Director of Public Prosecutions v Walker

[2019] VCC 1668

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-19-00330

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH FRANCIS WALKER

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	11 October 2019
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2019] VCC 1668

REASONS FOR SENTENCE
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Subject:  Recklessly cause injury
Catchwords:  Excessive self-defence
Legislation Cited:  Sentencing Act 1991
Cases Cited:

Sentence:14 months imprisonment combined with a community corrections order of period of 6 months with treatment conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr V. Peters	McFarlane Criminal Lawyers

HER HONOUR

1Kenneth Francis Walker, you have pleaded guilty on indictment to a single charge of recklessly causing injury which occurred on 7 March of 2018. 

2This offence carries a maximum of five years imprisonment which is reflective of the seriousness with which Parliament regards this offence. 

3The circumstances of your offending are set out in a detailed document titled, 'Summary of Prosecution Opening Upon Plea' dated 9 October 2019.  This is what we call an agreed document and represents an acceptance by you of the elements of the offence with which you are charged, and the factual basis on which I am to sentence.

4In short compass, at around 10.20 am on the morning of 7 March 2018 the victim, Peter Ouslinis and his de-facto partner Karen Sauer, took a train from Traralgon to Morwell and attended at the Morwell Bowls Club.  They played poker machines and drank alcohol.  They left the bowls club between 2 and 4 pm and walked a short distance to Ms Sauer's brother's house, Craig Sauer.  You were at that premises with Mr Sauer and Michelle Wright.

5An argument ensued between Mr Sauer and Mr Ouslinis and the group were asked to leave.  You, Ms Sauer, Ms Wright and Mr Ouslinis all travelled by bus to your house in Rowell Street, Morwell.  Whilst on the bus Mr Ouslinis argued with you.  Once you had arrived at your premises you said you would ‘cook up a barbie’ and went outside.  Thereafter there are differing accounts about the sequence of events, noting that all four of you had been drinking.  

6It is Mr Ouslinis' recollection that Ms Sauer and Ms Wright were in the kitchen making salad and drinking vodka shots whilst you and he were outside at the barbeque.  He said that there was meat on skewers cooking.  Ms Sauer recalls that you all ate outside.  Once finished Ms Sauer and Ms Wright went back inside and sat at the kitchen table and were just talking whilst you and Mr Ouslinis remained outside.

7In terms of the offending Mr Ouslinis says that you had gone somewhere and when you returned you were coming towards him with something in your hand.  He describes it as about 10 centimetres long and that you were holding it at shoulder height.  The end of it was sticking out from the palm of your hand and you attacked him. 

8You say that Mr Ouslinis came at you and that you defended yourself with a skewer.  The Crown accept this aspect of your account.  The first strike nicked Mr Ouslinis with a slashing motion to the left side of his neck whilst saying the words, 'I hate you, cunt.'  Mr Ouslinis said that he yelled out, 'Stop it' but then you stabbed at his throat three times in quick succession in what was described as a dart throwing motion. 

9This resulted in two wounds.  One was superficial and the other required stitches.  Mr Ouslinis then held his neck and walked through the house to get away where he attended on nearby premises.

10An ambulance was called and provided medical assistance to Mr Ouslinis who was then taken to hospital.

11When police arrived they observed blood pooling at the front of 15 Rowell Street and a trail of blood drops leading back to your address in Rowell Street.  When police approached your address they saw you mopping the front entry area and walls of the house.  You were subsequently arrested.  You told police at that time that you were mopping up blood from Peter.  You also stated, 'He attacked me with a knife, I defended myself.'  I note a bloodied knife was located at your premises.

12During your formal record of interview you maintained that you were just defending yourself. 

13On 7 May 2018 Dr Jason Shriver from the Victorian Institute of Forensic Medicine reviewed the medical records relating to the treatment of Mr Ouslinis.  The pertinent parts of what he is able to say are as follows;

-   Firstly, the victim was admitted to the intensive care unit at the Royal Melbourne Hospital and was found to have penetrating neck injuries on the front of his neck.  One was to the central front area of the neck and another to the right side of the central front area of the neck.  Multiple gas bubbles in the soft tissue of the neck were apparent and blood loss. 

-   He required specialist trauma surgery under general anaesthesia in the operating theatre with wound wash out, exploration and repair.

-   The wounds themselves indicated sharp trauma and consisted of a one centimetre injury on the lower side of the frontal neck with a 5 centimetre scratch extending the incision injury to the outer left side and a one centimetre on the right side of the frontal centre, slightly angulated in the upper end.

14Doctor Shriver could not quantify the amount of force required to produce these injuries but indicated that it does not require excessive force to penetrate the skin and soft tissues with a sharp or pointed implement.  Doctor Shriver said that each measure and procedure implemented involves potential and inherent risks of complication and side effects.  Sharp impacts to the neck bear high risk of injuring major blood vessels and nerves, potentially causing life threatening blood loss or paralysis.

