Director of Public Prosecutions v Stewart

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-00172

DIRECTOR OF PUBLIC PROSECUTIONS

TIM STEWART

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2021
DATE OF SENTENCE:	23 July 2021
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2021] VCC 1007

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:

Legislation Cited: Crimes Act 1958 s 16; Corrections Act 1986; Sentencing Act 1991 s 16(3)
Cases Cited:Roach v R [2020] VSCA 205 ; R v Mangelan [2009] VSCA 63; R v Verdins (2007) 16 VR 295; DPP v Baea [2018] VCC 1580; DPP v Teuira & Anor [2020] VCC 737 (3 June 2020)
Sentence:4 years 4 months imprisonment, 2 years 10 months non-parole period; 6AAA – 7 years, 5 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	Office of Public Prosecutions
For the Accused	Ms N. Kaddeche	Leanne Warren & Associates

HIS HONOUR:

Tim Stewart, you have pleaded guilty to the offence of causing serious injury intentionally contrary to s16 of the Crimes Act 1958 which carries the maximum penalty of 20 years' imprisonment.
This offence is a Category 2 offence. What this means for sentencing purposes is that you face a mandatory period of imprisonment (as there were no exceptional circumstances raised on your behalf) on this charge.
You are to be sentenced as a serious violent offender. I cause the fact that you are sentenced as a serious violent offender to be noted on the records of the court.
You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.

Circumstances of the Offending

The Crown tendered the summary of prosecution opening as Exhibit A. The summary of your offending is as follows:
On 7 December 2018, you were sentenced to a term of four years imprisonment with a non-parole period of two years and six months to serve on a charge of (amongst others) armed robbery. You were serving that sentence at the time you committed this offending.
The victim was aged 71 at the time of your offending and was also serving a term of imprisonment within the Dunmore 'Protection' Unit at the Ravenhall Correctional Centre which accommodates vulnerable prisoners.
You were also resident in the Dunmore Unit. You were housed in a cell next to the victim.
In late October 2019, you enquired with fellow prisoners as to the possibility of obtaining a knife, offering the sum of $140 to anyone who could assist you.
On 28 October 2019 at approximately 11 am, you called your mother, Joy Stewart, asking her to confirm her bank account details and telling her that your partner was going to send in $140 and you needed to ensure that the money was in the bank account. This call was recorded by the Prison Intelligence Unit.
You obtained a metal butter knife, approximately 21 centimetres in length, from an unknown person within the prison. You also acquired two pieces of sandpaper from the prison workshop which you used to sharpen the tip of the knife blade. You used a T-shirt to wrap around the knife handle to form a grip and stabbed a bible in your cell to test the sharpness of the blade.
On Friday 1 November 2019, at approximately 3.35 pm the victim was in the communal kitchen. A short time later, you observed the victim in the kitchen. You returned to your cell and secreted the sharpened butter knife down the front of your shorts.
You entered the kitchen, removed the knife from your shorts and ran at the victim yelling, 'I am going to fucking kill you now, you kiddie fucker.' You stabbed the victim once in the back near the left shoulder blade. You repeated your threat and stabbed the victim a second time to the left side of his back, puncturing his left lung.
The force of the stabbing caused the knife to bend in half and become ineffective. Further stabbing motions were also ineffective and caused only minor cuts and bruises to the victim's forearm. You forced the victim against the sink and swiped the broken knife at his head. The victim fell to the ground at which point you stomped on his right temple, causing a laceration.
As you sat on the victim's chest and raised the knife, another prisoner intervened and pulled you backwards. A number of prison officers also intervened.
The offending was captured on CCTV. The footage shows your initial attendance in the kitchen area and then returning to your unit to obtain the knife when you realised that your victim was in that area. The footage then graphically depicts your attack on him. In particular, it shows the advantage of surprise as you attacked your victim from behind when he was off-guard, and the violence and ferocity of your conduct.
You were taken to an interview room and immediately gave your reason for stabbing the victim as 'due to his (that is the victim's) criminal offences' which you believed to include offending against children.
Prison officers overheard you state, 'Don't worry, he won't be getting up' and later 'I didn't do a good enough job, I'll get that cunt when I see him next.'
The victim was taken to hospital and found to have superficial wounds to the right temple, lower neck and forearm, and stab wounds to his left shoulder and left side of his back. He required treatment and was sutured with the draining of blood from his left lung.
You made no comment in your interview with police.

