Director of Public Prosecutions v Todd

[2018] VCC 1316

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01236

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSIE TODD

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2018
DATE OF SENTENCE:	22 August 2018
CASE MAY BE CITED AS:	DPP v Todd
MEDIUM NEUTRAL CITATION:	[2018] VCC 1316

REASONS FOR SENTENCE
---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H Bate	OPP Victoria
For the Accused	Ms J Swiney	Matthew White & Associates

HER HONOUR:

1Jessie Todd, you have pleaded guilty to one charge of intentionally causing serious injury to Jack Hughes on 2 March 2018.  The maximum penalty for that offence is 20 years’ imprisonment.

Circumstances of Offending

2At the time of the offending you were 18 years old and you were living with your father and paternal grandmother in Burwood.  Jack Hughes was 19 years old and had been a friend of yours.  In the weeks leading up to the offending, Jack had visited your home and had stolen .2 grams of methylamphetamine from you.  It was valued at $80.  You also believed he had stolen a ring belonging to your mother, who had passed away in 2007.

3On Friday 2 March 2018, at approximately 3.30 pm, you saw Jack at the Box Hill Central Shopping Centre.  He was there with a friend.  You yelled out to him, but he ignored you.  You went up to Jack and his friend who were seated near a café in the mall. You pulled a 15 to 20cm knife from your pants and showed it to him, saying “Oi Jack, you better give me my money”.

4You sat across from Jack at the café and sent him text messages saying that if “U don’t pay up, I’m gonna cut you up bit by bit” and that “and everyone here’s got my back”.  A short time later, you were joined by your co-accused, 27-year-old Joshua Anastasiadis, who you had phoned earlier.  Jack had also been joined by another friend.

5Jack’s friends suggested that they leave.  They got up and walked to the bottle shop on Whitehorse Road.  Despite this attempt to defuse the situation, you followed the group, continuing to argue about the money you were owed.

6Jack agreed to get your money and went to queue at the Commonwealth Bank ATM in the mall.  You followed him there.  You moved into a small alcove near the ATM where you again withdrew the knife from your pants. You were with another co-accused, a 17-year-old male, who was aware you had the knife.  When Jack said he was not going to wait in the queue any longer, you said “I’m getting the money or you will get killed”.  One of his friends asked if you could wait until tomorrow, however, you then struck at Jack violently.

7You lunged at him, repeatedly stabbing Jack in the chest and abdomen with the knife.  Despite attempts to resist you, Jack was overcome when the 17-year-old co-accused punched him to the side of the face, causing him to be knocked off balance.  You continued to lunge at him with the knife, stabbing him to the hip and then to the left thigh.  The knife wounds to the leg resulted in immediate heavy bleeding from his thigh.  This is clearly seen in the CCTV footage of the incident.  You then fled, with the co-accused following you.

8At the time of the knife attack, Box Hill mall was extremely busy with pedestrians walking through the area, including shoppers, train and bus commuters and given the time of day, school-aged children and parents.

9Jack walked away after the assault, but due to heavy bleeding from his leg, collapsed at the entrance to Box Hill Central and began to lose consciousness.  An ambulance attended and treated him for multiple stab wounds.  Paramedics estimated he had lost over two litres of blood.  They assessed he would not survive an ambulance trip to the city and transported him to Box Hill Hospital, where he underwent emergency surgery.  He was later transferred to the Royal Melbourne Hospital in an induced coma and was hospitalised for eight days.

10Jack suffered horrific injuries requiring metal staples to close the many incisions to his chest, abdomen and left leg.  He suffered multiple lacerations to his face, swelling and bruising to his left eye and eyelid, bruising to his right arm and wrist, and multiple abrasions to his right hand and fingers.  The injuries to his left leg were particularly serious.  He required treatment for an 11-centimetre vertical incision to his left leg, closed with nineteen metal staples.  A further 2.5cm incision to his left thigh, closed with three metal staples and another 3.5cm incision to the left leg, closed with six metal staples.   

11Photographs tendered by the prosecution graphically depict the multiple incisions, lacerations and abrasions suffered by Jack requiring surgical treatment.

