Director of Public Prosecutions v Tempo
[2021] VCC 273
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01644
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM RHYS TEMPO |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 March 2021 |
DATE OF SENTENCE: | 16 March 2021 |
CASE MAY BE CITED AS: | DPP v Tempo |
MEDIUM NEUTRAL CITATION: | [2021] VCC 273 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Plea of guilty one charge recklessly causing serious injury – 2 charges handling stolen goods – summary charge committing offence whilst on bail - assisted co-offender who produced knife and stabbed victim - co-offender sentenced by Children’s Court
Tempo assaulted victim with walking stick - victim sustained open skull fracture and broken arm - offender victim of prolonged family violence as a child – bullied at school and at work – need for general and specific deterrence
Cases Cited: Bugmy v R [2013] HCA, Verdins v R [2007] VSCA 102, Sarjeant v R; Garratt v R [2020] VSCA 45, Marrah v R [VSCA] 119 at [16]
Sentence: Total effective sentence of 3 years with non parole period of 2 years. 440 days PSD
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Kretzenbacher | OPP |
For the Accused | Ms K. Rolfe | Camerons |
HER HONOUR:
1Adam Rhys Tempo, you have pleaded guilty to one charge of recklessly causing serious injury and two charges of handling stolen goods. You have also pleaded guilty to a summary charge of committing an indictable offence while on bail. The maximum penalties for each of the indictable charges is 15 years' imprisonment and three months or 30 penalty units for the summary offence.
The offending
2The victim of the offending was a 35-year-old man, Christopher Hill. On the night of 7 November 2019 between about 11.15 to 11.30 pm, he was walking with a friend, Richard Kernaghan, near the entrance to a park in Cobram.
3Around that time, you and the co-accused, Lucas White[1], aged 17, were seen in the park by a witness, Jake Wilson, who knew White from school. He described you both as being affected by something. Wilson had a short conversation with White and left.
[1]A pseudonym.
4You and Lucas White ran towards Hill and Kernaghan. You were carrying a walking stick and yelling an accusation at Hill. Lucas White demanded of Hill his wallet, ID and phone. Hill replied that he did not have his wallet, only his phone. You hit Hill with the walking stick many times to his body. Hill held up his left arm to defend his head from the blows. White held a knife and said, 'You want this in ya? Tell me who you are?' You said, 'Yeah, it is him. It is that cunt.' This was a reference to events which had occurred in recent weeks following the death of one Neville Jones, a friend of Hill’s.
5Hill had been cleaning out Neville Jones' house after his death assisted by Neville Jones' daughter, Melissa Jones. Hill and Melissa Jones had a falling out over a suspected broken key. Jones threatened Hill via text messages that she would get him assaulted by Lucas and others. Jones had since reported to police that Hill had stolen her father's money and this is being investigated by police.
6Melissa Jones is a friend of yours and is a cousin of Lucas White. You knew about the alleged theft from Mr Jones but you had not been party to any plan. When Hill was trying to fend off the attack, he grabbed the stick and tried to pull it from your grip. White then stabbed Hill to the back of the head with his knife. The victim later stated that this caused him to be dizzy and he fell to the ground. White then walked away.
7Because you assisted White and knew that he was likely to seriously injure Hill, you were charged with and have pleaded guilty to Charge 1, recklessly causing serious injury.
8You continued to assault Hill with the walking stick while he was on the ground. Around that time, another witness, Ryan Berdini, heard men yelling and someone call, 'Help'. He heard what he described as, '… a sickening sound that sounded like something solid was hitting a person'. Berdini recognised White as the two of you walked from the park. You were bragging about “getting” the victim saying you had ‘…got him good’.
9Hill ran to the house of a friend where he was given first aid and then driven to Cobram Hospital. From there, he was taken by ambulance to Shepparton Goulburn Valley Hospital where he was diagnosed with a fractured skull. He was transported to Royal Melbourne Hospital where he underwent surgery on his fractured skull and treatment for a broken arm.
10Police went to your residence next morning and found a stolen Sony stereo and a stolen portable cooktop; Charges 2 and 3 arise from this.
11White was arrested soon afterwards and a walking stick and knife were located in his possession. You were then arrested and interviewed. You denied all the charges.
