Director of Public Prosecutions v Tennant
[2022] VCC 78
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00767
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN TENNANT |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2022 | |
DATE OF SENTENCE: | 11 February 2022 | |
CASE MAY BE CITED AS: | DPP v Tennant | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 78 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly cause serious injury (1 count) – ‘dead time’ – Karpinski time – dead time served during COVID-19 restrictions – plea during currency of the COVID-19 pandemic – disproportionate response – non-protracted serious injury – lower range of serious injury – reasonable prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Yucel [2019] VSCA 53; Karpinski v The Queen [2011] VSCA 94; Worboyes v R [2021] VSCA 169
Sentence: Combined sentence – term of imprisonment of 12 months – 12-month Community Correction Order with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Philip Teo | Office of Public Prosecutions |
| For the Accused | James Anderson | Camerons Lawyers |
HER HONOUR:
1Steven Tennant, you have pleaded guilty to one charge of recklessly causing serious injury, which carries a maximum sentence of 15 years’ imprisonment. The offending occurred on 7 August 2019, when you were 31 years old. The circumstances of the offending were set out in the Prosecution Opening and I sentence you on the basis of the facts contained in that document.[1] I summarise those facts briefly.
2At about 4 am, while you were at home in Seymour with Jamie Petronio and Paul Wright, the complainant, Luke Morritt, who was unknown to you, was drunk and yelling out in your street. He struck a gate with a log, and the noise it made prompted you and your associates to go outside. When Mr Morritt saw you, he made demands for ‘gear’, and at some stage in the interaction with you, threatened to bash you and your associates. You were concerned about your safety and that of your associates, and were also angered and disgusted by Mr Morritt’s behaviour. You punched him with a closed fist at least six times,[2] but he remained standing. At some point, Mr Wright handed you an ornamental knife he had hanging around his neck. You then stabbed Mr Morritt 5 times. That conduct was voluntary and committed with reckless disregard as to whether or not it would cause a serious injury, and was disproportionate to any threat to you and your associates’ safety arising from Mr Morritt’s behaviour.
3You and the others then left the scene. Mr Morritt noticed he was bleeding, called for help, and was assisted by a nearby resident. Police attended and applied pressure to his wounds, and then paramedics attended. He was having difficulty breathing, and, anticipating that he had suffered a collapsed or partially collapsed right lung, the paramedic inserted a pneumocath into his chest wall. He was airlifted to the Alfred Hospital, where he was found to have stab wounds to the right chest, right abdomen and left back. An intercostal catheter was inserted into his right chest to drain air, and he was given pain medication. A CT scan revealed lacerations to the liver, spleen and left kidney (which did not require specific surgical repair), a laceration to the right hemi-diaphragm, a small right sided pneumothorax and a small amount of blood and/or fluid in the space between his abdominal wall and internal organs. He underwent a laparoscopy in which the diaphragm was repaired with sutures.
[1] Exhibit 1.
[2] These blows are not the subject of any charges in this matter.
Expert forensic opinion from Dr Angela Sungaila was to the effect that he sustained sharp force trauma sufficient to cause a pneumothorax requiring urgent treatment as well as liver and kidney lacerations which could have caused catastrophic bleeding.[3] Without the treatment provided by the attending paramedics, there was a reasonable chance that his injuries would have been life-threatening. For this reason, it is common ground that his injuries, taken together, constitute a serious injury. However, the parties differ as to where this serious injury sits objectively in the range of possible serious injuries.
You participated in a record of interview on 17 September 2020. You said that you tried to talk to Mr Morritt but he would not listen. He picked up a wooden stake, threatened to bash you and your associates, and banged on his chest, saying “I’m Mad Borrie”. Your associate, Paul Wright, gave you the ornamental knife he had around his neck. Mr Morritt threw away the wood. You were frustrated and angry, then hit him a number of times, but he did not fall or fight back. He kept yelling. He was moving towards your associate Jamie Petronio but did not say anything to him. You were triggered by anger at Mr Morritt’s behaviour and you hit him with the intention of scaring him and making him go away. You stabbed Mr Morritt in the lower back because you wanted to neutralise him, and you agreed that you should not have stabbed him but should have gone into the house, locked it, and called police.
[3] Deposition 111.1-111.6.
A Victim Impact Statement by Mr Morritt, who is 36 years old, was tendered on the plea.[4] He said that he spent 4 to 5 days in hospital but took a lot longer to recover. His longstanding mental health and anxiety problems were severely affected by this incident, leaving him drug-addicted and homeless, suffering nightmares. He now never leaves home alone, does not use public transport, and only goes out to attend appointments.
[4] Exhibit 2.
7You were charged on 17 September 2020 and committed on 15 April 2021. I note that between the offending and the committal you served 175 days of ‘dead time’ on an unrelated matter that resulted in the imposition of a fine. The current matter resolved at a case conference on 12 October 2021. There is no PSD to credit to this matter. For this reason, you do not benefit from the accrual of EMDs, in spite of having served this time during the period of COVID-19 restrictions.
