Director of Public Prosecutions v Warner
[2019] VCC 1104
•22 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL WARNER |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2019 | |
DATE OF SENTENCE: | 22 July 2019 | |
CASE MAY BE CITED AS: | DPP v Warner | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1104 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge of causing injury intentionally – one charge of resisting an emergency worker on duty – prior criminal record – offender armed with a sword – act of extreme violence – offender diagnosed with autism spectrum disorder and intellectual deficits – mental impairment – Verdins principles – intoxication and abuse of alcohol significant contributor to offending behaviour
Legislation Cited: Crimes Act 1958, Bail Act 1977, Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102; 16 VR 269
Sentence: Total effective sentence of 5 years and 8 months imprisonment. Eligible for parole after serving 4 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Mr T Fitzpatrick | Michael Benjamin & Associates |
HIS HONOUR:
Introduction
Joel Warner, you have pleaded guilty to the following charges:
·One charge of causing injury intentionally contrary to s 16 of the Crimes Act 1958, which carries a maximum penalty of 20 years imprisonment (Charge 1); and
·One charge of resisting an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act 1958 which carries a maximum penalty of 5 years imprisonment (Charge 2).
You have also pleaded guilty to one related summary Charge 3, commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment or 30 penalty units.
You have admitted your Criminal Record.
Circumstances of the offending
Prosecution opening was exhibited on the plea and may be summarised as follows:
On 22 July 2018, Darren Clarke, aged 32, was at the Mordialloc Hotel with a friend when he met you.
At approximately 3pm you and Mr Clarke went to your home at Unit 1, 62 Balcombe Road, Mentone, where you rented a room from Cheryl Smith. By this stage both of you were observed to be drunk, drinking stubbies of Corona beer.
After a short time spent in your bedroom listening to music, you and Mr Clark walked to the Caltex service station on Balcombe Road, Mentone. CCTV records you going to the service station about 3.37pm.
A short time later, you and Mr Clarke were seen by a witness across the other side of Balcombe Road punching each other. Mr Clarke was seen to fall to the ground with you on top of him continuing to punch him. You also grabbed Mr Clarke around the neck.
You and Mr Clarke separated, you returned to your home and Mr Clarke walked along Station Street.
You spoke to Ms Smith, saying “Lock the back door”. When she asked you why, you replied “He’s coming back to get ya, he just tried to hit me in the head with a rock.”
You went to your room and then left the house again. You went back to Station Street and found Mr Clarke. You were carrying a silver coloured sword and approached Mr Clarke swinging the sword in a slashing motion. Mr Clark backed away holding up his hands but was stabbed in the stomach by you. You chased Mr Clarke between cars attempting to stab him again. It is these facts that relate to Charge 1, intentionally cause serious injury.
Police arrived and you ran back to your home. When you arrived, you said to Ms Smith “I stabbed him, I stabbed him. He was coming back to get ya. He tried to hit me in the head with a rock. If the cops come I’m not here.”
Police arrived at the house and you were arrested in your bedroom. You asked police about Mr Clarke, acknowledging that you had stabbed him.
You were transported to Moorabbin police station and as police attempted to remove you from the police van, you repeatedly kicked the door and swore at police. As you left the van, you approached police officers and attempted to spit at them before you were sprayed with OC foam. You ran to the other side of the van before attempting to kick police members. You were subdued with a second spray of OC foam and taken into the cells however you were not able to be interviewed. It is these facts that relate to Charge 2, resist emergency worker on duty.
Mr Clarke suffered a number of injuries as follows:
·a 10-15cm open wound on the left upper abdominal area, 5cm deep;
·a 3-5cm right abdominal open wound, 5cm deep penetrating the facia and muscle tissue;
·a 5-10cm left abdominal wound with bowel protrusion, including: penetration of the sigmoid colon; mesocolon laceration; penetration of the peritoneum with small bowel injury and injury to the main bowel artery;
·a laceration of the spleen;
·a subgaleal haematoma to the head;
·a penetrating wound to the back of the left elbow; and
·open wound injuries to the fingers and back of the right hand.
The injuries required repeated surgeries, attachment of a colostomy bag, blood transfusions and reconstructive surgeries. Mr Clarke was in hospital from 22 July – 1 August 2018 and will require further ongoing treatment.
