Director of Public Prosecutions v Van Heythuysen
[2012] VCC 902
•29 June 2012 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL DIVISION
CR-11-01129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT VAN HEYTHUYSEN |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 17 February 2012 (Morwell) 26 June 2012 (Melbourne) | |
DATE OF SENTENCE: | 29 June 2012 (Melbourne) | |
CASE MAY BE CITED AS: | DPP v Van Heythuysen | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 902 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law - sentencing - aggravated burglary and intentionally causing serious injury - retaliatory event following earlier home invasion - serious injury - parity - Verdins - paranoid schizophrenia - sentences of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
For the Crown (Plea) (Sentence) | Mr D Cordy (17 February) Mr E.Thompson (26 June) Mr A Patton | Office of Public Prosecutions |
For the Accused (Plea) (Sentence) | Ms M Tittensor (17 February) Mr R. Connolly (26 June) Mr R Connolly | Connolly & Co |
HIS HONOUR:
1 Scott Van Heythuysen, you have pleaded guilty to one Count of aggravated burglary, for which the maximum penalty is 25 years’ imprisonment and one Count of intentionally causing serious injury, for which the maximum penalty is 20 years’ imprisonment. The complainant in the matter is Mr Peter Donelly and the offences are alleged to have occurred at Unit 13, 19 Toonalook Parade, Paynesville on 13 November 2010.
Circumstances of the offences
2 The circumstances of the offences were outlined in the Crown opening, Exhibit A, which was read in open Court on the plea and which was not contested, except in a couple of details, to which I will refer, by your counsel on the plea. Briefly, you lived in a block of units, the same block of units as the complainant. He lived in Unit 2 and you lived in Unit 13. The units are all on the ground floor and are very close together. The two of you had been neighbours for around three years and you would chat to each other, borrow food and drink and also share cannabis. You had also fought over cannabis from time to time and some of those fights had turned physical.
3 On Saturday, 13 November 2010, you were in your unit asleep. Your friend, Thomas Brown, was staying at the unit and was present. The complainant was in his unit with his friends, Wilkinson and Atkin. That morning, the complainant and Atkin attended your unit. They were let in by Brown. Atkin was carrying a tomahawk and Donelly was carrying an iron tube or pipe. The visitors were angry as they alleged that you had recently broken one of the windows of the complainant’s unit. You got out of bed and were in a pair of tracksuit pants without a top.
4 Donelly then proceeded to assault you, using an iron bar or tube, including hitting you with a baseball type action across the face, to the arm and the elbow on about two or three occasions. As a result of that assault, you sustained injuries including swelling, bruising and a fracture of your little finger. A matter in dispute on the plea was whether in fact at the time you had broken your wrist. In the record of interview you indicate that in fact you did break your wrist in that first assault, and given the details of the assault by Donelly I accept that your wrist was broken in that particular assault.
5 After the assault perpetrated by the complainant and Atkin on you, which included your television being broken, and having a verbal threat delivered to your friend, Brown, the two men left the unit and returned to their unit. You were angered by this and immediately proceeded to arm yourself with a knife from your own kitchen and despite protestations by Brown that you should not go to the complainant’s unit, you proceeded to go to the unit armed with a knife. This event constitutes aggravated burglary. A person was present and you were armed with an intention to assault that person.
6 You walked up to the complainant, in his unit, and said words to the effect, “Do you want to play with knives?” and you then thrust the knife towards the chest of the complainant causing him a penetrating wound. He fell backwards onto a blow-up plastic boat that was stored in one of the spare rooms. You then left the unit, returned to your own unit and rang the police and complained about the earlier assault on you.
7 At that point, an ambulance was called and the complainant was taken by ambulance to the Bairnsdale Hospital. Subsequently he was airlifted to the Alfred Hospital in Melbourne and he was found to have suffered a significant penetrating wound that resulted in him needing to be intubated as well as having suffered a haemothorax and the need for a catheter as well as an emergency sternotonomy. He had to have blood drained from around his heart, from his pericardium and an incision in the apex of his heart had to be oversewn and his chest cavity drained. He was placed into the Intensive Care Unit and into an induced coma, which he remained in for four days, and he was in hospital for about seven days.