8You have prior convictions for recklessly cause injury (in 2017) and for recklessly cause serious injury (in 2014). On each occasion, you were sentenced to community correction orders. You have never been sentenced to a term of imprisonment.
9The prosecution made submissions to the following effect. Due to the need for medical intervention to avoid life-threatening complications from the injuries you inflicted, the serious injury suffered by Mr Morritt is not at the lower end of the range of gravity. Although your plea is indicative of remorse, you did not express genuine remorse for your actions in your ROI. The factual matrix of this case does not support a conclusion that your actions were a “notch above” self-defence, as was the case in Yucel,[5] particularly as Mr Morritt had thrown the wooden stake away prior to being punched, had not thrown any punches, and said nothing to indicate a threat to Mr Petronio. Rather, your actions in acting in anger are similar to your offending in 2014. This is a relatively serious example of the offence of recklessly causing serious injury and warrants the imposition of a term of imprisonment comprising a head sentence and a non-parole period. It was conceded that it is open to the Court to take into account the dead time you have spent in custody.
[5] DPP v Yucel [2019] VSCA 53.
10Your counsel tendered written plea submissions,[6] a psychiatric report of Dr Jacqueline Rakov, dated 17 January 2022,[7] a letter from your treating psychologist, Mr Peter Redding, dated 20 January 2022,[8] as well as the criminal history of Mr Morritt.
[6] Exhibit A.
[7] Exhibit B.
[8] Exhibit D.
11Dr Rakov’s report canvasses your personal circumstances. You had an alcoholic mother who suffered from schizophrenia and a father who suffered from bipolar disorder. They separated when you were 2 years old. You had an impoverished and dysfunctional upbringing which involved your becoming reliant on illicit substances, speed and cannabis, from a young age. You lived with your mother until the age of 16 when she formed a relationship with a woman who did not want children around. You went to live with your father, but did not communicate with him, and returned to live with your mother. By this time, you had developed a dependence on cannabis. You dropped out of school in Year 11, started injecting speed and hanging around unsavoury peers you looked up to. At the age of 22 you completed a Certificate IV in community services. You had a relationship with a woman who suicided. You fathered a child with another woman. He starts secondary school this year and lives with his mother. You speak to him regularly and also see him. You have not worked much in the past 7 years. You have never previously been sentenced to a term of imprisonment. You gave Dr Rakov a history of sustained periods of depression, as well as having been diagnosed with bipolar affective disorder some years ago, but have never required hospitalisation for your symptoms. You are currently taking mood stabilising medication, quietapine. You told Dr Rakov that you are finding the current counselling with Mr Redding effective. You were taking methadone whilst in custody. You demonstrated insight into your choices and behaviours. You are not working at present due to back pain and are awaiting surgery.
12Dr Rakov considered that you are most likely suffering from a major depressive disorder, which is currently relieved by mood stabilising drugs. She considered that you had not yet developed methods of coping with distress other than through substance use and aggression. She recommended ongoing psychological treatment, which would be less available in custody. She noted that you had found it difficult to comply with community-based orders while involved with anti-social peer groups and with substance use. She noted that you appeared to understand the subjective benefits of not taking illegal drugs. She felt that you needed to be occupied once your back pain was under control. She suggested that a THC-free cannabinoid pain relief program might assist you.
13
From the Bar table, your counsel indicated that since your release in
April 2020, you have been living with your father, have ceased using methadone and are not taking any illicit drugs. However, you have a reputation in Seymour, where you are experiencing harassment online and at your home. You and your father are planning to move together to Echuca, where your son lives. You are enrolled in a writing course which commences this month.
14Your counsel made submissions to the following effect.
15Your actions in stabbing Mr Morritt should be seen as a disproportionate response to an ongoing threat which was taken in the heat of the moment out of a desire to get out of the situation in which Mr Morritt, having threatened to bash you and your associates, did not back away in spite of being punched repeatedly. Your judgment in acting as you did may have been impaired by your use of methamphetamine earlier that evening. Your use of the knife was opportunistic and used as a last resort after punching Mr Morritt failed to make him desist from his aggressive behaviour. The defensive flavour of your actions attracts the principles in Yucel, moderates your moral culpability as well as the objective gravity of the offending and the need for specific deterrence; and also is relevant to your remorse and the utilitarian benefit of your plea.
16Although the injury to Mr Morritt endangered his life, it falls at the lower end of the range for what constitutes a “serious injury” because relatively simple medical intervention was needed to treat his pneumothorax and the lacerations to his diaphragm and because the injuries were not protracted.
17During your ROI, you admitted stabbing Mr Morritt and expressed remorse and concern for his welfare. The matter only proceeded to a contested committal to enable resolution of the matter on its present terms. For this reason, your plea should be treated as one entered at a reasonably early opportunity. Your plea during the currency of the COVID-19 pandemic should attract an additional amelioration of sentence.
18There was a significant delay in charging you. Full credit ought to be given to you for the 175 days’ dead time because it was served entirely during COVID-19 restrictions, between the date of the offence and the date of committal, and because, had it been formally declared as PSD, would have been augmented by EMDs.[9]
[9] Karpinski v The Queen [2011] VSCA 94.