12Following the incident, you and the two co-accused ran across Whitehorse Road to the tram depot area where you met a group of approximately 10-15 associates.  You told the group you had stabbed someone.  You were panicking about what you had done and said you wanted to dispose of the knife.  Joshua Anastasiadis took the knife from you and hid it in nearby bushes before leaving the area.  You ran along Station Street and returned home.

13Police were unable to locate you until 8 May 2018, when you were arrested for an unrelated matter.  You were intoxicated at the time of that arrest.  You were charged on 9 May 2018, but due to your intoxicated state, you were not interviewed in relation to the incident.

Impact on Victim

14Jack Hughes has made two victim impact statements.  The violent knife attack has had a devastating impact on him.  The offending has impacted on every aspect of his life; his physical, emotional and financial wellbeing.  He now feels anxious about going out on his own and does everything he can to avoid the Box Hill area.  He is aware his family worry about his safety.  He says the events have exacerbated the anxiety and depression that he has battled with for years.  Memories of the incident flood back to him, increasing his anxiety and preventing him from sleeping.

15The physical injuries were extremely painful.  Jack now says he has ongoing nerve damage to his left leg; suffering numbness and cramping which makes his leg unstable.  He says the injury prevents him from returning to his labouring work.  He feels he does not have the stamina for work anymore.  He says he has been diagnosed with a post-traumatic stress disorder requiring treatment and medication.  He feels embarrassed about his appearance because of the scarring to his body.  For a young man, the permanent scarring to his body is a distressing outcome of the attack.

Gravity of the offending

16Mr Todd, you have pleaded guilty to a very serious charge, reflected in the maximum penalty of 20 years’ imprisonment set by Parliament.

17That is not the only measure of the seriousness of the offending.  Although there is no evidence that you planned for the offence to take place in the mall, once you saw Jack, your actions demonstrate a degree of planning leading to the assault.  You sent him threatening texts and showed him the knife before the attack, threatening to kill him if he did not pay you.  You arranged for others to join you, including an older male.  You did not desist despite the interventions and suggestions of Jack’s friends.  When Jack walked away from the ATM without your money, it triggered an immediate and sustained knife attack to his body.  You were motivated by your anger at Jack for stealing from you.  You were drug affected at the time.  Indeed, you have reported you have no memory of the incident.

18I have viewed the CCTV footage of the incident.  It was a vicious and shocking knife attack committed by you in broad daylight and in full view of the many members of the public, including children, present in the mall that Friday afternoon.  You fled the scene leaving the victim, then bleeding heavily and suffering significant blood loss, without help.  The injuries he suffered were life threatening.  The impact of your assault on Jack, who is also a young man, has been significant.  The sentence that I impose must deter others who may be inclined to offend in a similar manner, armed with knives.

19It is also relevant that you have a prior criminal history, with appearances in the Children’s Court dating back to 2013.  You have been sentenced in 2014, 2015 and in April 2017 to three separate probation orders for offending that included attempted armed robbery, possess a controlled weapon without excuse and assault with a weapon.  These are relevant prior convictions and I have taken them into account.  This offending represents a significant escalation in offending behaviour by you.  The sentence I impose must also deter you from future violent offending.

20In cases such as these, the sentencing considerations of deterrence, both general and specific, denunciation, just punishment and protection of the community are all highly relevant sentencing considerations.

Personal circumstances

21I turn now to your personal circumstances.

22You were born on 22 July 1999 and are now 19 years old.  You are the younger of two sons born to Tracey and Paul Todd.  Your early childhood was marked by neglect, exposure to family violence and parental drug abuse.  Your parents separated when you were very young and had shared care of you until tragically, your mother passed away from an overdose in 2007.  You have a half-brother who lives in out of home care in Ballarat.

23When you were twelve years old, you were placed in the care of your maternal grandmother after child protection intervened.  However, this arrangement did not last, and you were placed in DHHS residential care, being moved to three different residential units, in 2012.  Youth Justice report that you were severely assaulted in residential care but refused to report the matter to police.  You returned to live with your father at your paternal grandparent’s home in Burwood after one year.  You had a close relationship with your paternal grandfather. Sadly, he passed away in 2013.

