Director of Public Prosecutions v TT
[2007] VSC 23
•27 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1529 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TT |
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JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 15 & 16 November 2006, 13 December 2006 & 15 February 2007 | |
DATE OF SENTENCE: | 27 February 2007 | |
CASE MAY BE CITED AS: | DPP v TT | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 23 | |
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Criminal Law – sentencing – intentionally causing serious injury – aggravated burglary – unprovoked attack on sleeping neighbour with knife – serious wounds inflicted on victim - young offender aged 15 years – whether term in excess of three years youth detention called for - excellent prospects of rehabilitation a powerful sentencing consideration – no full explanation for crime – offender not likely to reoffend.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S Cooper | Ms A Cannon, Solicitor for Public Prosecutions |
| For the accused | Mr G Steward | Clarebrough Pica |
HIS HONOUR:
TT you have pleaded guilty to the commission of two offences, both on 13 March 2006, one of intentionally causing serious injury and the other of aggravated burglary.
The maximum penalty for aggravated burglary is imprisonment for a term of 25 years. The maximum penalty for intentionally causing serious injury is imprisonment for a term of 20 years. The circumstance of aggravation was that you had with you a knife. Both of these are very grave crimes indeed.
You committed these crimes when you entered as a trespasser the home of your next door neighbour, then inflicted serious wounds upon her with the knife.
You committed these offences when you were aged just 15 years. You are still aged 15 years as you face sentence today.
Your birthday in 2006 was not what you wanted it to be. It fell on a public holiday and your family decided to defer the celebration until the day after. You were sung happy birthday but received no presents or cards, which made you angry and distressed.
Just to do something on your birthday, late in the evening you began drinking at your home without your parents’ knowledge or permission. You told the police you had about 5 cans of beer. You probably had more. However much it was, it was a lot for a boy of your age. You unsuccessfully tried to get some friends to go out with you, which only made you feel worse.
It was in these circumstances that, early in the hours of the next morning, you took the knife from the block in the kitchen, went next door, entered your neighbour’s house, found her asleep in her bed and stabbed her, not once, but repeatedly, thereby inflicting terrible wounds. You did so despite her screaming and her attempts to defend herself with her own hands.
You then returned home, leaving your neighbour in a wounded state. At about 1.30-2.00am, you showered and went to bed. When the police come to your home later that morning you gave a false account of your movements and attempted to cover up your criminal acts. You did this out of fear. Soon afterwards, you confessed, and gave the police as full and accurate account as you could.
The day before was a very ordinary one for your neighbour. When she went to church in the morning, sat down quietly alone to eat her dinner in the evening and watched a video before going off to bed at about 11.00pm, she had no idea she would be wakened by a youth from next door stabbing her with a kitchen knife. The experience was truly terrifying and changed her life forever, physically and emotionally.
Despite the extent of her injuries, the shock she was in and the difficulty she experienced moving in the dark of the night, your neighbour managed to ring her pastor. The police and an ambulance came soon afterwards. When the ambulance officers examined her at 1.26am, she was found to have lost about 1.5 litres of blood. She was taken to the Royal Melbourne Hospital, where the long and still continuing process of getting medical attention began.
With a crime like this, I would expect to find some kind of motive, some kind of mental disturbance on the part of the wrongdoer or something in the circumstances that would help to explain why the crime was committed. In this case the reasons for your criminal actions are not fully clear. You have not been able to offer a complete explanation. You did not have a poor relationship with your neighbour. You felt no sense of grievance towards her. You have not been found to have a mental illness. You took nothing from her house. You have no history of violence. You did not appear to be alcohol affected only a few hours after the incident, despite the beer you consumed. It would be better if we knew more about why you committed these crimes, but we do have to take into account the limited capacity of 15 year old boys to have insight into and give explanations about their own actions. In this regard some assistance is provided by the pre-sentence report from the Department of Human Services. It suggests a number of personal factors which had been building up over time came together when you committed the offences.
I turn now to your personal background.