19Although you breached a CCO imposed in 2013, you have successfully completed all subsequent community-based dispositions. You have not re-offended since being granted bail on 15 April 2021. You are willing to do unpaid community work. Your prospects of rehabilitation should be seen as good given that you are now living with your father, have remained drug-free, and are receiving psychological therapy. All of these positive developments would be reversed by the imposition of a term of imprisonment. In all the circumstances, the imposition of a sentence of imprisonment (which takes full account of the dead time served on an unrelated matter) combined with a CCO is the appropriate disposition.
20On 20 January 2022 you were assessed by Corrections Victoria as suitable to undertake a CCO. You said you have a prolapsed disc which limits your movements. The conditions recommended were those of supervision, community work, drug and mental health treatment and rehabilitation, and participation in programs to reduce offending. The report noted that you had previously completed such orders, and were attending counselling. You told the author of the report that you had stopped using ice since being released from custody, but are still using cannabis to assist with sleep.
21On 24 January 2022, you were assessed by MHARS at this Court. The report indicated that you had mental health treatment in the community for periods in 2011, 2012 and late 2014.The report noted the contents of Dr Rakov’s report, particularly the diagnosis of Major Depressive Disorder and Substance Use Disorder, as well as her recommendation that you continue psychological counselling. The report noted that you are currently taking diazepam and quetiapine, which you found helpful, and are also finding the ongoing counselling with Mr Redding to be helpful. You are using cannabis to help with sleep and your back pain. You presented with a stable mental state and displayed insight into your mental health issues and the importance of creating a structured routine for yourself. The report recommended that ongoing mental health treatment be a condition of any CCO imposed on you by this court.
Sentencing considerations
22On the material before me, it is clear that your offending represents a disproportionate response to the threat posed to you and your associates by Mr Morritt. However, I accept that your offending was not premeditated and occurred shortly after he had approached you, armed with a piece of wood and making demands of you. However, after you punched him a number of times, and he remained standing and failed to leave the scene, he dropped the piece of wood and made no further threats or demands. You then stabbed him 5 times, when instead, as you admitted in your ROI, you should have left the scene with your associates, and called police. I accept that your moral culpability and the objective gravity of your offending may be slightly moderated by the context in which you were first approached by a belligerent Mr Morritt.
23In addition, I consider that although you caused serious injury to Mr Morritt, that injury lies towards the lower end of the range of possible serious injuries, because it was resolved with standard urgent medical intervention and did not cause protracted physical sequelae.
24I accept the matters put in mitigation by your counsel. I consider that you demonstrated some remorse in your ROI when made aware of the injuries suffered by Mr Morritt. You are entitled to the full benefit of your plea of guilty, as well as to an additional amelioration of sentence because the plea was made during the currency of the COVID-19 pandemic.[10] I note that there was considerable delay of 407 days before you were charged with this offence, and that after the commission of this offence, but before your committal, you served 175 days on remand in relation to a separate matter that resolved on 14 April 2021 with a disposition of a financial penalty. Given the disposition, that period of time, with the benefit of hindsight, should not have been served. That time was served during COVID-19 restrictions.
[10] Worboyes v R [2021] VSCA 169.
25Although you do not have formal PSD to credit to the current matter and cannot benefit from the accrual of EMDs that you would have received because of the additional burden of imprisonment during that remand period, I consider it appropriate in reaching a just and appropriate sentence to take full account of the 175 days’ dead time you served on remand in relation to other matters, particularly as that time was served during the COVID-19 pandemic and restrictions. I do so noting that this is the first time you will be sentenced to a term of imprisonment and that, since being released, you have demonstrated through no further reoffending, and through your abstinence from drug-taking (apart from cannabis to assist you with sleep) and your engagement with psychological counselling, that your prospects of rehabilitation are at least reasonable. You have stable accommodation and are enrolled in further education.26Nevertheless, given your prior convictions for similar offending, I consider that, after taking fully into account the ‘dead time’ spent in custody, your offending warrants the imposition of an immediate term of imprisonment, together with a Community Corrections Order.
27Mr Tennant, would you please stand.
28In all the circumstances, you are convicted and sentenced to 12 months’ imprisonment and a 12-month CCO with conditions of drug and mental health treatment, participation in offence specific programs as directed, and 100 hours of unpaid community work. I direct that all the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. For the avoidance of doubt, I repeat that in reaching the appropriate sentence of imprisonment, I have given full weight to the 175 days ‘dead time’ served on unrelated matters which ultimately were finalised by the imposition of a fine.
29Regarding your CCO, you will need to report to Seymour Community Correctional Services within 2 working days once the order commences.
30The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 12 months from its commencement - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?
31Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment.
32Do you consent to the making of a CCO?
33The Prosecution has applied for a forfeiture order for a gold chain and a disposal order for Mr Morritt’s clothing. Your counsel did not object to the making of these orders, therefore I will make them.
S 6AAA
34I declare pursuant to s 6AAA of the Sentencing Act that, if you had not pleaded guilty to the charges and if you had been found guilty of the charges by a jury, I would have convicted you and imposed an 18 months’ sentence of imprisonment with a non-parole period of 12 months.
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