Objective Gravity and Moral Culpability

I turn to the objective gravity of and your moral culpability for your offending.
The seriousness of the offence of intentionally causing serious injury is marked by the maximum penalty imposed by Parliament – a term of 20 years' imprisonment. Moreover, the fact that Parliament has made this offence a Category 2 offence marks the fact that, as I have already noted, a term of imprisonment must be imposed for this crime.
Next, as you are being sentenced as a serious violent offender, the law requires that I consider the protection of the community as the principal purpose for which the sentence is imposed. It is unnecessary in this case to impose a disproportionate sentence to achieve that purpose.
Nevertheless, the seriousness of your offending and your moral culpability for it are marked by the following factors:
·First, your offending is marked by a considerable degree of planning - you had to obtain a knife which was not readily available to you, and you took a number of steps to obtain money to purchase that knife;
·Second, as the knife you obtained was a butter knife, you also obtained sandpaper and engaged in considerable industry to sharpen the end into a pointed tip, which you tested by stabbing a Bible;
·Third, you secreted the knife to avoid detection;
·Fourth, you undertook a reconnaissance of the scene before returning to your cell to obtain the knife;
·Fifth, you then attacked your victim from behind to gain the advantage of surprise (even though have youth on your side);
·Sixth, you continued your attack until others intervened;
·Seventh, your motives for the attack were entirely indirect. You had no link to your victim but appeared motivated by a desire to punish him for what you perceived his offending to have been;
·Finally, in this respect, you threatened to kill the victim. Even after prison officers intervened and you were restrained, you were heard by prison officers to say you intended to complete the job. That is, by killing or incapacitating your victim at a later time.
Moreover, it has often been observed that the courts 'cannot allow the law of the jungle to take hold in prisons'. This is particularly apposite in this case, where you appear to have been motivated, not out of any personal animosity or grievance, but by your perception of the victim's past offending. The point of the prison sentence imposed on your victim is that society, through the lawful sanction of the court system, decides and metes out appropriate punishment . It is not for the stronger or the stealthy to take justice into their own hands.
The victim made a victim impact statement dated 22 February 2021, which was read to the court. It is apparent that he was still suffering from the psychological and physical consequences of your attack. As the stab wound you inflicted punctured his lung, he suffers from a persistent cough in the need to clear his lungs. The victim feels that the psychological trauma of the attack will stay with him for the rest of his life.
The offence of intentionally causing serious injury may cover a broad range of circumstances. Further, there may be a broad range of injuries inflicted and suffered within the definition of 'serious injury'. I am satisfied that, as serious as your attack was, and as serious as the injuries to your victim were, the objective gravity of your offending and the injuries caused were not at the high end of the scale when compared to other cases which come before this court and the Supreme Court.
I shall return to the question of your moral culpability for your offending after I have outlined your personal circumstances and the findings of the neuropsychologist Dr Laura Anderson.