Nature and gravity of the offending
The gravity of the offence of intentionally causing serious injury is reflected by the maximum penalty of 20 years’ imprisonment. In this instance it is self-evident that your conduct in relation to charge one is very serious. Your unprovoked and unexpected attack on Mr Clarke was an act of extreme violence and would have been a terrifying experience for him. Your actions left Mr Clarke with ongoing physical and psychological injuries.
According to the account you gave to Associate Professor Andrew Carroll, consultant forensic psychiatrist, you had consumed approximately 10 beers in the form of Carlton Draft at the hotel followed by bottled beer in addition to several glasses of red wine. You also told Professor Carroll that you had consumed two Seroquel tablets that you had obtained illicitly.
Although there seems to have been some altercation between you and Mr Clarke earlier in the afternoon, that event seems to have concluded after you were seen punching Mr Clarke while he was on the ground. However, whatever occurred between you and Mr Clarke did not justify your planned return with a weapon and the subsequent attack on Mr Clarke stabbing him while he had his hands up and was backing away. You then chased Mr Clarke attempting to stab him again. There can be no doubt that your conduct would have been an extremely terrifying experience for Mr Clarke which he has ultimately confirmed in his victim impact statement.
I will refer to the psychological evidence shortly however, in general terms you were very intoxicated and, in combination with some pre-existing psychological difficulties, you reacted in a violent manner. You were clearly very distressed and felt that you were under threat.
Following arrest, when police had transported you to the Moorabbin police station, you again reacted in a violent and confrontational way kicking at the door of the police van and attempting to spit at police officers. While police officers face these types of confrontations on a regular basis, it does not diminish the fact that your behaviour and non compliance with police directions makes their job more difficult and puts them at risk.
Victim impact statements
Victim impact statements were tendered from Darren Clarke and his older sister, Melissa Clarke. Both statements were read at the plea.
Darren Clarke speaks in detail of the physical and psychological effect of the incident. The injuries to his fingers and arm give him ongoing pain as the nerves continue to regenerate. He notes that he has ongoing appointments with various surgeons and will require further surgery. He suffers recurring flashbacks and struggles with day to day activities. He has been unable to return to work and as such, has suffered financially causing him to move back to his parent’s home. He also notes that the criminal justice process has taken a toll on him.
Melissa Clarke states that she has a very close relationship with her brother as her only sibling. She notes that seeing her brother suffer physically and mentally has also had such an effect on her that she has sought counselling. Ms Clarke also coveys the effect of the crime on her parents and the family as a whole noting that the family is a very close and supportive family.
I have taken the contents of the two victim impact statements into account.
Personal circumstances
You are now 33 years of age. You were raised in Dingley in Melbourne. You are an only child. Although your parents separated when you were 21, you continue to enjoy the support your parents, both of whom were present at the plea.
You attended Parkdale Secondary College until the end of year seven and then were enrolled in an alternative school ultimately leaving when you were 16. You had significant problems at school both academically and socially. Your mother reported to Professor Carroll that you were disruptive at school and were bullied. The alternative school you attended provided you with better support however you ultimately left after year nine.
You have done various kinds of labouring work including in the building fields working with your father. You ceased work about five years ago and have done some casual gardening work and voluntary work in recent years.
As noted, a psychological report was prepared by Associate Professor Andrew Carroll and tendered on the plea. The report provides significant detail as to your medical and psychological history and I have taken the contents of that report into account.
Professor Carroll is of the view that you are suffering from a combination of disorders and were so suffering at the time of the offending. He notes firstly your developmental history marked by profound deficits with social communication and interaction, inflexibility and sensory hyperactivity which in his view are consistent with autism spectrum disorder, not diagnosed in childhood. Secondly, Professor Carroll refers to your intellectual impairment based on your IQ which is in the borderline range. He notes that you are very unsophisticated and concrete in your thinking and have marked problems with adaptive functioning. This has resulted in you not being able to hold down an intimate relationship, struggling to hold down paid employment resulting ultimately in you being placed on a disability support pension for many years.
In addition to your cognitive difficulties and autism spectrum disorder, Professor Carroll refers to your abuse of alcohol which in his view amounts to an Alcohol Use Disorder. He notes that you find temporary wellbeing from alcohol binges which rapidly leads to disinhibition, persecutory thinking and an associated propensity for aggression to yourself and others which was clearly the case here. You have a history of repeatedly engaging in problematic behaviours in the form of criminal offending and deliberate self harm which have all been in the context of alcohol intoxication.
