Director of Public Prosecutions v Stewart

[2024] VCC 121

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01415

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE STEWART

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2023, 29 January 2024
DATE OF SENTENCE:	5 February 2024
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2024] VCC 121

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Recklessly causing serious injury

Legislation Cited:      Sentencing Act 1991

Cases Cited:Worboyes [2021] VSCA 169, Marrah v The Queen [2014] VSCA 119, R v Verdins (2007) 16 VR 240, Akoka v The Queen [2017] VSCA 214

Sentence:                  Three years three months' imprisonment with non-parole period of two years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. E. Yates	Office of Public Prosecutions
For the Offender	Ms. A. Burnnard	SLKQ Lawyers

HER HONOUR:

1Jamie Stewart, you have pleaded guilty before me to one charge of causing serious injury recklessly, the maximum penalty for which is 15 years' imprisonment.  You have also pleaded guilty to one uplifted charge of committing an indictable offence on bail, the maximum penalty for which is three months' imprisonment.

Circumstances of the offending

2The circumstances of your offending were outlined in Exhibit A, the prosecution summary upon plea dated 6 December 2023. I will summarise those facts here.

3You knew your victim, Mr. Kallai Meehan, through mutual friends.  Mr. Meehan was friends with your former de facto partner Melissa Byrnes and knew her sister Alison Byrnes.

4You had also conducted repairs on Mr Meehan's work vehicle which had been arranged through his employer Matthew King.  There was an ongoing dispute over outstanding payments for this work and you had called Mr King demanding money.

5At 7.00 pm on Friday 27 August 2021, you knocked on the front door of Mr Meehan's home address where he lived with his father, Daniel Meehan.  At this time you were on three counts of bail relating to the related summary charge.

6Daniel Meehan called for his son to come to the door as the dog was barking. However, Mr Meehan was in his bedroom when you first knocked on the front door.

7Instead, Mr Christoper Della-Pietra who was boarding at the address answered the door.

8Mr Meehan then came to the door and Mr Della-Pietra returned to the lounge room.

9You asked Mr Meehan outside for a chat, and not suspecting anything was wrong, he instead invited you inside and led you towards his bedroom.  As you entered the bedroom walking behind Mr Meehan, he became aware that Alison Byrnes was with you and had followed you into the house.

10Mr Meehan's work phone rang and he spoke to his boss Mr King.  You kept interrupting, asking who was on the phone and demanding Mr Meehan's car keys while stating he owed you money.  Mr Meehan continued his conversation with Mr King and told him that you were present.

11Upon hearing this your behaviour escalated and you stepped forward, shouting and knocking the phone from Mr Meehan's hand. As Mr Meehan looked down at his phone you stepped towards him, still shouting.  There was a brief scuffle. 

12Mr Meehan raised his right arm up across the front of his face.  He felt contact on his arm and immediately sensed tingling and numbness in his right hand and fingers.  He went to strike you but could not feel or move his right arm.  He saw he was bleeding and saw a blade protruding from your clenched hand.  This offending forms the basis of Charge 1.

13Mr King remained on the phone and overhead you screaming 'You haven't paid my invoices.'  He also heard Mr Meehan say he had been stabbed. 

14Daniel Meehan rushed to his son's bedroom followed by Mr. Della-Pietra.  Daniel Meehan observed you holding a knife.  You and Alison Byrnes then left the house.

15Mr Meehan was taken to Frankston Hospital where he was treated for a stab wound to his upper right arm.  It was a three centimetre by three centimetre open wound with active bleeding and complete damage to the radial nerve and another nerve to the rear of the forearm resulting in wrist drop, inability to flex or extend the fingers and inability to move the thumb.  Mr Meehan required specialist surgical repair.

16Police were called and conducted investigations.  On 11 February 2022 you were arrested and interviewed at the Frankston police station.  During that interview you stated that:

(i)You fixed Mr Meehan's work Ute about six months ago out the front of his house;

(ii)You know Matthew King as Mr Meehan got Mr King to pay for fixing the car;

(iii)You denied stabbing Mr Meehan;

(iv)You stated that you went to Mr Meehan's address with Alison Byrnes and stayed outside in the car; and

(v)You were owed a debt by Mr Meehan and Matthew King paid you some money out of Mr Meehan's wage, but Mr Meehan gave you nothing.