12You were on bail at the time in relation to shop stealing charges that had occurred in October, hence the charge of committing an indictable offence while on bail. You were also serving a Community Correction Order and were
non-compliant at the time.The injury to the victim
13The victim had initial surgery, a craniectomy for an open skull fracture which meets the definition of a serious injury. He was discharged from hospital on 11 November, and his mother had to change the bandages to his head wound daily as there was a serious risk of infection.
14During the surgery, part of his skull had had to be removed and a second procedure was required to replace it with a mesh plate. In February 2020, he was placed on a waiting list classified as semi-urgent with desirable admission within 90 days. However, due to COVID-19, it was delayed until December 2020 when a cranioplasty was performed.
15Mr Hill provided a victim impact statement dated 17 January 2020 before he was placed on the waiting list for the further surgery he needed. At that time, he was in constant pain suffering extreme headaches. He was still suffering from the fear he experienced at the time of the assault. He was unable to drive and felt isolated and was unable even to help his mother around the house. He was easily irritated and angry and said he needed psychological help, which he had been unable to seek because of the ongoing surgical procedures.
Arrest
16Upon your arrest, you were remanded in custody, and released on bail on 16 July 2020. You breached your bail conditions by not living at your mother's address and bail was revoked on 8 August. You have remained in custody since then with a total of 440 days by my calculation of pre-sentence detention.
Gravity of the offending
17To gauge the gravity of the offending in this case, it is necessary to consider the seriousness of the injury inflicted on Mr Hill. The Crimes Act defines serious injury as an injury that
(i) endangers life, or
(ii) is substantial or protracted.
18The prosecution relied on the report of Dr Caroline Bolt of the Victorian Institute of Forensic Medicine. She stated that,
'An open fracture to the skull can be a potentially life-threatening injury due to its complications.'[2]
[2] VIFM Statement by Dr Caroline Bolt dated 10 January 2020 [4.1]
19Dr Bolt went on to say,
'To avoid [the above] serious complications, most open skull fractures require surgical management (as described in Mr Hill's case).'
20On this basis, the prosecution position was that both limbs of the definition of serious injury were represented by Mr Hill's condition.
21By contrast, the defence position was that only the second limb was made out, that is the fracture to the skull was substantial and protracted and there is no evidence to support that the injury endangers life.
22Fortunately, the craniectomy performed upon his admission to hospital revealed that the dura, the lining covering the brain, had not been breached. The fact that daily dressing of the wound was required after his discharge from hospital, and that eventually the part of his skull that had been removed had to be replaced with a mesh plate, indicate that the injury was substantial and protracted.
23If one of the complications referred to by Dr Bolt had occurred, it would have been life threatening, but the surgical procedures prevented those complications from occurring. There is no evidence to the effect that if untreated, this injury would have resulted in the victim's death. It would have been a possibility which falls short of the required standard of proof beyond reasonable doubt.
24I was referred to the decision in Sarjeant v R[3] where the injury was a severed artery on the scalp and the very certain medical evidence was that if the wound had been left untreated, the victim would have died of blood loss. By contrast, it is not certain in this case that Hill would have died from his injury if it had been left untreated. While certainty is not required, the necessary standard of proof is not met.
[3] Sarjeant v R; Garratt v R [2020] VSCA 45
25It follows that you are to be sentenced on the basis that the injury was serious according to the second limb of the definition but not the first.
26Other aspects of the gravity of the offending include the fact that it occurred at night and in company and weapons were used. You had a walking stick with you for assistance with your back pain and I accept that you did not plan to use it to assault Mr Hill, nor is there any evidence that you knew Mr White had a knife. Your plea is made on the basis that you knew when he produced it that serious injury would probably result.
27The gravity of the offending generally is somewhat reduced by the absence of any planning by you and the relatively brief duration of the assault. However, not only did you insist and encourage the co-accused but you inflicted the first blow and later bragged to the co-accused how successful that had been.
Personal circumstances
28As to your personal circumstances, you are a single man aged 40 with an extensive criminal history. You have previous convictions in New South Wales and South Australia between 2004 and 2012, mostly for driving offences. Your criminal history in Victoria began in 2008, although with unexplained reference to a conviction for recklessly causing injury in 1999.
29There is a considerable range of offending including serious driving offences, reckless conduct endangering serious injury and threatening to inflict serious injury. There are three previous convictions for recklessly causing injury.
30The most recent conviction was in April 2019 when you were placed on a Community Correction Order to follow a short term of imprisonment for what appears to be a consolidation of dishonesty offences. The CCO was varied a few months later but contravention proceedings commenced. The Corrections report provides details of your non-compliance which, together with the further offending, led to the contravention charge.
