Director of Public Prosecutions v Van Der Lee

[2014] VCC 2296

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00333

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOVAN VAN DER LEE

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2014
DATE OF SENTENCE:	28 August 2014
CASE MAY BE CITED AS:	DPP v Van Der Lee
MEDIUM NEUTRAL CITATION:	[2014] VCC 2296

REASONS FOR SENTENCE
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Subject: Recklessly Causing Serious Injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 3 years non-parole 18 Months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Mr C. Baker

HER HONOUR: 

Circumstances of offending

1Jovan Van Der Lee, you have pleaded guilty to one charge of recklessly causing serious injury and the maximum penalty for that offence is 15 years.  The circumstances surrounding your offending are that on 26 October 2013 at approximately 11.30 after consuming a considerable amount of alcohol, Matthew Daglas and James Rogers were singing and calling out to each other as they walked along Little Malop Street in Geelong.  As they walked down the street they heard someone shouting out to them from behind.  That person shouting was you. 

2You approached them and berated them for woofing at you.  You were very angry and kept repeating yourself.  You swung punches at Matthew Daglas and you made contact twice.  You threatened to stab him with a kitchen knife you had on you unless he confessed to barking or woofing at you. 

3When Mr Daglas agreed he had done this you became friendly and you introduced yourself before you walked away.  It was only as they continued walking along Little Malop Street toward Fenwick Street that Mr Rogers noticed blood on the neck and T‑shirt of Mr Daglas.  It became apparent that he was bleeding heavily. 

The Injury

4Mr Daglas was conveyed to hospital via ambulance.  Examination revealed a slash wound to the left side of his neck and a puncture wound to the middle of his upper chest area.  He underwent surgery on 27 October. 

5When you were interviewed by the police about this incident you initially claimed that the stab wound was caused by the neck of a bottle, however, you admitted later that you had a knife.  A report from Dr Christopher Edwards advised that as a result of your actions, Mr Daglas suffered a superficial laceration to the left neck.  This laceration was some 10 centimetres long.  The knife had not penetrated deeply.  The wound to the chest, however, was more serious.  It penetrated deeply and required exploration, washout and surgery. 

6In the opinion section of his report, Dr Edwards noted that if the wound had been three to five centimetres to the left, Mr Daglas would have sustained a potentially fatal cardiac injury.  However, he also stated that Mr Daglas' prognosis was good and that there were unlikely to be any long term effects. 

Victim Impact Statement

7In his victim impact statement, Mr Daglas states that he is now nervous about walking around town on his own.  The knife wound to his chest has left a thick keloid scar and it pains him when lifting and pushing at work.  He has been diagnosed by a psychiatrist as having mild depression and anxiety and he is more stressed and less happy in everyday situations. 

Personal Details

8Your personal details were contained in a psychological report from Mr Murphy.  You were born in New Zealand on 28 February 1994 so you are now 20 years old.  When you were about seven your mother relocated the family, being yourself and two brothers to Australia to escape violence from your father.  However, you had a good relationship with your stepfather and apparently also with your mother.  You left school at the beginning of Year 9 and worked for some 12 months with your stepfather.  You commenced an apprenticeship as a chef but then took a job roof tiling.  You have been in a de facto relationship for some 16 months.

9You have one prior matter, a conviction for robbery in Queensland. 

10You suffer from a generic health problem which affects the physicality of your right arm.  You also have problems with anger outbursts.  You informed Mr Murphy that you can become extremely angry to the point where you are unable to control yourself.  At times you report feeling so frustrated and angry that you will black out and not be able to recall what happened. 

11In Mr Murphy's opinion you have remorse for the damage you caused to Mr Daglas and for the distress you have caused your family.  Unfortunately, however, your therapy was brief as you withdrew from the process.  Mr Murphy considers you require further treatment for anger management. 

12There is also a report concerning your participation in the Credit Bail Support Program.  This revealed that you attended a number of appointments with respect to ongoing alcohol and illicit substance use but you didn't take full advantage of the free sessions with Mr Murphy. 

13As your counsel was concerned, as was your family, that your anger problems might be related to your genetic condition, the court ordered assessment by Arbias.  The court is now in receipt of that report.  It appears that your anger got the better of you once again on this occasion.  When you came into the assessment room to discuss the purpose for the assessment you were irritable and distracted and while you initially appeared to understand the purpose of the assessment and how it would assist you in the upcoming court proceedings, when you were told it would take about 3 hours you refused to participate.  You left the assessment room demanding the car keys from your mother and you were noted to knock over a couple of wheelie bins on your way out.

14Consequently Dr Lauren Fitzpatrick is unable to comment on your current cognitive functioning and she is unable to comment on any impact of your condition and/or previous alcohol and illicit drug use.  It was she who reported that you certainly presented as a young man with significant anger management and impulse control difficulties.

15Without any further information, however, it was impossible for her to say what impact your previous condition might have on your cognitive functioning. 

Plea Submissions

16Your counsel relied on your plea of guilty and your remorse.  He submitted that you were a relatively young offender and your chances of rehabilitation were reasonably good.  He sought a longer than normal parole period. 

Sentencing Remarks

17I have taken all the mitigating circumstances into account and I have given you a discount for your plea of guilty.  However, general and specific deterrence, as you can imagine, are very important in cases involving knives.  At first glance, if you think about it, your situation looks absolutely ridiculous.  To stab someone for woofing or barking at you would be laughable if it was not for the very serious consequences that could have eventuated.  You must do something about your anger problems, or you will face many years in gaol.  As it is, the sentence I am going to impose has to reflect the serious nature of your offending.  Would you please stand up.

18On the charges of recklessly cause serious injury, you are sentenced to three years imprisonment.  I fix a non‑parole period of 15 months.  Would you please sit down.  That means that you have a long period of parole, some 18 months, once you have served your sentence. 

19MR NIBBS:  6AAA.

20HER HONOUR:  But for your plea of guilty I would have sentenced you to four years, six months with a minimum of two years.  In relation to ‑ is there a 464ZF? 

21MR NIBBS:  Yes.

22HER HONOUR:  464ZF is granted on the basis that it is in the general interests of the public.  I believe that is probably consented to, is that correct? 

23MR BAKER:  Yes, Your Honour.

24HER HONOUR:  They will take a sample, a scraping from inside your mouth.  Don't get angry, just agree to it because if you get angry they can use any necessary physical force to obtain it from you.  It is just a very simple procedure, it doesn't hurt.  Is there anything else arising from this sentence? 

25MR NIBBS:  No, Your Honour.  We have the draft orders in respect of the 464.

26HER HONOUR:  Can you hand them up, please. 

27MR BAKER:  Perhaps this might be more for Corrections staff, Your Honour, but I have been informed that Mr Van Der Lee is someone who potentially suffers from outbursts at night time, thus that may be something which could cause trouble if he was in a cell with other prisoners, Your Honour.  It is just something, perhaps, that the Corrections staff could take note of.

28HER HONOUR:  We will mark on the records ‑ are they anger outbursts? 

29MR BAKER:  They are sort of loud nightmares, effectively.

30HER HONOUR:  Nightmares.  We will note that he suffers from nightmares and can become loud at night because of that issue.  That can be noted on the custody records.  Is there anything else that needs to be noted on custody records?  I would rather that people were straight forward.  Are there drug withdrawal issues? 

31MR BAKER:  Potential at drug withdrawal issues.

32HER HONOUR:  Can you also note on the custody record potential drug withdrawal issues as well. 

33MR NIBBS:  Before you leave, Your Honour, I handed you the wrong 464.  I apologise for that.  The ones you were given were non‑custody.

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