TT, you come from a good family with loving parents and siblings who have supported you despite the crimes you have committed. Up to now, you have been regarded as well-liked, polite, quiet and non-violent. You don’t smoke cigarettes or marijuana, use drugs or consume alcohol to excess or frequently. You are a first offender.
At the hearing of your plea on sentence, evidence was given on your behalf by these three witnesses:
· Dr Theresa Flower, a consultant child and adolescent forensic psychiatrist who supplied a report dated 1 November 2006
· The principal of your former primary school, who also supplied two references dated June 2006
· Your father, who spoke on behalf of himself and your mother and your entire extended family
Dr Flower gave detailed evidence, both in her report and in her oral evidence. This is a summary:
· There were no medical or psychiatric reasons that would account for your offending
· You should avoid alcohol as this may have played a role in what you did
· You are not the kind of person who normally finds themselves in a YTC and a long custodial sentence would harm your rehabilitation
· While the lack of an explanation for your actions is a real concern, your good character to date, supportive family and other factors suggest you have good prospects of rehabilitation
· You will need psychiatric support on your release
This is summary of your former principal’s evidence:
· He had known you since 2002 when you were in grade five at school – he remembers you coming up to welcome him on his arrival as the principal of the school
· He thinks you have great potential as a person and great potential for rehabilitation back into society
· You were just a typical young schoolboy and a caring and gentle person – for example, you maintained a long-term relationship with your prep-buddy and took a lot of initiative in the elderly persons visitation program
Your father told me he and your mother visit you very regularly, as do your brother and sister. You don’t have a nasty bone in your body and are a caring and loving young boy. You are a talented sportsperson. Your parents have re-arranged the home alarm system in case your occasional sleep-walking causes problems. They maintain their love for you despite what you did, and they want you home. Your father pointed out the large number of your extended family who attended court during the hearing of your plea on sentence.
I was also given a number of very positive references from neighbours and other members of your local community, which I will take into account.
Your neighbour’s victim impact statement shows your attack left her with 34 knife wounds. She describes wounds up to several centimetres in length to her forehead, neck, hands and chest. She has been left physically, and no doubt emotionally, scarred for life.
Your neighbour’s rehabilitation has been long, painful and difficult. She experiences continuing significant physical symptoms – for example, one third of her upper right hand has altered function, and the roof of her mouth, the teeth of her upper jaw and her upper lip and nose all have altered sensation and function. She feels self-conscious in various ways of which I have taken note but which it is unnecessary for me to describe.
It seems extraordinary to me, but your neighbour was asked whether she inflicted these wounds upon herself, as if the wounds themselves were not suffering enough. This is really quite a preposterous suggestion. She was the completely innocent victim of an unprovoked attack.
Your neighbour’s statement is a remarkably balanced document. She seems at least as concerned – if not more concerned – about the impact of the crime on her children as on herself. TT, despite the gracious tone in which the statement has been written, it is very clear your neighbour has suffered terribly as a result of what you did to her.
You have been in custody since your arrest, a period of 351 days excluding today.
I mentioned the pre-sentence report, which I requested pursuant to s 52(1A) of the Children and Young Persons Act 1989. This is a summary of what it says:
· You have limited verbal skills and can’t process or retain information very readily, which often makes you seem slow and absent minded
· You have great difficulty expressing your emotions and go to excessive lengths to win approval
· You have been experiencing frustration and stress over a period to time which became too much for you on the night concerned
· You regret the harm you caused to your neighbour and your family, and were worried about returning home on release, for this might affect her, as she still lived next door (as it happens your neighbour has moved out of the house as her lease has expired)
· You are very keen to change your life and rehabilitate
· With an individualised plan, you are very likely to respond positively to the help that will be offered to you
The prosecution submitted I should impose a sentence of imprisonment greater than the period of three years maximum for which you can be sentenced to detention in a YTC. This submission was based on the gravity of the crimes you committed and the need for a sentence that reflected denunciation and general and specific deterrence which, it was submitted, had to be given significant weight despite your youth. It was pointed out the Parole Board had a discretion to decide your sentence would be served in a YTC, even if it was for longer than three years. It was also submitted, understandably, that the lack of an explanation for the crime meant that, despite your youth, protection of the community should be a significant sentencing consideration.
