say the messages were obviously threatening but that is the way (you) perceived them”. It was in this context that you took the meat cleaver with you to the victim’s house in order to intimidate him to prevent a physical altercation. You claimed in the record of interview that he had threatened to assault you and a girl with whom you had started going out, and “I was shitting myself actually … coz he’s like a martial art fucking bloke you know, and he’s a lot bigger than me”,[4] and “I’ve seen him in prison, you know, have a few scraps”.[5]
[4]Q&A 75 of the record of interview
[5]Q&A 87 of the record of interview
26This, to me, is an unimpressive attempt to shift blame for what happened to the victim, coupled with your allegation that:
“he just came straight at me, put one on me, the side of me, and then he’s rocked me over a bit and then coming running at me again, and I just shit myself”.[6]
[6]Q&A 179 of the record of interview
27It is clear that the prosecution accepted a plea to this charge on the basis of the material contained in the agreed Prosecution Opening, and that did not include that you had wielded the meat cleaver in a form of excessive self-defence. If in fact you were in fear of the victim in some way, which I have some difficulty in accepting, it makes no sense that you would not simply deliver the money to him by putting it in his letterbox, or slipping it under his door, and texting him that you had done so. Instead, you stayed in the car knowing that you had the meat cleaver with you, and the audio on the CCTV footage (Exhibit “B”) makes it plain that you required him to come out to the car and attacked him very soon thereafter.
28To go armed to someone’s place with such a savage weapon with a 30-centimetre blade to intimidate someone, shows a brutal mindset. Further, as noted in the sentencing remarks of Her Honour Judge Douglas and in those of the Court of Appeal in February and July 2013 respectively, the offending on 12 charges of armed robbery, for which you were sentenced in 2001, and the two charges of armed robbery, for which you were sentenced in 2008, as well as the armed robbery which was the subject of those sentencing remarks, involved the use of a large kitchen knife to confront individuals.
29It would seem that none of the sentences of imprisonment or, indeed, undertaking the intensive violence course that you have apparently completed in prison, have been effective in curing you of a propensity for violence. You apparently brought this meat cleaver to intimidate the victim but it seems that, when he abused you for making him come out to the car to collect his money, you demonstrated an inability to control your anger and responded with violence. Hence, in sentencing you, there is a need for emphasis upon general deterrence, specific deterrence and also protection of the community from you.
30It was submitted on your behalf that your plea of guilty is a remorseful one. Mr Bloemen relied upon the fact that you had driven your victim to hospital immediately after striking his face with the meat cleaver. He also urged the Court to note that you had made admissions in the record of interview and had indicated remorse when you told the police that the victim was your friend and “I felt bad”.[7] Also, when your associates, whom you had sent to visit the victim in hospital, came back and told you that the victim had lost his eye, you stated “I just – I felt sick”,[8] and went on to state that it was not meant to happen like that over $150. You felt bad because he was your mate and it should not have happened like that.[9]
[7]Q&A 309-310 of the record of interview
[8]Q&A 458 and 459 of the record of interview
[9]Q&A 461-464 of the record of interview
31As I stated to your counsel during the plea hearing, whilst those comments in your record of interview may indicate some remorse, the fact of the matter is that you dropped the victim at the hospital with his grave injuries and did not wait around but, rather, drove off and disposed of the meat cleaver. Further, there is no evidence that you sending your emissaries to visit the victim a couple of days later was out of concern to ascertain his state of health, as distinct from whether he had revealed that you were the perpetrator.
32You told police that you had thrown away the meat cleaver because you might get into trouble,[10] and that you had sent your friend in to visit the victim “coz I just wanted a way of – you know, see, you know, if it was over or fuckin’ you know, everything was smooth …”.[11] Thus, whilst you may have feelings of regret about having inflicted an injury on the victim, I find that overall I cannot be satisfied on the balance of probabilities that you have true remorse in the sense of total acceptance of responsibility and genuine contrition because you did embellish things in your record of interview by claiming that the victim had run at you, or come at you, and that you were effectively acting in self-defence when he charged at you. This was as well as having attempted to justify bringing the meat cleaver to intimidate him on the basis of feeling threatened when there was no need to have been in the presence of your victim, in order to repay money to him.