Professor Carroll notes that you continue to hold grudges reflecting beliefs about past events. He notes that those beliefs do not have the qualities of psychotic delusions but rather are overvalued ideas and in his view are secondary to your autism and related social impairments rather than reflective of an underlying primary psychotic illness.
Prof Carroll concludes that in a prison environment the inherent stress and arousal levels are such that your fragile defences have become overwhelmed and you have become psychotic with brief periods of persecutory delusional thinking. He reiterates however that in his view these do not indicate an underlying schizophrenic illness but rather brief periods of stress induced psychosis in a man with a very vulnerable psychological make up.
Professor Carroll notes that as alcohol abuse is clearly a significant contributor to your behaviour and was on this occasion, now that now you are in custody clearly that difficulty has been taken out of the equation. As such, while you do suffer the effects of your other cognitive deficits in custody which makes your time difficult, you do not have the added difficulty of alcohol abuse and as such your other issues are manageable and have not deteriorated. Professor Carroll also notes that you currently have access to good quality mental health care in the facility you are being housed at in Ravenhall.
Sentencing considerations
I take into account your plea of guilty which in the circumstances may be considered a plea at the earliest opportunity. You did initially seek the opinion of Professor Carroll in relation to whether a mental impairment defence existed. As a consequence the resolution of the matter was delayed. However, once the matter was resolved in relation to your mental impairment, a plea of guilty was entered.
Your plea of guilty is of course evidence of your acceptance of responsibility, has avoided the time and expense of a trial and most importantly has avoided the need for the witnesses to give evidence and relive the events. As such your plea of guilty has facilitated the course of justice.
In giving your account of the event to Professor Carroll you were frank with him in explaining your involvement in the offence. While you maintain that you thought you were under threat, you stated that there was no excuse for what you did, that you regret your actions and that you ‘don’t want to hurt anyone anymore’. While I accept that you are beginning to gain some insight into your conduct, it is clear that you have some way to go and as noted by Professor Carroll, it seems you still maintain some feelings of animosity towards the victim which remains unexplained.
It is clear that in this case protection of the community is a paramount sentencing consideration together with specific deterrence and denunciation of your conduct.
As to general deterrence, in my view taking into account the combination of your various disorders which were operative at the time, there is some scope to apply Verdins principles thereby moderating to some degree the weight given to general deterrence. However what seems to be a large contributor to your behaviour on this particular evening is your significant intoxication and abuse of alcohol. As was noted by Professor Carroll: ‘obviously, his already significant problems with threat perception and self-control would have been acutely exacerbated by his state of intoxication’. You have struggled with this for some time and therefore would have some understanding of your behaviour when you are under the influence of alcohol.
Specific deterrence is also able to be moderated to some degree however your criminal history has escalated in recent years and has included amongst other offences, threats to inflict serious injury, assault, carrying a dangerous article in public and damage to property. I was told that these offences also involved the abuse of alcohol. In my view despite your intellectual capacity, you do have some appreciation of the way you behave when affected by alcohol and you must be deterred from that behaviour.
As to your prospects of rehabilitation, it is clear that you require support and supervision given the disorders that you suffer. That said, it would seem if you can eliminate alcohol from your life permanently then your prospects of rehabilitation will greatly improve. I accept that you have genuine and difficult hurdles to overcome as a result of your autism spectrum disorder and intellectual deficits, however while you are dealing with managing those difficulties in my view your prospects of rehabilitation remain guarded.
Sentence
Joel Warner, in relation to Charge 1 on the indictment, intentionally causing serious injury, you are convicted and sentenced to 5 years and 6 months imprisonment.
In relation to Charge 2, resist emergency worker on duty, you are convicted and sentenced to 10 months imprisonment.
In relation to summary Charge 3, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment.
I direct that 2 months of the sentence on Charge 2 be cumulative on Charge 1. That makes for a total effective sentence of 5 years and 8 months imprisonment.
I direct that you serve a period of 4 years imprisonment before becoming eligible for parole.
Pursuant to s.18 of the Sentencing Act 1991, I declare that 365 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 7 years imprisonment with a non-parole period of 5 years.
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