Objective gravity

17I consider this to be a serious example of the offence of recklessly causing serious injury, with ongoing effects for your victim.

18While there is no evidence that you took the knife into Mr Meehan's house, there was clearly some degree of animosity involved as you attended at his home, uninvited, in pursuit of what you believed to be a debt owed to you. He was unarmed and invited you inside, unaware there was a problem, let alone that he was about to be attacked.

Plea of guilty

19Your plea of guilty was entered in October 2023 after a sentence indication before me.  This plea has significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.  In those circumstances you have facilitated the administration of justice and you are entitled to a benefit for that.

20The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169 considerations are somewhat engaged as your plea was entered during the tail end of the pandemic. This results in a somewhat more pronounced amelioration of sentence than at other times.

Victim impact statement

21I received a victim impact statement from Mr. Meehan, Exhibit B.  I note that the injuries were severe and required surgical intervention.  Mr Meehan details the compromised function of his right arm, his inability to work and the anxiety and constant fear of further harm he experiences.

22It takes little to imagine the fear and the pain he must have felt as a consequence of your offending, together with his ongoing frustrations arising from his injury.

Personal circumstances

23I turn now to your personal circumstances.

24You are now 39 years of age, having been born in October 1984.  You were raised by your mother in Tasmania after your parents separated when you were young.  There was family violence in the home.  You have two paternal half siblings and four maternal half siblings, all older than yourself.

25You had intermittent contact with your father after your parents separated and after some 15 years without contact located him in a Morwell nursing home in November 2020.  He was in poor health and passed away that month.

26Your mother re-partnered with a man who was a positive influence in your life, introducing you to boxing in your teenage years.

27You were educated until Year 10.

28At the age of 15 you first suffered prolonged sexual abuse perpetrated by a police officer who cautioned you in relation to your first criminal matter.  You then developed a drug addiction which led to further criminal offending.

29You reported using ecstasy and amphetamine since the age of 15.  You have also used cocaine recreationally and methamphetamine intravenously, together with GHB and steroids.

30At the age of 17 you were again repeatedly sexually offended against by a prison doctor while in juvenile detention at the Ashley Youth Detention Centre in Tasmania.

31You had a five-year relationship which produced your now 13-year-old son.  You have been in another relationship since 2014 and have a second son now aged seven who resides with your mother.

32You have worked in various short-term roles, your employment having been affected by your mental health and substance abuse issues.

33You are now supported by 'Voice of a Survivor,' a representative of which has provided a reference to the court dated 24 June 2022, and you have made a police complaint and commenced civil proceedings.  I received a report from psychiatrist Dr Helen Schultz dated 22 August 2023 recounting the abuse you were subjected to.  She diagnoses you with post-traumatic stress disorder, severe substance use disorder and major depressive disorder.

34I further received a psychological report from Carla Ferrari dated 1 October 2023.  She notes the above diagnoses.  She is of the view that you are for the first time attempting to address your key criminogenic risk factor, being unresolved trauma.  Ms Ferrari nevertheless finds you to be a high risk of general recidivism.

35Both the psychologist and psychiatrist refer to your past and present suicidal ideation.

36I received a neuropsychological report from Dr Laura Anderson dated 4 December 2023.  She confirms the diagnoses above and opines that your cognitive function remains intact. She notes your self-reported difficulty with attention, concentration and memory functions and found this to be commensurate with the testing she administered.  However, she found no specific neurological condition or disorder per se.

37I received an addendum report from Dr Anderson dated 23 January 2024.  While she summarises a number of medical events in your past, her overall clinical opinion remains largely unchanged, that is, your clinical presentation is for the most part attributable to your complex trauma history.

38I have also received two references from Mr. James Gilbert with whom you were living and working when out of custody.  Mr. Gilbert attended court to support you and will provide you with employment upon your release.

39I note that to your credit you have completed a number of courses and qualifications in custody.  You clearly have the capacity for education and employment.

40While on bail between January and May 2023 you successfully completed CISP, engaged with alcohol and drug rehabilitation and remained substance free and spoke to police about your childhood abuse. 

41I have also received a number of character references, a letter from you to the court and a letter of apology to Mr. Meehan.  You have demonstrated remorse and some insight into your offending.