8 Later that morning, at about 10.40 am, the police attended at your property and arrested you and located the knife. You then engaged in a record of interview during which you told the police that you had “lost the plot” and admitted arming yourself for protection before going to the complainant’s unit to talk to him. You also made a statement consistent with your record of interview on the same date.
9 You remained in custody for a period of ten days, and you were then bailed and moved from Paynesville to live with your mother in Omeo. You were charged, and the matter was the subject of a contested committal. You were committed for trial to this court and indicated that you would plead guilty at the first mention date.
10 Your assailants pleaded guilty to a charge of aggravated burglary and intentionally causing injury to you, and they were dealt with by Judge Lacava at Bairnsdale on 2 May 2011.
11 This plea was brought on at short notice at Morwell on 17 February 2012. The plea was adjourned to allow for a report from Forensicare to be obtained and the plea was resumed earlier this week.
12 In relation to the Crown summary, it was not disputed by your counsel, save that you assert, supported by instructions from your mother, that in the first assault you sustained a fracture to your wrist that required plaster for six weeks. I accept that. You were unable to recall the conversation between yourself and Brown before you went into the unit. Another matter to note, but which is not of much moment, is that Judge Lacava found that the original dispute between the two of you was over cannabis.
Victim Impact Statement
13 The complainant has filed a Victim Impact Statement. I have read that statement and regard the impact of your offending on the complainant as significant and it must be taken into account in the sentencing process and goes to increase the gravity of the offending. He indicates that he has had significant post-operative scarring and continuing pain from his heart region . It has had a significant psychological impact on him and his family. He is now seeing a forensic psychologist to help him cope with Post Traumatic Stress Disorder. He has lost his sense of trust, checks doors at night and finds himself totally paranoid. He has also become aggressive towards his family and friends due to paranoia and distrusts people and this has resulted in him becoming a virtual recluse.
14 It is clear from the complainant’s Victim Impact Statement that your offending has had a significant continuing impact on him, both in terms of physical sequelae, as well as psychological sequelae, and that must be recognised in the sentence imposed by the Court.
Offence seriousness and Moral Culpability
15 Both of these offences are at the upper end of the criminal calendar by reason of their maximum penalties. Here the events of that day were not commenced by you but by the complainant and his friend invading your unit armed with weapons. Here your intrusion into the complainant's unit was provoked by his earlier action. That said, you knew he would be present and took a knife despite being urged not to do so by your friend.
16 Turning to the second offence, this is a serious example of the offence. As the learned Crown Prosecutor submitted, your conduct was only millimetres from what could have been a fatal outcome. The use of the knife makes the offending serious. The fact that it was aimed at the upper body adds to that. You were, however, the subject of serious provocation by the unprovoked attack on you, and you were in a state of waking up after resuming the oral antipsychotic medication that you had taken the night before. Overlaying all this was your underlying paranoid schizophrenia.
17 Your Counsel put that your moral culpability for these offences is reduced due to your psychiatric condition and that the principles of Verdins are invoked. The basis for the submission is a medical report from Dr Gupta, psychiatrist, of Latrobe Regional Hospital. That report indicates that you are on a disability support pension and have a long history of mental illness, being paranoid schizophrenia, and poly-substance abuse, on a background of anti-social trends and impulsivity. His view was that your mental illness was under “fair control” prior to the offence and he stated:
“Assault and consequent injuries might have been a trigger for impulsivity and made him vulnerable to act.”
18 He also indicates that you stated to him that you did not know what was going on at the time and had no idea of the consequences.
19 You were also examined by Professor Dolan of Forensicare. She, in a comprehensive report, notes that you have a mental illness that requires ongoing pharmacological treatment for symptom control. She notes that it is currently in remission due to a regime of depo-medication and oral psychotic medication. She indicates that the disorder from which you suffer can result in a tendency to perceive excessive external threats to the person. She further notes that you appear to have a low average IQ which may increase the likelihood that you would “act impulsively with little foresight of the consequences of your actions.”
