Director of Public Prosecutions v Wade Duffy
[2023] VCC 1455
•22 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02442
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| wade duffy |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 21 August 2023 | |
DATE OF SENTENCE: | 22 August 2023 | |
CASE MAY BE CITED AS: | DPP v Wade Duffy | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1455 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — plea of guilty – intentionally causing serious injury (1 charge) and a summary charge for committing this offence whilst on bail.
Cases Cited:Bugmy v R [2013] HCA 37; R v Verdins (2007) VR 269; Mansfield v The Queen [2017] VSCA 220; DPP v Webber [2017] VSCA 93; Nash v The Queen (2013) 40 VR 134; Worboyes v The Queen [2021] VSCA 169; Lukudu v The Queen [2019] VSCA 248.
Sentence: Total effective sentence of 5 years imprisonment. Non-parole period of 3 years.
Section 6AAA declaration: But for the plea of guilty, a sentence of seven years and six months imprisonment with a non-parole period of five years and six months would have been imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Stefanovic | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A Malik | Balmer & Associates |
HER HONOUR:
1Wade Duffy you have pleaded guilty to one charge of intentionally causing serious injury for which the maximum penalty is 20 years imprisonment. You were on bail when you committed this offence and you have also pleaded guilty to the summary offence of committing an indictable offence on bail for which the maximum penalty is three months imprisonment.
2Intentionally causing serious injury is a category 2 offence and therefore section 5 (2H) of the Sentencing Act 1991 (Vic) applies, meaning the Court must impose a custodial sentence which cannot be combined with a community correction order unless one of the special reasons set out in the Act applies. There was no submission made that a special reason exists in your case.
3The circumstances of your offending are set out in the prosecution opening and in video footage which depicts the incident.
4In brief terms the circumstances of your offending were as follows.
5At around 6.30pm on 8 November 2021 the victim Kade McHenry attended at your home. There was some history of animosity between the pair of you. You were drinking together and with another friend of yours who was also present. You were drinking excessively.
6Mr McHenry asked to go out and have a sparring session. You had a boxing area set up in your shed. Mr McHenry had brought boxing hand wraps with him and he wrapped his hands.
7You went outside and started boxing. Within seconds Mr McHenry tripped and went to the ground. He put his hands in front of his face to protect himself.
8You dropped down on one knee and punched him to the ribs, abdomen and face. Mr McHenry was knocked unconscious. When Mr McHenry was unconscious on the ground you punched him to the face about 8 -10 times. You whispered into his ear “night, night”.
9At around 7.30pm you sent a message to a friend of Mr McHenry telling her to come and get him or you were going to bash him. You later sent a message saying, “too late”. The friend arrived with her partner and took Mr McHenry to the Emergency Department at Ballarat Base Hospital.
10Notes from the Emergency Department state that Mr McHenry presented unconscious and had facial fractures including a right eye socket fracture with bruising to the soft tissue around both eyes. The following interventions were required.
(i) Mr McHenry was intubated to maintain breathing with subsequent artificial ventilation;
(ii) An indwelling urinary catheter was inserted to monitor urine production (kidney function);
(iii) He was administered pain relief medication, anaesthetics, sedatives, and medication to strengthen heart function and prevent seizures;
(iv) A hard collar was applied to protect the neck spine;
(v) A chest tubular drainage was inserted to the right side of the chest in response to a right pneumothorax (collapsed lung).
11The following day Mr McHenry was transferred to the Royal Melbourne Hospital in a coma. A CT scan revealed.
(i) eye socket fractures on both sides;
(ii) a large right sided pneumothorax with high grade collapse of the right and upper lobes;
(iii) Blood collection in the scalp at the right back of the head (right posterior scalp haematoma) and;
(iv) eye injuries including sloughing of the cornea and conjunctive swelling.
12Mr McHenry was taken to the ICU and discharged on 16 November 2021.
13An opinion was sought from Dr Jason Schrieber of the Victorian Forensic Institute of Medicine. Dr Schrieber gave the opinion that there was evidence of blunt trauma to Mr McHenry’s head, face and chest causing deep unconsciousness and extremely low oxygen saturation, as well as facial fracture and lung collapse.