[10]Q&A 474-476 of the record of interview
[11]Q&A 424 of the record of interview
33Thus, whilst you are to be given credit for your plea of guilty, particularly given the constraints of the pandemic when the capacity to run criminal trials has been severely hampered, the value of your plea of guilty is primarily a utilitarian one, in my view. You have facilitated the course of justice, saved the state the time and expense of a trial and spared the victim having to relive this horrendous episode by giving evidence. The prosecution have accepted that your indication of a plea of guilty at the committal hearing on 16 February 2021 was a plea at an early opportunity. Accordingly, you are entitled to a meaningful discount on your sentence because of it.
34Taking into account all the circumstances of your crime, I regard this as a serious example of the offence of recklessly causing serious injury. The fact that the offence carries a maximum penalty of 15 years’ imprisonment is an indication of the seriousness with which this offence is regarded.
35In this particular case, although there is no evidence that you intended to assault the victim when you left your house with the meat cleaver, the fact that you chose to take such a potentially dangerous weapon with you to intimidate him shows that you were aware that there may be a confrontation with the victim. As articulated by the prosecutor, Mr O’Toole, a meat cleaver can only be used in a slashing or chopping-like motion, and it would have been foreseeable by you that, if a confrontation did result and you used the meat cleaver, there was a high probability that serious injury would result if a blade of some 30 centimetres struck the victim, particularly if it struck the victim’s head or face, as it did.
36The use of a meat cleaver to inflict injury is a barbarous act, and a marked aggravating feature of this offending. It has resulted in permanent injuries to the victim of a grave nature: not only the total loss of sight of one eye, but permanent prominent disfigurement by way of scarring to the left side of the victim’s face from his eyebrow through his eye and down to just above his lip. Although there is no Victim Impact Statement, it can easily be inferred that for a 38‑year-old man to bear such injuries for the rest of his life would occasion very significant psychological and physical consequences.
37I have already referred to your extensive criminal history, which is aptly described by the prosecution as appalling. In particular, you have convictions for 17 offences of armed robbery, one of attempted armed robbery, and five of robbery. You have demonstrated that you are a person who has adopted dishonesty and the use of force with weapons, if necessary, as a way of life. In the past you have been given rehabilitative dispositions, including Good Behaviour Bonds, suspended sentences of imprisonment, and a Community Correction Order.
38Unfortunately, your lengthy history of offending has resulted in many terms of imprisonment. In 2013, Osborn JA stated, “Having regard to [your] history and maturity, [you] cannot now be said to have more than limited prospects of rehabilitation.”[12] Further, Nettle JA stated, “In truth one could not realistically regard [your] prospects of rehabilitation as anything more than speculative.”[13]
[12][2013] VSCA 187, page 9 at [31]
[13]Ibid, page 10 at [35]
39While it would be wrong of a court to condemn a person as being incapable of rehabilitation, the fact that this grave offending occurred only slightly more than two months after you had completed a lengthy time in custody of seven and a half years causes me to conclude that your prospects of rehabilitation are far from optimistic. You are now 49 years old and have shown yourself to be incapable, thus far, of committing yourself to ridding yourself of illegal drug habits and, as a consequence, have been a long-term menace to society.
40As I have previously stated, in sentencing you the predominant sentencing principles for this very serious offending must be general deterrence, specific deterrence, and protection of the community. Your counsel has conceded that there is no sentence appropriate other than a term of imprisonment with a head sentence and a non-parole period.
41To some extent I have taken into account your difficult background. I have also taken into account your early plea of guilty and the fact that your period on remand has been more onerous during the restrictions of the pandemic, which have prevented contact visits from family and friends, as well as imposing a regime of reduced out-of-cell hours in order to facilitate social distancing, and a reduction in the availability of rehabilitative programs. I note that some of these restrictions are continuing at the present time and may be ongoing for an indefinite period. However, it is the duty of this Court to impose a sentence which is reflective of the gravity of this crime, and there are few mitigatory factors in your favour.
42On one charge of causing serious injury recklessly, you are convicted and sentenced to be imprisoned for a period of six years. I direct that you serve a period of four years and six months before becoming eligible for parole.
43I declare a period of 468 days’ pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
44Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the total effective sentence imposed would have been seven and a half years’ imprisonment with a non-parole period of six years.
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