20 She considered whether or not the fact that you had not been compliant with medication had any impact causing a relapse at the time and was of the view that she found it difficult to argue that there had been a significant deterioration in your mental state at the time. She did, however, note that you reported feeling dazed and confused following the blows to the head and that you had been feeling drowsy and sedated as a result of taking your medication and the latter factor may have impaired your decision-making and resulted in the impulsive decision to stab the victim.
21 Professor Dolan concludes as follows:
“In conclusion, Mr Van Heythuysen clearly acted inappropriately following a traumatic invasion of his property and a significant threat to his personal safety. His reactions were impulsive and it is likely that his poor decision making was influenced by his limited intellectual function, a degree of confusion and sedation related to the medication and the assaults on his head. Mr Van Heythuysen also has an underlying chronic psychiatric disability, paranoid schizophrenia, which is characterised by persecutory and paranoid thinking and can result in an over sensitivity to external threat.”
22 The Court accepts the opinion of Professor Dolan, and I do find that there ought be a reduction in your moral culpability for these offences. This is particularly the case given that you were waking up after recommencing medication and the severity of the assault on you, which is objectively characterised by the fact that there were blows to the head with a metal pipe as well as you having your wrist broken. The learned Crown prosecutor did not really dispute that the circumstances of the offending did call for some reduction in your moral culpability.
23 Despite my finding that your moral culpability is reduced due to your condition at the time, this was still very serious offending.
Prior Convictions
24 You have admitted a not insignificant criminal record that commences when you were aged about 21, in 1977, and where you appeared in a New South Wales Local Court for theft and dishonesty charges.
25 On 27 March 1997, on three counts of assault, you were placed on a community-based order without conviction and ordered to perform 100 hours community work. On 30 July 1998, you were placed on a recognisance for twelve months for contravening a domestic violence order. You were dealt with in the Magistrates’ Court at Shepparton on 29 January 2002 on handling and receiving stolen goods and convicted and fined $500. At the Swan Hill Magistrates’ Court on 11 October 2006, on counts of using amphetamine, possessing a drug of dependence and using cannabis, you were fined an aggregate total of $500. On 24 May 2007, at the same court, on counts of intentionally causing injury and wilfully damaging property, you were placed on a 12 month community-based order. On 29 August 2007, you were sentenced to three months' imprisonment for recklessly causing injury. That sentence was suspended for a period of 12 months and that event breached the earlier imposed community-based order and you were sentenced to three months' imprisonment, again suspended, for the original sentences.
26 Your Counsel, on the plea, who stated that she had difficulty obtaining full instructions as regards the prior convictions, indicated that the appearances in Swan Hill in 2007 related to relationship problems with your then partner that gave rise to a minor assault. That said, your record, however, does indicate that you do have some prior convictions for offences of violence which is relevant in the sentencing process here.
Personal circumstances:
27 Your personal circumstances are that you are now nearly 36. You were born in Brisbane and have an older brother. Your parents separated when you were five and before that you were the subject of strict discipline from your father, who was in the armed forces. He encouraged you and your brother to fight each other. Your father was liable to transfers in his occupation with the result that your schooling was disrupted. You and your brother where shuffled between your parents after they separated. You were bullied at school and were diagnosed with both ADHD and dyslexia. You managed to make it to high school but were unable to pass Year 7 but remained at high school for some years. You then began using cannabis and when your father found out about that, when you were aged about 13, this resulted in a permanent rift with your father, who then left you with your mother and has had nothing to do with you since. You are effectively illiterate and your mother had to prepare your Victim Impact Statement on the plea for your assailant. Your mother, after she had full custody of you, sought to retrieve your education but was unable to successfully do so.
28 You left school some time around your mid teens after your mother attempted to organise schooling for you, and you worked in a service station at one stage. You eventually quietened down and things seemed to be going well from when you were aged about 21. When you were 21 or 22, you moved to Victoria, to the north-west part thereof, and got a job driving a tomato picker for a couple of years. You enjoyed this type of work. You were also working on a dairy farm for about four years in the Swan Hill area.
29 You met a local girl, Melinda, and commenced a relationship. While you were working on the dairy farm, you had your first mental breakdown and ended up in the Bendigo Base Hospital. Both your mother and Melinda had no idea of what was happening to you. It was around that time that you were ultimately diagnosed with schizophrenia when you were aged about 25. You have had a number of episodes since that time, including in 2008 an admission to the Latrobe Hospital. That admission coincided with excessive use of alcohol.