14Dr Schrieber gave the opinion that Mr McHenry’s injuries were life threatening and required emergency intervention by way of ventilatory support, resuscitative measures and surgically inserted chest drains to assist lung inflation for Mr Mc Henry’s collapsed lung. Dr Schrieber considered, inter alia, that Mr McHenry’s head injury had caused deep unconsciousness and a life threatening extremely low oxygen saturation and hypothermic state.
15Mr McHenry has disengaged from this prosecution. He did not make a victim impact statement. He has not provided investigators with any updated material on his injuries and his progress.
16I sentence you on the basis you caused serious injuries to Mr McHenry that were life threatening in the way explained by Dr Schrieber.
17You were arrested on the 9 November 2021. You were taken to the Ballarat Police Station where you made a no comment record of interview. Prior to your arrest and interview you sent messages on Facebook boasting about your behaviour.
18You were on bail for the alleged trafficking of cannabis and other offences when you committed this offence. You have subsequently pleaded guilty and served a sentence of 6 months for that offending. You have been in custody since 9 November 2021.
Personal Circumstances.
19I turn now to your personal circumstances.
20In outlining your personal circumstances, I rely on the submissions made by your counsel, Mr Malik and the psychological report of Naomi Cameron, forensic psychologist, date 30 March 2023
21You were born in May 1992. You are presently 31 years old.
22You are the second oldest of three children. Your parents separated when you were in your teens. You remained in your mother’s care.
23Your childhood was marred by a high level of violence in the family home. Your father was an alcoholic and violent, and your elder brother, who suffered mental illness was also violent. You told Ms Cameron that you experienced chronic physical abuse perpetrated by your brother between the ages of five and 18. He sometimes used weapons and on one occasion he stabbed you. Your brother also abused other family members. This account is supported by your sister, Paisley, in her reference addressed to the court and tendered at your plea.
24You left home at 18 to escape your brother. Your relationship with other family members improved when you left the family home, and you have the continued support of your family. You are also supported by your long-term partner, Danika Meade.
25You left school in year 11. You reported to Ms Cameron that you had achieved satisfactory grades, but you had behavioural difficulties likely related to your diagnosis of attention deficit and hyperactivity disorder (ADHD) which you were diagnosed with in your adolescence and prescribed dexamphetamine.
26After school you have had a sporadic work history. In recent years you have been on the Disability Support Pension. (DSP).
27You have a longstanding history of engagement with mental health services for various conditions including generalised anxiety disorder with agoraphobia and panic attacks. Social phobia, depression, post traumatic stress disorder (PTSD) (referable to your childhood), and ADHD. A private treating psychiatrist, Dr Gerald O’Brien, has been involved in your care since 2012. Your mental health is stabilising in custody.
28You have a history of polysubstance abuse from the age of 16. You have abused alcohol, cannabis, amphetamines and have used cocaine. You told Ms Cameron your drug use increased after the death of a close friend. You told Ms Cameron in addition to an increased use of alcohol and cannabis you were also using benzodiazepines (Xanax) taking up to 20 4mg tablets a day.
29On the circumstances of the offending, you told Ms Cameron that your partner was 8 months pregnant, and you were stressed about the arrival of your first child. You were also experiencing unresolved grief over your friend’s death. You said on the day in question you were “ridiculously drunk” having consumed about 20 beers and using cannabis and Xanax. You told Ms Cameron Mr McHenry had made threats to you and you felt threatened. You told Ms Cameron you were remorseful. You told her you gained insight into the wrongfulness of your behaviour when your learned how serious Mr McHenry’s injuries were.
30Ms Cameron concluded that you have a documented engagement with mental health services as a result of your dysfunctional childhood and enduring mental health problems. She says, “He has a history of instability and adversity characterised by his parent’s separation, his father’s alcoholism, and his brother’s severe mental health issues. He also had a history of trauma characterised by perpetual physical violence perpetrated by his brother. His functioning in society has been impacted by childhood trauma and emotional dysregulation, resulting in maladaptive responses to life stressors (i.e., substance abuse) which has aggravated his conditions, limited his social participation and social competence, and interfered with his capacity for employment”.