15I note the Crown concessions as to your intention and that you were acting in circumstances where you perceived the need to defend yourself.  Nevertheless this is still an offence of violence.  It has occurred in the context of alcohol use and abuse and in circumstances where the consequences for Mr Ouslinis could have been very dire indeed.  I note that there is no victim impact and through the Crown Ms Ouslinis has advised that he 'just wants to get on with his life'

16You were charged and remanded on 7 March 2018.  You were originally charged with attempted murder and the matter was committed to the Supreme Court.  That charge was subsequently downgraded and transferred to the County Court to be determined.  As of 8 October 2019 charges of recklessly cause serious injury with an alternative charge of reckless conduct endangering life were listed for trial before me.  The matter resolved to the charge to which you have now pleaded guilty.

17As I have already referred the prosecution have conceded two important aspects in that plea.  Firstly, the prosecution no longer allege that the injury sustained by Mr Ouslinis was a serious injury.  Secondly, they concede that the offending occurred in circumstances of self-defence but that your response to the circumstances was excessive. 

18I take into account that your plea should still be seen as one that has occurred at an early opportunity given the significant change in both the charge and factual circumstances.  You have previously offered to plead guilty to recklessly cause injury in March of 2018, an offer which was rejected at that time.  I take into account that there has been a degree of added stressors on you during the charge period given the original charges and the one to which you have now pleaded guilty.

19I have been referred to a criminal history which can accurately be described as extensive.  It commenced in 1996 and is comprised primarily of what I would describe as alcohol related offending, particularly in the context of driving as well as domestic violence.  You also have a history of breaching court orders.  You have a limited criminal history for violence but you do have a relevant prior matter from May of 2013 when you were dealt with for charges of reckless cause injury, damage property and unlawful assault for which you received a sentence of 15 months imprisonment with a six month
non-parole period.

20Prior to your offending on 7 March 2018 your most recent court appearance was for unlawful assault for which you received an adjourned undertaking at the Latrobe Magistrates' Court on 29 June 2016 and which was subsequently breached. 

21You are not to be punished for this offending a second time but it is relevant in order to assess firstly your prospects for rehabilitation and also the weight that needs to be given to denunciation, specific deterrence, that is putting you off from further offending, and protecting the community from you.  To reduce any risk with which you present it is clear that your use and abuse of alcohol needs to be addressed. 

22In terms of your personal circumstances you are currently 51 years of age.  You were raised by your mother and father in Ascot Vale.  Your father is described as a violent and abusive alcoholic in the materials before me.  You have memories of being beaten with belts and not being able to attend swimming carnivals because of the shame associated with apparent bruising.  You had to protect your mother from being beaten.  You recall your mother as always having a VB stubbie in her hand and abusing pills but otherwise describe her as loving and caring.

23When you were aged 11 or 12 you were told that your father was in fact your step-father and your biological father was incarcerated.  Your father and step-father had been business partners and following your biological father's incarceration your step-father took over the family.  You met your biological father at the age of 16 years but did not continue a significant relationship.  Your step-father passed away when you were aged 26 years and your mother passed away some 12-14 years ago.

24By the age of 13 you were made a ward of the state and placed in Turana.  You left at the age of 16 to live with foster parents who were stable and supportive.  You attended Ascot Vale Primary School and Footscray Technical College.  You left school in Year 7 and worked for 18 months as a stable hand with Bart Cummings.  By the age of 17 you travelled fruit picking around rural areas including Mildura, Adelaide, Perth, Broome and Darwin.  It was during this time that you met your ex-wife Lynne with whom you maintained a relationship for some 19 years and have two children, Sharni aged 20 and Jai aged around 16 years.

25You have worked at the Longford Gas Plant as a rigger and sandblaster for about nine years.  You then had your own sandblasting business for five years but left this when your business partner died.  You sold the business to provide for his family.  You have also worked offshore on oil rigs and have completed work at the desalination plant.  You report having all the required working tickets and in the past have had no difficulties sourcing employment.

26Much of this information comes from a report authored by Dr Aaron Cunningham, psychologist, which was tendered on your behalf.  Whilst of limited assistance from a sentencing perspective I have taken its contents into account.  It clearly sets out much of your background.  Doctor Cunningham states that you suffered depression throughout your life and in the past there have been suicide attempts and you have undergone electro convulsive therapy.  You report no longer being suicidal for the sake of your children.  You do report, or did to him at the time, feelings of emptiness and worthlessness and at the time of this report which is dated 26 April 2019, you were prescribed Avanza.

27In Dr Cunningham's opinion you present with major depressive disorder stemming from the instability, abuse and trauma in your childhood home.  He is of a view that you have maintained coping by suppressing your emotions through alcohol abuse.  This self-medication would appear to be self-evident and has blighted much of your life.