30 In 2003, Melinda bore your son, Caleb, and around that time you had another breakdown, as doctors attempted to adjust your medication levels. Another child was born in 2005. So you currently have two children, now aged nine and seven.
31 Problems with your medication and relationship breakdown gave rise to the events that led to your appearances before the Swan Hill Magistrates’ Court as a result of an event in 2005 which led to you being dealt with by that Court twice in 2007 for offences of violence perpetrated against your then partner. The two of you separated around that time and for the last three years prior to this offence, you were living in Paynesville.
32 Both before and since the offence, you have had relatively cordial relations with your ex-partner, who now lives in Melbourne, and you have access and custody of the children during school holidays. Your good relationship with your children is important in considering your rehabilitation. Your partner was present in the precincts of the court on the plea earlier in the week.
MATTERS IN MITIGATION
Remorse
33 Insight into offending and victim empathy are important considerations in sentencing. Here, in your record of interview, you express concern for the complainant and in the evidence you gave on his plea, you indicated that you had forgiven him and did not want him to be imprisoned. I regard your remorse as very considerable. As I said, it was expressed on his plea and has been noted in the reference from Ms Edwards of Omeo District Health and in the report from Professor Dolan.
34 Your remorse is also evidenced by your own plea of guilty to the offences. Overall, I give you significant weight to remorse in sentencing you. I also take into account your plea of guilty. As your counsel submitted, the Crown may not have been able to obtain a verdict of guilty to intentionally causing serious injury had it gone to trial. Your plea is therefore an important matter in mitigation. It also spared the complainant of a contested trial and facilitates the course of justice. It was entered after a contested committal. While that was not at the earliest opportunity, as your counsel submitted, the complainant at that stage had not admitted the earlier events that led to your assault on him.
Prospects of Rehabilitation
35 Your offending was situational in that it was provoked by the invasion of your unit and the attack on you. It was not premeditated and thus can be seen as a somewhat out-of-character act. Given your personal background and psychiatric history and condition, the community has an important stake in your rehabilitation. Your prior convictions indicate you have some prior convictions for violence, admittedly associated with relationship issues and breakdowns in your psychiatric condition. In the period since these offences, you have moved to the remote town of Omeo where you are living with your mother and your medication regime and psychiatric condition has stabilised.
36
Tendered before me were a number of references that indicate that in the
18 months since this offence, your psychiatric condition has been stable and you have been productively employed for some of the time. You have also engaged well with the local health services and in your local community. I have taken into account the references, including a reference from the Bondinaro family, who you work for, and from Ms Holah of Accommodation at Dinner Plain, who you also worked for, and from a disability employment consultant, Mr Dale Morgan, who has managed to secure supported or subsidised employment for you.
37 It is unfortunate that a sentence of imprisonment to be served does have the potential to set back your path of rehabilitation, and I have applied the principle of parsimony in these circumstances.
38 Given the history of the events since this offending and your ability to stabilise your medication and get into the workforce, I regard your prospects for rehabilitation as reasonably good. They are, however, dependent on continued stabilisation of your condition under medication.
Purposes of sentencing
39 The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
Sentencing Submissions
40 The Crown submitted that this was serious offending that called for a sentence of imprisonment to be immediately served. The Crown submitted a sentencing range similar to that that was submitted in relation to the complainant and his co-offender, but with a shorter minimum term. This was to ensure that there was no unjustified disparity. This applied particularly to the offence of aggravated burglary.
41 The prosecutor raised the issue of parity between the sentence imposed upon the complainant and his accomplice and you. The two offences of aggravated burglary do have a degree of comparability. Your culpability for the aggravated burglary, leaving aside your personal situation, is lower than that of the complainant and his co-offender. Their actions commenced the matter, and they were acting in concert. You were the subject of a significant attack, and as stated by Mr Cordy, you responded in a disproportionate manner.