Personal Circumstances

I turn now to a consideration of your personal circumstances.
You are 37 years of age and were born in January 1984. You were born and raised in regional Victoria. You have one older brother and one older sister.
You described your family as prosocial, positive and supportive. Your parents divorced when you were 14 years of age. You maintain a positive relationship with your family at present.
You lived independently in rental accommodation until the age of approximately 24, after which time you intermittently experienced periods of homelessness.
You have never been in a significant romantic relationship and do not have any significant social supports.
After leaving school, you worked in a supermarket for approximately five years. You then worked as an apprentice baker for approximately four years but stopped that employment just before completing your apprenticeship. It appears you have been unemployed for about six years and now receive a disability support pension from Centrelink.
You had a considerable number of prior court appearances dating back to 2005. Some of your appearances include the following:
·In 2005, you faced court on charges of unlawful assault and possess dangerous article and were placed on an adjourned undertaking;
·In 2006, you faced court on charges of assault and threatening words in public and received a community corrections order;
·In 2010, you faced court on charges of threat to kill, assault, criminal damage and use carriage service to harass. Again, you were placed on a CCO.
·In 2012, you faced court on charges of threat to kill, intentionally cause injury, and criminal damage and received a term of three months' imprisonment
·In 2016, you faced court on charges of prohibited person possessing a firearm, threat to kill, use a carriage service to harass, charges of assault, and assault with a weapon and received a term of 14 months' imprisonment;
·In 2017, you were charged with contravening a family violence safety order and criminal damage and were sentenced to 57 days' imprisonment; and
·In 2018, you were sentenced for armed robbery, persistent contravention of a family violence order and using a carriage service to menace. On that sentence, you were sentenced to four years with a non-parole period of two years and six months to serve.
I have read the psychological reports of Dr Laura Anderson, clinical neuropsychologist. Dr Anderson was previously employed as the clinical manager of the specialist unit at Ravenhall Correctional Centre. There, she oversaw the clinical service delivery of offending behaviour and alcohol and other drug treatment to the forensic mental health units.
Dr Anderson provided two reports; dated 28 May 2021 and 11 July 2021. It is important to refer to both reports in some detail.
Dr Anderson was provided with a previous report of Dr Aaron Cunningham in 2018 and a referral letter from your community-based GP Dr Jabbapour from 2017 as well as information provided by you in interview.
Dr Anderson reported that you presented with a long history of mental health issues. You suffered from social anxiety through childhood. Your mother noticed that as a late adolescent or teen, your paranoid thinking increased and your mood state deteriorated.
You have a long history of experiencing anxiety and substance abuse. You have been prescribed benzodiazepines on multiple occasions by various community-based general practitioners but also blacklisted by a number of community medical centres because of ongoing and aggressive behaviour.
In 2017, you were experiencing suicidal and homicidal thoughts. You were hospitalised a week after for erratic and panicked behaviour in the community. At hospital you presented as aggressive. Your long-standing GP had (before your imprisonment) refused to continue treating you because of your continued aggressive behaviour.
Dr Anderson noted that although you receive a disability pension 'for schizophrenia' she was unable to find any records relating to a formal diagnosis or treatment for schizophrenia.
You reported to Dr Anderson that you had suffered from a deterioration in your mental health in the period leading up to the offending. You stated that you had spent time in the mental health unit at Ravenhall and even a brief period at the Thomas Embling hospital.
In her addendum report of July 2021, Dr Anderson reports that you were discharged in early July 2019 from the forensic mental health unit at Ravenhall and transferred to larger, main protection unit where you were residing at the time of your offending. Dr Anderson reviewed medical notes and found your presentation appeared relatively stable for a number of months leading up to offending. Further review of your notes did not reveal any specific mental health engagement or concerns with your presentation in the lead up to 1 November 2019. On 2 November 2019, mental health services were engaged because you said you wanted to 'knock yourself' but you were assessed and reviewed, and found to be fit for interview by the police.
In her first report, Dr Anderson states that you reported daily alcohol use from the age of 20 together with abuse of cannabis, amphetamines and methylamphetamines. You told Dr Anderson that you had used ice (that is, in custody) in the week before this offending. You reported that whilst you had once been addicted to benzodiazepines, you had 'overcome' your addiction whilst on remand.