31She goes on, “Despite engagement with mental health services for 10 years, Mr Duffy’s functioning has remained impaired, he has shown non-adherence with antidepressant medication and has not sustained effective and adequate coping resources to manage his complex psychological distress and emotional dysregulation. He has received the DSP for his mental health conditions and his unemployment has been perpetuated by his mental health problems and his substances".
32Ms Cameron assessed you as a moderate risk of re-offending.
33She gives the opinion at the time of your offending your acute intoxication would have heighten your risk taking, impulsivity and behavioural disinhibition.
34She gives the opinion that imprisonment would likely weigh more heavily on you than a person without your mental health conditions.
35You have a prior criminal conviction for unlawful assault in 2011 for which you were fined. You told Ms Cameron you were involved in a drunken fight with a stranger.
Submissions.
36I turn now to the submissions of the parties, and I begin with the submissions of Mr Malik on behalf of the defence.
37First, Mr Malik relied on your plea of guilty. He submitted even though your plea was entered after two scheduled committals it should still be regarded as a plea at the earliest opportunity in circumstances where a key prosecution witness failed to attend and give evidence at the committal on two occasions and where the plea was entered upon the prosecution’s acceptance of a plea to the current charge rather than to the more serious charge of intentionally causing serious injury in circumstances of gross violence.
38Mr Malik submitted your plea had significant utilitarian value and was also indicative of remorse on your part. He submitted you have gained insight into the wrongfulness of your behaviour subsequent to sending the Facebook messages and have expressed remorse to Ms Cameron, and to Ms Meade.
39Secondly, he submitted Bugmy[1] principles were engaged in sentencing you. He submitted your background had normalised and predisposed you to violence and should accordingly be taken into account in my assessment of your subjective culpability to reduce your moral culpability.
[1] [2013] HCA 37.
40Thirdly, Mr Malik submitted Verdins[2] limb 5 was engaged in sentencing you on the basis of Ms Cameron’s report and opinion. He acknowledged given your very high drug and alcohol consumption on the day in question he could not submit, notwithstanding your mental health conditions, that Verdins operated to reduce your moral culpability.
[2] (2007) 16 VR 269.
41Fourthly, Mr Malik submitted you have now been in custody around 1 year and 9 months since this offending. The proceedings have incurred some delay due to Covid, and because of the non-attendance of a prosecution witness delaying committal proceeding on two occasions.
42He submitted you have experienced stress and anguish because of this delay, and he also submitted that you have been able to demonstrate your good prospects for rehabilitation during this period.
43Mr Malik submitted your first child was born some weeks after you were taken into custody for this offending. He submitted the birth of your child and the lost opportunity to be with your child in his first years and to bond with him and to support your partner, has motivated you to rehabilitate and become a positive role model. Mr Malik relies also on your continued family support and an offer on employment tendered at your plea. Certificates tendered also demonstrate that you remain drug free in custody and that you have participated in various occupational courses.
44Fifthly, Mr Malik submitted you have only one prior conviction which although relevant is much less serious.
45Finally, he submitted you have served 6 months in relation to other offending which is not to be declared as pre-sentence detention in relation to this offending but should remain within my contemplation in the application of the principle of totality.
46On the gravity of your offending Mr Malik acknowledged its seriousness lay in you punching multiple times your victim when he was unconscious. He referred me to the case of Mansfield v The Queen[3] in which a 19-year-old offender was sentenced to 4 years and 3 months with a non-parole period of 2 year and 3 months upon a plea of guilty for repeatedly punching an unconscious victim. The Court of Appeal dismissed an appeal against sentence by the offender.
[3] [2017] VSCA 220.
47Mr Malik accepted that a sentence of imprisonment consisting of a head sentence and a non-parole period was the only appropriate sentence but submitted a longer than usual non-parole period would facilitate your rehabilitation.
48Mr Stefanovic on behalf of the Director submitted that the gravity of your offending called for a significant term of imprisonment.
49He did not dispute that Bugmy principles were engaged in sentencing you, nor did he dispute Verdins limb 5 was engaged.
50He referred me to the case of DPP v Webber[4] in which the Court of Appeal upheld a Director’s Appeal against a sentence of 23 months in combination with an 18-month community correction order for an unprovoked attack on a victim occasioning serious injury. The appeal was allowed, and the respondent resentenced to 5 years imprisonment with a non-parole period of 3 years.