24Your relationship with your father is reported to be a turbulent and difficult one.  Child protection involvement arose due to allegations that you were assaulted by your father, at one point sustaining facial injuries.

25Your early education was significantly disrupted and for many years you have completed disengaged from any education program.  You completed primary school at Wattle Park Primary and then Robert McGovern Primary School.  You were only eight years old when your mother passed away.  You told
Carla Lechner, psychologist, that you were deeply affected by your mother’s death, but that you have “bottled it up”.  You sporadically attended at Frank Dando Sports Academy and then Ashwood Secondary College in Year 7 before ceasing school that year.

26Between 2013 and 2015, you went to Oakwood school which caters for children who are struggling with mainstream schooling.  However, by early 2015, at the age of 14, you had completely disengaged from school and never returned.  You told Ms Lechner that you spend most of your time with “mates” although you did work, on a casual basis, as a furniture removalist for one to two months before being remanded.

27Ms Lechner assessed you for the purposes of this plea in July 2018.  She reports that you began smoking cannabis at the age of 12, and methamphetamine by the age of 15, smoking up to a gram every few days.  You told Ms Lechner you had limited recollection of the incident due to being drug affected at the time.  You told Ms Lechner you intend to remain abstinent from ice use in the future.  Clearly, your prospects of rehabilitation will depend, to a significant degree, on addressing your addiction to drugs.

28I have also had regard to the assessment of Ms Lechner that you present as “cognitively, socially and emotionally immature with a limited capacity to reflect on the impact that your behaviour has on yourself and others".  In her report dated 11 July 2018, Ms Lechner states:

“He appears to be quite disconnected from his emotional world, denying or minimising the extent of emotional distress that he may experience.  He is not evidencing symptoms of underlying psychological or psychiatric disorder, such as anxiety or depression at a clinical level.  Regrettably, he did not complete formal cognitive testing, but on the sub-test results obtained, it is likely that he has a mild intellectual disability or is of “borderline” ability.  His consequential thinking and abstract verbal reasoning skills were well below the average range”.

29From a rehabilitation perspective, Ms Lechner states that you will be most assisted by skills-based learning programs that address drug rehabilitation, mood management and anger management.  I agree.

30You also completed a neuro-psychological assessment with Ms Linda Williamson, Clinical Neuropsychologist at Arbias, on 11 April 2018.
Ms Williamson found that you had verbal and non-verbal intellectual abilities within the low average range.  She assessed you as having a borderline range of intellectual functioning, with a full-scale IQ of 71.

31Ms Williamson’s report dated 6 June 2018 states that your pattern of poor engagement in formal testing makes it difficult to determine your underlying level of cognitive ability.  She states that the diagnosis of any cognitive impairment, is further complicated by your use of cannabis, which can itself result in acute cognitive disturbances.  Ultimately, Ms Williamson recommends that you are referred to youth-specific mental health services, to provide behavioural support and to address your substance and alcohol use and identify meaningful vocational and recreational pursuits.

32In sentencing you, I have considered the disadvantage, hardship and disrupted education you experienced in your formative years.  Your family circumstances have been unsettled and difficult.  Sadly, the loss of your mother at a very young age was a time of unresolved grief and loss.  Your intellectual capacity has been assessed as being at the borderline range, impacting on your ability to regulate your behaviour and to reflect on the impact of your actions.  You have been assessed as cognitively and emotionally immature.  These are all matters that mitigate your sentence and moderate, to a degree, the need for a sentence that operates as a general deterrent.

33It is also important that you pleaded guilty to the offence at an early opportunity. By your plea, you have acknowledged your wrongdoing and expressed remorse.  Significantly, your plea also saved the victim from the trauma often associated with giving evidence in court.  It also saved the community the expense of a criminal trial.  In this case, I note the prosecution intended to call approximately 50 witnesses.  There was significant utility in your plea.  You are entitled to the benefit of your early plea in the sentence I impose.

34In determining sentence, I have also taken into account that this will be your first sentence of detention.