You reported six previous unsuccessful attempts at detoxification programs whilst in the community.
You told Dr Anderson that you committed the offence after you heard the victim and his mates talking about his (that is the victim's) offending in the cell next door. Dr Anderson reported:
'When asked about his underlying motivation for the assault or the potential implications of the assault, Mr Stewart stated that he "didn't really think about it". In relation to his sense of remorse for his alleged offending, Mr Stewart went on to explain "I don't feel sorry for the victim, I don't have any remorse for what I did to him."'
You reported to Dr Anderson that you are not distressed or concerned at the prospect of a further term of imprisonment.
Your protection status as a prisoner derives from your vulnerability caused by your mental health issues. Dr Anderson considers that it is unlikely that your protection status will ever be removed.
In her opinion in her first report, Dr Anderson proposed that you meet the diagnostic criteria for schizophrenia – continuous type. She considers that a previous diagnosis of drug-induced psychosis should be considered as a separate, standalone illness. Dr Anderson's concludes that 'schizophrenia as a standalone mental illness is a more appropriate diagnostic label and conceptualization' of your mental health needs.
In addition, Dr Anderson considers you meet the diagnostic criteria for various drug and alcohol use disorders (in early remission in a controlled environment, being prison) according to your long-standing abuse of benzodiazepines, methylamphetamines, cannabis and alcohol. Ultimately, Dr Anderson considers your drug and alcohol use is probably a maladaptive coping mechanism for your psychological distress.
I should add there that Dr Cunningham had previously concluded that you suffered from stress and anxiety and drug use disorder.
Although it is a long quotation, it is necessary to restate a key part of Dr Anderson's first opinion. In her May report, she said as follows:
'In my clinical opinion, it is evident that Mr Stewart's enduring psychotic disorder and his ongoing experience of paranoid thinking contributed to his current alleged offending. Whilst it does not appear that he was experiencing an active episode of psychosis at the time of the alleged offending, it appears that the residual symptoms of paranoia, poor emotional regulation and poor impulse control contributed to his perpetration of an assault upon another prisoner. Whilst it is established that the alleged victim of Mr Stewart's offending was incarcerated for child sex offences, it is not clear as to whether Mr Stewart may have also been experiencing some elements of delusional thinking with regard to his assertion that the alleged victim was openly discussing aspects of his past offending within the prison environment. It is opined that Mr Stewart's underlying mental illness may have exacerbated his fixation upon the alleged victim's past child sex offences and as such contributed to his motivation for perpetrating the assault upon him. Moreover, it is clear that Mr Stewart's mental health is poorly managed in the community and in custody and in a general sense this contributes to a significant difficulty in regulating his emotional response to perceived distress and as a result he has a tendency to react impulsively to various stimuli in his environment.'
Then at 8.1 of the May report, Dr Anderson stated:
'It is opined that Mr Stewart's enduring experience of paranoid and delusional thinking associated with his mental illness contributed to his perpetration of the current alleged offending behaviour.'
I refer back to the subsequent review of medical notes undertaken by Dr Anderson and reported on 11 July 2021. I can only take it that her report – that is that you had been generally stable in the period immediately before this offending – operates as a qualification on the opinion that she expressed in her May report.
Moreover, in her report of 11 July 2021, Dr Anderson concludes at paragraph 3.2 that 'there remains some uncertainty regarding the appropriate diagnostic label to characterise Mr Stewart's presentation'; noting, however, that your difficulties have been significant enough to warrant pharmacotherapeutic intervention; and that there has been a long history of escalation in overall agitation, self-harm and verbally and physically aggressive behaviour towards others when your mental health symptoms escalate.
In my view however, the key appears to be at 3.3 of her addendum report where Dr Anderson states in part:
'It remains my clinical opinion that his complex clinical profile and underlying mental health needs, was likely to have to some extent contributed to his perpetration of the agitated aggression towards another prisoner. It is hypothesised that it may be possible that at the time of the alleged offending Mr Stewart was experiencing a deterioration in his mental health, characterised by an increase in paranoid and aggressive thinking. His apparent underlying disordered personality traits are likely to also contribute to Mr Stewart's engagement in the alleged offending behaviour because personality traits of this nature increase his likelihood of utilising anti-social means to have his needs met.'