42Upon your release from custody in November 2023 you further engaged with the Australian Forensic Treatment Rehab Substance Abuse Treatment program.

43I heard evidence from Mr. David Millar, the therapeutic program leader from AFTR.  You have fully engaged with the AFTR program in the time available to you which is to be commended.  You have attended approximately 20 sessions with Ms. Sophie Russell, an AFTR psychologist, throughout 2023 and have approximately 10 sessions to go. 

44You have attended one men's behavioural change session and I note from an addendum report that you are now participating in this program whilst in custody.  Mr. Millar gave evidence that you attended 29 out of 40 'aftercare' sessions at AFTR in the three weeks you were on bail and have demonstrated a commitment to the program throughout the year.  He believes you are genuine about your recovery. 

Sentencing factors and considerations

45Mr Stewart, there is absolutely no excuse for the violence you inflicted upon Kallai Meehan.  This was a violent unprovoked attack on a man who had invited you into his own home.  His injuries were serious and the repercussions are ongoing. 

46You have an extensive criminal history, having spent some 12 of the past 23 years in custody.  You have committed a number of offences involving drugs, violence, weapons, dishonesty and property offences. 

47While you are not to be resentenced for those offences, they do inform the role of specific deterrence, rehabilitation and community protection in the sentencing exercise.

48I am not satisfied that your moral culpability is reduced by your trauma.  It was submitted by Ms. Burnnard on your behalf that your cognitive efficiency is reduced at times of stress because of the trauma you suffered as a child.  This may be so, but it has been compounded by your drug use.  It was submitted that your drug use is a direct result of your abuse and so in turn is also attributable to your childhood trauma.  I find no nexus between your mental condition and the offending.

49It was similarly submitted that you are not an appropriate vehicle for general deterrence by virtue of your abuse at the hands of a police officer.  I disagree.  Your offending on this occasion had nothing to do with police and was rather an example of you taking the law into your own hands and trying to recover a debt from your victim.

50As held in Marrah v The Queen [2014] VSCA 119, I note the effects of childhood trauma do not diminish over time.  I do take your childhood experiences into account and moderate the sentence accordingly but not by way of the specific application of R v Verdins (2007) 16 VR 240, Limbs 1, 3 and 4. 

51I give modest weight to Verdins Limbs 5 and 6 due to the restrictions on access to investigation of your possible epilepsy.  I note this was put by Dr Anderson in terms of 'may' need assessment.

52While you have on this occasion demonstrated some remorse and insight into your offending, I consider that specific deterrence remains a relevant consideration.

53Similarly, general deterrence must feature in the sentencing synthesis to discourage others from committing acts of violence such as this.  The community must also be protected from you and outbursts of violence such as this.

54I have also considered just punishment and denunciation.

55Your engagement with AFTR when out of custody this year bodes well for your rehabilitation, as does your living and working with Mr. Gilbert.  You have spent a considerable portion of your life in custody and I consider your prospects to be guarded, conditional on you remaining abstinent from illicit drug use and engaging in further counselling and treatment.

56I do not consider your AFTR counselling commensurate with inpatient rehabilitation as per Akoka v The Queen [2017] VSCA 214.  I do, however, take your efforts with AFTR into account and they are, as I have stated, commendable.

57I have further considered the principle of totality, noting the time you have spent in custody since this offending which is not attributable to this sentence by way of pre-sentence detention.

58Would you please stand, Mr Stewart.

Disposition

59On Charge 1, recklessly causing serious injury, you are sentenced to three years and three months' imprisonment.

60On the related summary charge of committing an offence whilst on bail, you are sentenced to one month imprisonment, concurrent with the sentence imposed on Charge 1.

61That makes a total effective sentence of three years three months' imprisonment.

62I order that you serve two years of that sentence before being eligible for release on parole.

63I declare that you have served 168 days by way of pre-sentence detention, excluding today.

64Pursuant to s6AAA of the Sentencing Act 1991 I direct that had you not pleaded guilty the sentence I would have imposed would have been four years six months with a non-parole period of three years to serve before being released on parole.

65You may be seated.

66Is there anything else from either party?

67MS YATES:  No, Your Honour.

68COUNSEL:  No, Your Honour. 

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