35As a young offender, there is a need to impose a sentence that reflects the seriousness of your offending, but also affords an opportunity to assist in your rehabilitation.  In cases involving young offenders, rehabilitation is a significant sentencing consideration for two reasons.  Firstly, the community benefits where young offenders are rehabilitated and able to lead productive lives into the future.  Secondly, the very immaturity of a young offender, provides an important opportunity for rehabilitation to be effective.

36You have been supported by an Intensive Support Worker at Jesuit Social Services since October 2015.  The report of that service dated 23 July 2018, states that your level of engagement improved in 2017, with you consistently attending or phoning your support worker on a weekly basis allowing the service to support you in areas including applying for a Disability Support Pension and in obtaining a cognitive assessment through Arbias.  Through the Jesuit Social Services Program, you have demonstrated an emerging ability to work with support services in the community.  You have also engaged in courses on remand including Coping with Ice and Coping with Change.  Again, this shows a commitment to address some of the issues underlying your offending.

37Presently, I assess that you have reasonably good prospects of rehabilitation, if you are supported in treatment and counselling for the issues identified in the psychological material that I have referred to.

38Section 32 of the Sentencing Act 1991 (Vic.), enables the court to make a Youth Justice Centre order, if it has received a pre-sentence report and believes that, as a young offender, your prospects of rehabilitation are reasonable, or that you are particularly impressionable or immature, and likely to be subjected to undesirable influences in an adult prison.  The prosecution accepts that a youth justice centre order is appropriate in your case.

39Youth Justice has assessed you as suitable for a Youth Justice Centre order.  In the detailed presentence report I read, dated 17 August 2018, Youth Justice state that you have shown insight into the impact of your offending on the victim and expressed remorse for the incident, stating “it was the stupidest, [most] irresponsible thing I could have done”.  The report states that while remanded, you have limited family support and present as vulnerable.  You reported to Youth Justice that you feel unsafe on remand.  Despite this, your behaviour on remand has been positive, engaging in programs where available.  Youth Justice assess that you would be at “further risk of contamination by older entrenched offenders” if you were to remain in the adult prison system.

40Notwithstanding the serious and violent nature of the offending, I am satisfied that your youth and immaturity, combined with your cognitive limitations, mean that you would be susceptible to undesirable influences in an adult prison, which could undermine your reasonable prospects of rehabilitation.  I am satisfied that your rehabilitation, and ultimately the protection of the community, will be better facilitated through the specialised youth focused services and programs offered through Youth Justice.  I am satisfied that a Youth Justice Centre order is appropriate to meet the relevant sentencing considerations.

41Jessie Todd, can you please stand.

42On the charge of intentionally causing serious injury, you are convicted and sentenced to three years’, six months’ detention in a Youth Justice Centre pursuant to s.32 of the Sentencing Act 1991 (Vic.).

43I order that 105 days of presentence detention be reckoned as served.

44Pursuant to s.6AAA of the Sentencing Act 1991 (Vic.), I indicate that but for your plea of guilty, the sentence I would otherwise have imposed on you, would have been a term of four years’ and three months’ imprisonment, with a non-parole period of two years, six months.

45Pursuant to s.464ZF(2) of the Crimes Act 1958 (Vic.), I order that you undergo
a forensic procedure to take a scraping from your mouth, being satisfied that such an order is justified having regard to the seriousness of the offending and noting it is not opposed.  I am satisfied that the making of the order is in the public interest.  I am required to advise you that a member of the police force may use reasonable force to obtain a blood sample if you do not comply with this order.

46Pursuant to s.33(1) of the Confiscation Act 1997 (Vic.), I make the forfeiture order sought by the prosecution, noting that the order is not opposed.  Have a seat.  Are there any issues requiring clarification?

47MS BATE:  Not from my perspective, Your Honour.

48MS SWINEY:  No, it's not an issue, Your Honour, but I just missed the non-parole period for the 6AAA.  I actually got it right in any event, thank you.

49HER HONOUR:  All right.  Can I thank counsel for their assistance and thank Youth Justice for their detailed report.  If Mr Todd could be removed, thank you. 

- - -