[4] [2017] VSCA 93.
51Both the parties referred me to the case of Nash[5] and the considerations to be taken into account by sentencing judges in assessing the gravity of any particular instance of intentionally causing serious injury. They are:
(i) the offender’s intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?
(ii) the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
(iii) how vulnerable the victim was;
(iv) whether a weapon was used;
(v) how long the attack on the victim lasted;
(vi) whether the offender acted alone or in company[6].
[5] (2013) 40 VR 134.
[6] Ibid at [10].
Objective Gravity and Moral Culpability.
52I turn now to my own assessment of the objective gravity of your offending and your moral culpability.
53Better than any words the short video tendered at your plea depicts the brutality and cowardly nature of your attack on Mr McHenry. Yes, your attack was of short duration and yes, you were unarmed, but you repeatedly struck Mr McHenry to the head while he was unconscious and defenceless on the ground. His head can be observed moving violently from side to side, indicating the force with which you were striking him. Having said this, although your attack was viscous in the way I have just described, I am prepared to conclude your intention was to cause him serious injury rather than to cause really serious or maximum injury.
54Mr McHenry suffered life threatening injuries because of your assault. You were on bail at the time you committed this offence and that is an aggravating aspect of your conduct.
55I assess your conduct as objectively serious. Your moral culpability is high; however I accept that Bugmy principles moderate your moral culpability both in a general and specific sense. I accept that you background of trauma and dysfunction has contributed to your mental health difficulties and your drug use. I also accept on the basis of Ms Cameron’s report, that it has predisposed you to violence and has normalised violent behaviour.
Application of Sentencing Principles.
56The sentencing principles of general and specific deterrence, denunciation, just punishment and community protection are all engaged in sentencing you.
57The message must be sent by the sentence I impose that the Courts will not tolerate episodes of drunken, drug-induced violence that leave victims with serious, life-threatening injuries.
58The message must also be sent to you that you must never behave in this disgraceful manner again.
59Although I have accepted that your moral culpability is moderated because of your violent and dysfunctional background, weighted against this is the gravity of your offending and its aggravating features.
60I take into account your plea of guilty, and I sentence you in accordance with the principles set out in the case of Worboyes[7]. I accept that subsequent to sending the Facebook messages you have reflected on your conduct, and you have gained some insight into your behaviour. I accept that you have shown some remorse for your offending.
[7] [2021] VSCA 169.
61I accept that the birth your son has motivated you to rehabilitate, and I accept you have some structures in place to facilitate your rehabilitation, notably your family support and at least an offer of employment upon release. However, you have an established history of poorly managed mental health disorders and a history of entrenched polysubstance abuse, and therefore in accordance with Ms Cameron’s own conclusion I assess your risk of reoffending as moderate. Community protection is engaged in sentencing you, and I can only assess your prospects of rehabilitation as at best, fair.
62I take into the comparator cases to which I was referred[8], and which were of some assistance in coming to a just and appropriate sentence for you although I must sentence you on the facts and circumstance of your particular case. I also take into account current sentencing practices.
[8] The prosecution also relied on the case of Lukudu v The Queen [2019] VSCA 248 which involved the
use of a knife and was not of assistance as a comparator case
63I take into account the delay in finalising this matter and its effects on you.
64I take into account the ongoing difficult conditions in prisons, and I take into account the time you have served for other offences in the application of the principle of totality.
65Having considered all the matters, I am required to under the Sentencing Act and matter personal to you I intend to sentence you as follows.
66On charge 1 you are convicted and sentenced to 5 years imprisonment.
67On the summary charge you are convicted and sentenced to 1 month imprisonment. I direct that this sentence be served wholly concurrently upon charge 1.
68That makes a total effective sentence of 5 years imprisonment. I direct you serve a non-parole period of 3 years.
69Pursuant to section 18 (4) of the Sentencing Act I direct you have served 539 days of presentence detention and I direct this be entered into the records of the Court,
70Pursuant to section 6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to a sentence of seven years and six months imprisonment with a non-parole period of five years and six months.
71I make the forfeiture order sought by the prosecution.
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