31The report discloses the difficulties you were experiencing at the time, with housing being a critical problem. Provision of methadone was difficult for you and although you had completed a mental health plan as required, you had been unable to attend for a psychiatric assessment. You were also awaiting a place in other programs to which you had been referred.
32The picture is one of a person with quite complex needs but motivated to change, according to the report. However, the recent offending was taken to be an indication that you were not ready to make the necessary behavioural changes.
33As a child, you and your mother were the victims of violence from your father and later your stepfather, which you still vividly recall, and whose death in a road accident when you were 15 brought relief to you. You went to many different schools necessitated by the family's frequent moves. You were bullied at school for being poor and you left school halfway through Year 9.
34You were one of four children born to your parents, all close in age, and later your mother had twins who are 10 years younger than you, their father being your stepfather. You are reportedly close to your mother and sisters but they are disappointed by your drug use and further offending.
35You were married young and had a son who is now 19. The marriage broke down in 2012 and you had then only recently been in contact with your son with a plan to meet him prevented by your arrest.
36After the end of your marriage, your use of amphetamines increased and you became dependent on morphine and fentanyl following a back injury at work. Until the breakdown of your marriage, you had had a good work record, but this triggered depression from which you appear not to have recovered and you have not worked since.
37An extreme bullying incident occurred when at the age of 16, you were set on fire by other workers in the logging company where you worked after leaving school and you suffered severe burns. You have since suffered from
post-traumatic stress disorder. Other health issues include a back injury sustained in a car accident and at work, and there were numerous head injuries and a history of seizures.Psychological reports – cognitive impairment and risk
38In November 2020, you were seen by Ms Carla Lechner who diagnosed major depressive disorder and stimulant use disorder with the latter in early remission while in custody. You told her that you were drug-affected at the time of the offending against the background of your other problems and that you felt very bad about what happened. Your history to Ms Lechner included two suicide attempts and current medication of antidepressants.
39Ms Lechner described your early exposure to domestic violence as complex developmental trauma resulting in chronically low self-esteem, interpersonal mistrust and heightened levels of anxiety and emotional dysregulation. This was aggravated by your experiences of being bullied. Ms Lechner considered that your ability to engage in consequential and reflective thinking is undermined by depressed and negative thinking. She considers you are at high to moderate risk of future violent offending which would be reduced by abstinence from drugs and by mental health treatment.
Mitigating factors
Remorse
40I now turn to the mitigating factors in your favour. When interviewed by the police, you denied the offending at a time when you did not know the full extent of the victim's injuries. You told Ms Lechner that you acknowledge your role and accept responsibility for it although there was some minimisation apparent from the version of events that you told Ms Lechner. You expressed regret for your actions and empathy for the victim.
Plea of guilty
41You pleaded guilty early, the matter having resolved at committal stage and the plea was listed after your unsuccessful application for summary jurisdiction. You are entitled to a discount on your sentence for having avoided a trial, particularly at a time when a severe backlog has been created by the
COVID-19 pandemic. It is also important for having spared witnesses from having to give evidence. I accept your plea also as an indication of remorse and acceptance of responsibility.Delay
42During the plea hearing, it was submitted that Mr Hill had caused delay in the performance of the second surgical procedure because he had missed an appointment in November 2019 which was postponed until 3 February 2020. At that point, he was placed on a waiting list for the procedure which was delayed by the COVID-19 crisis until October 2020.
43Without knowing more about the missed appointment and in the absence as to the certainty of the procedure taking place in a more timely way if the appointment had not been missed, I place little or no weight on the possibility that Mr Hill might have caused or contributed to the delay and I would query its relevance. In any event, the delay of about 15 months, while not an inordinate delay, is a mitigating factor to be taken into account.
General and specific deterrence
44The principle of general deterrence is of great importance in a case where a serious injury is inflicted in such frightening circumstances as here. The need for specific deterrence is clear too. According to Ms Lechner, your rehabilitation is dependent on abstaining from drug abuse and gaining insight into your mental health problems in order to develop better stress and mood management strategies.