And then she says, 'It is pertinent to note that this hypothesis is simply that, a speculation based upon consideration of Mr Stewart's past and current clinical presentation' [my emphasis].
Dr Anderson then hypothesised that it was possible that prison authorities had overlooked subtle signs of a deterioration in your mental state once you were moved back to a larger protection unit.
Ultimately, Dr Anderson considers that your enduring mental health issues represent a significant risk factor to you engaging in further paranoia-driven but impulsive offending in the future. I would add also your mental health needs and treatment present as the most prominent issue for your rehabilitation. To this, I would also add the need for treatment for your drug and alcohol issues.
At present, I can only assess your prospects for rehabilitation as poor.
Ms Kaddeche who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:
·First, there is a utilitarian value attaching to the early plea of guilty and I agree with that;
·Second, you have been in custody since November 2017 when you were arrested in relation to the charge of armed robbery. The principle of totality must operate to ensure the sentence I impose upon you does not result in an overall sentence which is crushing in all the circumstances. I will say more about totality shortly;
·Third, the principles in the case of Verdins are enlivened, and that I should find that your mental health issues reduce your moral culpability. In addition, your mental health issues affected your mental capacity at the time of offending and provide a basis for moderation of both general and specific deterrence.
·Finally in this respect, Ms Kaddeche agrees that your prospects for rehabilitation are significantly dependent upon the support assistance you receive to treat your mental health and drug abuse issues.
Mr Hayward for the Crown agreed that I must take into account the utilitarian value of the plea of guilty. Both Mr Hayward and Ms Kaddeche also submitted that I should take account of the effect of the lockdown or lockdowns caused by the COVID-19 pandemic.
Your time in custody on this occasion has been affected by the COVID-19 pandemic lockdowns. The immediate effect of the lockdowns over the last 18 months had been a reduction and suspension of vocational and personal improvement courses, a restriction on your ability to move around the prison, a severe reduction in work available and a suspension of visits.
The other more insidious effect of the pandemic and lockdowns, particularly in 2020, was the stress caused by isolation. There is stress caused by the fear that the pandemic would penetrate into the prison system, and so isolation was used as a strategy to limit close contact.
I shall take this into account as a mitigating factor in the sentencing process.
Mr Hayward submitted that the question of totality was affected by the operation of the serious offender provisions and also the question of whether your offence was a 'prison offence' for sentencing purposes.
The effect of your offending being a 'prison offence' would be that the sentence to be imposed must be made cumulative on the sentence you are undergoing 'unless otherwise directed because of the existence of exceptional circumstances': see s 16(3) of the Sentencing Act. A 'prison offence' is defined as a contravention of the Corrections Act1986 or the regulations made under it.
Ultimately, by written submissions made after your plea, Mr Hayward submitted that your offending does constitute a prison offence as the Court of Appeal in Roach v R accepted that the offence of recklessly causing injury is encompassed within Regulation 65(1)(a) of the regulations being 'assaulting or threatening a person'.
Although I did not receive detailed submissions upon the issue in reply from the defence, I do consider that the offence of intentionally causing serious injury is capable of being encompassed within Regulation 65 and therefore constitutes a 'prison offence'.
Before I return to the effect of this issue on the sentencing consideration, I will note Mr Hayward's other submissions. The Crown submits that the principles in Verdins are not enlivened in this case. Essentially, the Crown submits that I cannot be satisfied that your mental health issues caused this offending.
Mr Hayward also submitted that I must give full consideration to the intention of the Sentencing Act in relation to cumulation. That is, the serious violent offender provisions and the 'prison offence' provisions both call for cumulation as the starting point. Nevertheless, Mr Hayward submitted that such a starting point does not have the effect that totality becomes an irrelevant consideration. Accordingly, it may still operate to reduce the head sentence and non-parole period, but Mr Hayward submitted it must be applied in a manner which will not undermine the legislative policy inherent in s 16(3) of the Sentencing Act. In this respect, Mr Hayward referred to the case of R v Mangelen.