Your counsel laid stress on your youth and good character to date, your family and community support and your excellent prospects for rehabilitation. He accepted an immediate term of imprisonment had to be imposed, but submitted it should be served in a YTC, and not be greater than the maximum three year term. He submitted the pre-sentence report provided a significant insight into the circumstances of the offending and should allay any concerns I have about the likelihood of you reoffending.
Counsel for the DPP and you have submitted the maximum period to which I may sentence you to detention in a YTC is three years. This is correct but I should explain how this figure is arrived at. The legislation imposes a limit of two years detention for any individual offence and a maximum aggregate period of three years detention for multiple offences. Unless the court orders cumulation, for which it must give reasons, sentences for multiple offences must be served concurrently. [1]
[1]See s. 189(2) and (3) of the Children and Young Persons Act 1989.
Your crimes were very grave because you entered another person’s home as a trespasser with a knife as a weapon and repeatedly stabbed the defenceless female occupant, who was living alone. After inflicting terrible wounds upon her, you fled, leaving her to help herself as best she could, if at all. I cannot determine whether you made forced entry, but it was certainly unauthorised. These crimes are so grave that they do call for an immediate term of imprisonment, despite Dr Flower’s eloquent testimony to the contrary.
The rehabilitation of a young first offender is a powerful sentencing consideration directly applicable in this case. In some cases it must give way to more compelling sentencing considerations. But despite the gravity of the crimes, the circumstances in which they were committed and their impact on your neighbour, which I do not overlook as sentencing considerations, I think the following matters call for a merciful sentence:
· you were a young first offender aged only just 15 years when you committed the offences
· you have excellent family and community support, which reflects your good character to date
· you have demonstrated a due understanding of the criminal nature and gravity of your actions
· you suffer from deep and genuine remorse for what you did, and have done so from an early stage, when you confessed, up to now, when you pleaded guilty
· you have excellent prospects of rehabilitation
· you are most unlikely to reoffend
I will make further remarks only on the issues of remorse and rehabilitation.
I have already noted you initially tried to lie your way out of your predicament. This is not unusual for a young person of your age. Very quickly thereafter, you owned up and have been fully co-operative since. You wrote a letter to your father which genuinely expressed your remorse for hurting your neighbour. You expressed that remorse to Dr Flower and to your YTC case officers. Your pleas of not guilty at the committal, and the conduct of your defence at that hearing, reflected the charges then brought against you, not a lack of remorse. And you have now pleaded guilty to appropriate charges.
I am persuaded by the evidence, especially the pre-sentence report, that, given the support of your family, you have excellent prospects of rehabilitation, if the period of imprisonment is not too long, and if you accept, as I think you will, the counselling and support services that will be offered to you. The pre-sentence report makes a strong point when it says you and your family can’t, on release, just pick up your lives where you left off. You and your family will need to work closely together, with professional help if that is necessary. You clearly want to rehabilitate and grow up to lead a positive life. In doing so you have many things to consider but I suggest one of the most important is who you personally want to grow up to be.
It is now time for me to announce my sentence.
TT, in all of the circumstances, for the crime of intentionally causing serious injury to your neighbour you will be sentenced to be detained in a youth training centre for two years. For the crime of aggravated burglary you will be also be sentenced to be detained in a youth training centre for two years. I direct that one year of the period of detention imposed for the crime of aggravated burglary be served cumulatively upon the period of detention imposed for the crime of intentionally causing serious injury. My reason for doing so is that aggravated burglary is a grave crime calling for a period of detention to be actually served in addition to the period to be served for the other crime. The aggregate period of detention is therefore three years. Pursuant to s. 18 of the Sentencing Act I declare the time you have spent in custody in relation to these proceedings is 351 days (exclusive of today) and I direct it be reckoned as a period of imprisonment already served under the sentence imposed.
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