Verdins principle
45Ms Rolfe submitted on your behalf that the principle in the decision of Verdins[4] is enlivened by your symptoms and diagnoses as already outlined in these remarks. In addition, your history of about 10 incidents of loss of consciousness over the years, with symptoms following a bad fall in October 2019 just before the offending, prompted a query as to a possible acquired brain injury and you were referred to a clinical neuropsychologist, Ms Laura Scott.
[4] Verdins v R
46She assessed you in January this year and concluded that you have moderate to severe cognitive impairments affecting aspects of memory function, and mild weakness in information processing speed and verbal memory. Ms Scott stated that because of the relatively mild level of these impairments, it is difficult to determine whether you have an acquired brain injury and that your cognitive function is likely to improve with adequate treatment of your mental illness.
47She stated that your cognitive impairments may have contributed to your behaviour on the day of the offending in that your slowed processing ability could have contributed to your feeling overwhelmed and unable to properly process what was occurring, resulting in a compromised ability to make a sound decision as to an alternative way of avoiding injuring the victim.
48However, Ms Scott reached that view on the basis of accepting your somewhat skewed version of events. You told her that you struck Mr Hill with the walking stick in an attempt to stop Mr White from continuing to injure the victim, implying that White had hit the victim first, while the evidence is otherwise.
49I am not satisfied that there is a sufficient nexus between the offending and the conditions from which you suffer but the Verdins principle insofar as it relates to your experience of prison is a different matter.
50Ms Scott's opinion is that your current cognitive impairments could cause minor problems in custody and that you may be at greater risk of victimisation than other prisoners in the context of your elevated depression and history of attempted suicide when in police custody. Ms Scott considers that there is a real risk of the deterioration of your mental health during further incarceration.
51The burden of imprisonment has been increased by the well-known COVID-19 restrictions operating throughout your time on remand which is a matter I take into account as a mitigating factor.
Childhood deprivation - Bugmy
52Ms Rolfe submitted on your behalf that the deprivation in your childhood is so significant as to be a mitigating factor which reduces your moral culpability. This principle that the effects of social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences has emerged from the High Court decision of Bugmy[5] which was followed by the Court of Appeal in the case of Marrah[6].
[5] Bugmy v R [2013] HCA 37 at [44]
[6] Marrah v R [2014] VSCA 119 at [16]
53The circumstances of your early life do warrant reduction of your moral culpability somewhat from what must be considered a high level because of the gravity of the offending.
Parity
54Parity with the co-accused was raised by Ms Rolfe as relevant even though the co-accused was a minor and was sentenced in the Children's Court to 15 months' detention on three sets of charges including this matter. There is no utility in comparing that case with yours other than the sentence imposed being that of detention.
Sentence
55The sentencing submission put on your behalf was for a combined sentence of imprisonment and a Community Correction Order, based on the mitigating factors and in order to provide certainty of support upon release, to address the issue of drug abuse. The prosecution submission was that only a prison term with a non-parole period is appropriate.
56The contravention report dated 15 November 2019 refers to your failure to complete any of the five community-based dispositions, including one parole order on which you have been placed since 2008. The alleged contravention is by non-compliance and further offending represented by this offending. As I said earlier, you had difficulty with compliance for several reasons, chiefly housing, but I can infer from the contents of the report that I could have little confidence in your success on a future CCO.
57For a combination of reasons including your poor record with Corrections but primarily because of the serious nature of the offending, I have concluded that a further CCO would not be appropriate.
58Accordingly, I sentence you as follows.
For Charge 1, causing serious injury recklessly, three years' imprisonment.
For each of Charges 2 and 3, handling stolen goods, 12 months.
For the summary charge of committing an indictable offence while on bail, one month.
These sentences for Charges 2 and 3 and the summary offence are all to be served concurrently.
This results in a total effective sentence of 3 years
I order that you serve a minimum period of two years before being eligible for parole.
You have been in custody for 440 days of pre-sentence detention which I declare to be reckoned as already served and I shall note on the court record.
If you had pleaded not guilty to these offences, I would sentenced you to four years' imprisonment with a non-parole period of three years.
There is an application for a forfeiture order. Is there consent to that, Ms Rolfe?
59MS ROLFE: There is, Your Honour.
60HER HONOUR: Thank you. I make that order.
61Are there any other matters that I have neglected?
62COUNSEL: No, Your Honour.
63HER HONOUR: Thank you. All right. Now, I will leave the Bench but I will leave the link open so that you may have a word with Mr Tempo if you would like to.
64MS ROLFE: As Your Honour pleases.
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