Analysis

I turn now to my analysis of the submissions. The plea of guilty does have utilitarian benefit in the sentencing consideration in this case and I will use it to mitigate the sentence I impose upon you.
The principle of totality must operate in this case to ensure that the aggregation of sentences reflects a just and appropriate measure of your criminality: Mangelen. I therefore take into account:
·First, the fact that you have been in custody since late 2017;
·Second, a sentence of four years with two years six months to serve was imposed on 7 December 2018 (with an allowance for pre-sentence detention reckoned as already served);
·Third, you were denied parole on that sentence on the basis of this offending so far as I can take that into account;
·Finally, what this means is that you have now completed all but a few months of the full sentence imposed in December 2018.
In the circumstances, any order for concurrency of the sentence which I impose would cause only an overlap of three or four months out of a sentence with a four-year term.
In my view, this last factor does operate as exceptional circumstances for the purposes of the operation of s 16(3). In coming to this view, I also take into account the whole of the evidence presented in relation to your mental health issues which I am about to discuss again.
Dr Anderson's report of 11 July 2021 is significant to my consideration of the application of the Verdins principles.
It is undoubted (and accepted) that your mental health issues have plagued your well-being for years. Often, these mental health issues have been impacted and probably exacerbated by your drug use.
There is no evidence that psychosis or any other obvious manifestations of your illness were prominent in the period leading up to or on the day of your offending. Indeed, when you were assessed by forensic officers the next day, you were considered fit to be interviewed by police.
Moreover, this was not impulsive, inexplicable or spontaneous offending. On the contrary, it was very carefully and deliberately planned and executed.
On the evidence provided, I cannot say that your plans were formed from (that is, caused by) delusions or thought disorder. It may well be that your illness made your conduct more disinhibited and may be that it contributed to your thought patterns in the period leading up to the offending; but in the end, Dr Anderson could only offer these matters as a hypothesis.
In my view, the offering of a hypothesis is insufficient for me to conclude that your moral culpability should be reduced and that general and specific deterrence should be expressly reduced. I am not satisfied that the relevant principles enunciated in Verdins have been enlivened.
In the end, I find your moral culpability for your offending to be high. Your criminal conduct must be met by principles of protection of the community, deterrence and just punishment.
I do, however, take into account and give weight to your mental health issues in the whole of the circumstances personal to you.
I also intend to moderate slightly the head sentence and non-parole period which I will impose upon you as well as order this sentence be served concurrently with the armed robbery sentence you are currently undergoing. I consider this necessary in order to give proper effect to the principle of totality in this case.
The Crown provided me with a table of cases. The more recent of those cases, Baea and Teuira, were examples of offending and injury which were more serious than that you inflicted. Saleh perhaps bore the most similarity to your situation but was a finding of guilt rather than a plea of guilty. In the end, however, I cannot be overly influenced by the sentences imposed in other cases. I must impose the sentence which I consider best reflects the whole of the objective factors of your offending, and then takes into account the matters personal to you (so far as they can mitigate your offending).
Accordingly, on Charge 1 of intentionally causing serious injury, you are convicted and sentenced to four years and four months' imprisonment. I order that you serve two years and 10 months before you become eligible for parole.
The 6AAA declaration is that but for the plea of guilty, I would have imposed a sentence of seven years with five years to serve. That statement of sentence does not take into account the reductions made for totality in this case.
I make the disposal orders sought by the Crown.
I order the fact that you were sentenced as a serious violent offender to be entered on the records of the court.
MS KADDECHE: As Your Honour pleases.

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[2021] VCC 1007

23 July 2021