42 In relation to the injury offences, however, the position does not have the same degree of comparability. When you were assaulted in company, your injuries were nowhere near as significant as those inflicted on the complainant, and you used a potentially deadly weapon. Further, the complainant and his co-offender pleaded guilty to and were sentenced for intentionally causing injury, whereas you face the more serious charge of intentionally causing serious injury, an offence which the Court of Appeal has repeatedly noted calls for serious punishment. Thus, the gravity of the offence and the consequences are graver in your case and must be dealt with accordingly.
43
The sentencing range submitted by the Crown in this matter was a total effective sentence of three to four years, with a non parole period of
18 months to 24 months. The Crown re-affirmed its sentencing range after the report was received from Professor Dolan.
44
Ms Tittensor, your counsel, submitted that any sentence of imprisonment ought be suspended similar to that imposed on the complainant and his
co-offender.
45 Mr Connolly, who resumed the plea after the report was received from Professor Dolan, also sought a suspended sentence.
46 Before consideration can be given to a suspension of a sentence of imprisonment, the appropriate sentence must be fixed, and it must be no more than three years.
47 Having regard to the seriousness of the offending here, I do not accept that a total sentence of imprisonment of three years or less meets all the requirements of sentencing here.
48 First, I accept that general deterrence is to be sensibly moderated due to the circumstances of the offending where you were the subject of an unprovoked attack in company in your own home.
49 Next, your psychiatric condition as identified by the psychiatrists indicates that your impulsive response and lack of the exercise of judgment in the face of an attack on you contributed to your disproportionate response that had near fatal consequences for the complainant, and this also calls for moderation of general deterrence.
50 Specific deterrence remains salient given your albeit limited prior history of violence.
51 In this case consideration of denunciation and just punishment call for a significant period of imprisonment. This applies even though your assailants were dealt with by way of a sentence of imprisonment that was suspended for a period of three years.
52 The reality is, as I have indicated, you have pleaded guilty to a far more serious offence of intentionally causing serious injury than that pleaded to by your assailants, and your offending has had a significant and permanent impact on the complainant, which must be accorded weight.
53 Your psychiatric condition and the very significant efforts that you have undertaken to achieve rehabilitation must be recognised and call for a maximum degree of leniency. Indeed, your efforts will be set back by the sentence. However, the overriding considerations of denunciation and just punishment must be accorded their weight.
54 In view of your psychiatric condition, albeit stable under medication, I am satisfied that you will be vulnerable in a prison environment and you will find that more onerous than able bodied persons, and I have taken that into account. I have also taken the relatively short period of delay in finalising this matter into account in your favour.
55 Your efforts at rehabilitation, and the community interest in that being achieved, call in this particular case for a longer period than usual during which you will have the opportunity to serve your sentence in the community. This was recognised in the Crown range and will be recognised in the sentence.
56 The sentence of the court is as follows:
57 On Count 1 of aggravated burglary, you are sentenced to a term of imprisonment of two and a half years. On Count 2 of intentionally causing serious injury, you are sentenced to a term of imprisonment of three and a half years. The sentences are concurrent.
58 I order that you serve a minimum term of one year and nine months before being eligible for parole.
59 I declare pre-sentence detention of 13 days, Mr Prosecutor?
60 MR PATTON: Yes, Your Honour.
61 HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty, I would have imposed a total effective sentence of five years with a minimum period of three years.
62 The Crown has sought a disposal order for the knife, and I make that disposal order. So, the knife is to be disposed of.
63 Mr Prosecutor, this retention order, have you looked at the wording of it?
64 MR PATTON: I haven't, Your Honour. I wasn't privy to the drafting of the order. I apologise for that.
65 HIS HONOUR: Yes, I will just make a handwritten amendment to it. The Crown is seeking to retain the forensic sample order that has been taken from you, Mr Van Heythuysen, and it is appropriate that that be done. It is just the wording does not include the word "retain." I will just add that in hand.
66 MR PATTON: Thank you, Your Honour.
67 HIS HONOUR: Are there any other matters, Mr Prosecutor?
68 MR PATTON: No, Your Honour.
69 HIS HONOUR: Mr Connelly, any other matters?
70 MR CONNELLY: No, Your Honour.
71 HIS HONOUR: Yes, I thank you, Mr Prosecutor. Thank you, Mr Connelly and Ms Tittensor, in her absence.
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