28On 26 June 2019 you made an application for bail before me.  On the application I heard evidence from your ex-wife who was an impressive witness and remains supportive of you.  She was willing to have you reside with her and your son in Toongabbie.  I also heard evidence on that application from Mr Brett Woods, chaplain with the Salvation Army, who gave evidence about the supports and services he was able to link you in with and provide.  I was ultimately satisfied a grant of bail was warranted and I bailed you on reasonably strict conditions.

29I now have received an updated letter from Mr Brett Woods, Salvation Army chaplain, together with a certificate of compliance and a record of attendance in terms of the Positive Life program which you have now completed.  That program consisted of 10 sessions which deal with self-awareness, anger, depression, stress, loneliness, grief and loss as well as problem solving, assertiveness, self-esteem and goal setting.  It is not suggested that this program will fix all that needs to be fixed but it is certainly a step in the right direction.

30Mr Woods also attended your plea hearing in support of you and is present here today for your sentence.  During his evidence he spoke about the concerted effort that you have made to change.  You have maintained regular contact with him, you have re-engaged with Alcoholics Anonymous, completed the Positive Lifestyle program as already outlined and are about to commence a program with the Australian Community Support Organisation.  Mr Woods has offered you continued support for as long as you desire it and I encourage you to maintain your contact with him. 

31During the bail period you did reside with your ex-wife Lynne and your son in Toongabbie, a relatively remote location.  As I understand it, it is intended that you remain there.  Your son has had learning difficulties but has recently started a welding course.  You have been working on the Toongabbie property together as well as your relationship and reconnection with him.  I am told that in more recent times you and Lynne have intentions to try and rekindle your marriage.  You must be well aware that the prospects of this being achieved will be largely dependent on your continued efforts to stop drinking and to deal with the issues that have led to drinking being such an attractive option for you.

32I accept that you are motivated to make this change and that your desire to repair your relationship with your ex-wife and provide a positive model for your son should help you maintain your current intentions.  I also accept that you have reached an age and stage in your life where you do want things to be different and the experiences associated with your initial committal to the Supreme Court, your pending trial now resolved and the work that you have done with Mr Woods should assist you even further.  Your prospects for rehabilitation are perhaps more enhanced at present than they have been in the past.

33Recognising all the matters to which I have been referred both parties submitted that a combination of imprisonment and a corrections order would adequately reflect all relevant sentencing considerations.  Accordingly I have had you assessed as to your suitability for a corrections order and you have been assessed as suitable.  I do see utility in maintaining some continued supervision of your rehabilitation given your history and that your efforts, whilst commendable, are still in their infancy.

34The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.  I am also required to balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.

35I make the ancillary orders as sought for the disposal of various items as scheduled, otherwise I take into account the sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case. I have also taken into account current sentencing practices for the offence to which you have pleaded guilty.

36In terms of the single charge of recklessly cause injury you are convicted and sentenced to 14 months imprisonment.  A period of 477 days is reckoned as having already been served.  That should mean you are not required to return to custody.

37In addition you are convicted and placed on a community correction order for a period of six months.  This is a therapeutic order and will require you to submit for treatment for alcohol use and abuse and you are to be supervised by the Office of Corrections.  Given you have already been assessed by and linked in with ACSO it is hope by me that you complete your work with them as part of the order I have just imposed.

38There are standard conditions to corrections orders.  The first and foremost of those is you must not commit any other offence during that six month period which can be punished by imprisonment.  You must also report within two working days to the nearest Community Corrections Office.  You are required to advise the corrections office of any change of address of where you are living and working and you must do so within two clear working days.  You are required to submit to visits as directed and obey all their instructions and directions.  You cannot leave the state of Victoria without their permission.

39You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion should you choose to take up that opportunity.  This order can be breached if you do not comply with it in terms of the conditions or if you reoffend during its operation.  Should you do so then you will be required to appear before me for a contravention hearing.  This may require me to resentence you for the charge of recklessly cause injury as well as considering the charge of contravening this community correction order.  I can only place you on such an order if you are prepared to sign documents to that effect.  Are you prepared to do so?

40OFFENDER:  Yes, I am, Your Honour.

41HER HONOUR: Thank you. Section 6AAA of the Sentencing Act 1991 requires me to state the sentence I would have imposed if you had not pleaded guilty to the charge. Whilst somewhat difficult in the circumstances of this particular case, if not for your plea of guilty I would have sentenced you to 20 months imprisonment with a minimum of 12 months before being eligible for parole.

42Is there anything arising?

43MR O'DOHERTY:  No, Your Honour.

44MR PETERS:  No, Your Honour.

45HER HONOUR:  I will have that document provided to your client and you can assist him if you wish, Mr Peters.

46MR PETERS:  Yes, Your Honour.

47HER HONOUR:  Thank you, Mr Walker, you can step out of the dock as far as I am concerned.  That completes the matter.  In the nicest possible way, I hope I do not see you again.

48OFFENDER:  No, you won't.

49HER HONOUR:  All right.

50OFFENDER:  Thank you, Your Honour.

51HER HONOUR:  Thank you.  Thank you, Mr Peters, you are excused.

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