Director of Public Prosecutions v Weatherburn
[2022] VCC 1440
•30 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01702
K11491264
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES WEATHERBURN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2022 | |
DATE OF SENTENCE: | 30 August 2022 | |
CASE MAY BE CITED AS: | DPP v Weatherburn | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1440 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally causing serious injury in circumstances of gross violence. Sustained attack spanning a period of 18 minutes. Kicks; punches, brain bleeds and multiple facial fractures. 7 days in ICU, 21 days in induced coma. 46 years old; some criminal history; guilty plea. Delay; COVID-19. R v Verdins [2007] VSCA 102 (“Verdins”)
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Teo | Office of Public Prosecutions |
| For the Accused | Mr C. Hooper (at Plea) Ms A. Valos (at Sentence) | Ann Valos Criminal Lawyers |
HIS HONOUR:
1James Weatherburn, you have pleaded guilty to one charge of intentionally causing serious injury in circumstances of gross violence.
2You are now 46 years of age and you have some criminal history before the courts.
3You have been in custody since your arrest on the day of the offence back on
10 June 2019.4The offence of intentionally causing serious injury in circumstances of gross violence is an inherently serious offence with a maximum penalty of 20 years' imprisonment.
5Additionally, it is one of those offences where Parliament has enacted some provisions which are designed to make not just prison, but a sizeable prison term, very difficult to avoid. There are very few exceptions provided for. Unless a special reason exists under those provisions, there is a mandatory minimum non-parole period of no less than four years' imprisonment. It is also what is described as a category 1 offence. I will say more about these provisions later in my reasons as your counsel argued that two special reasons applied here.
Facts
6Mr Teo appeared to prosecute on the plea and he relied upon the summary of prosecution opening dated 27 July 2022. There was a typographical error as to the date on that document. It was dated 2021 but should have been dated 2022. That document was marked as Exhibit A. It was read aloud in open court.
7Mr Hooper who appeared for you on the plea told me it was an agreed statement.
8I see no need then to set out the full sentencing facts in these, my reasons. I will sentence pursuant to that agreed summary. There is also CCTV footage of the incident. The summary describes your acts. The CCTV actually captures them. That footage was marked as Exhibit B. There are a number of camera angles capturing your acts.
9
By way only of a very brief summary then, at some time after 5 am on
10 June 2019, you fell into step with a woman named Piper Weatherman and a man named Gavin Evertsen. This was in the Dandenong area. You began to walk towards the Salvation Army and it was there that you approached your hapless victim, which Mr Zelko Danilovic. He was slightly older than you, I gleaned from the medical material, born in 1972. He had walked around the corner away from the Salvation Army donation bins and you followed him. You walked closely behind him and grabbed his belongings. You punched, slapped and kicked him and threw one of his bags at his head. He tried to walk away from you.
10He showed no signs of aggression. He just wanted to get away from you but you would have none of that. You followed him and pushed him from behind. He tumbled to the ground. He never got up from that point. You then unleashed a serious assault upon him. Punching and grabbing and pushing and generally monstering him. You slammed his head into the concrete multiple times. There was no resistance or movement away from you. You kicked him to the face and he was rendered unconscious.
11Over a sustained period, you continued to brutally assault him. Kicks, punches, body crunches, strikes with an object and stompings. This full array of violent behaviour was on display including powerful kicks to the head. He was helpless and had been quickly reduced to that incapacitated state and remarkably, the attack continued. It was at no stage a fight. It was a prolonged and barbaric assault upon someone who was incapacitated. Someone who from the very outset was obviously trying to avoid any confrontation.
12The assault involved you taking breaks from time to time and then resuming your attack. At one point when it appeared your victim had regained consciousness and was trying to lift his head off the ground, you stepped in and kicked him to the head, again seemingly causing him to lose consciousness.
13Ms Weatherman, the female who had been with you at one point, walked around the corner from the Salvation Army, and observed you deliver running kicks to the head of the bleeding victim who was on the ground. She told you to stop. You told her to walk away. She called out to her friend and again, you told them to leave.
14The assault spanned the period of 18 minutes from 5.41 am to 5.58 am or thereabouts.
15I have viewed the footage. It is disturbing to think that anyone would or could treat another human in the way that you did, and yet you did.
16You continued this assault even after the protests by Ms Weatherman. You then stopped and left the scene and caught up with Ms Weatherman and Mr Evertsen and said 'I've fucking killed him'. In fact you had not, but that was a matter of pure luck.
17You walked off leaving your seriously unwell victim lying on the ground in what was a dark car park. As the footage discloses, he was alone in that state, lying pretty much motionless on the ground for the next 25 minutes.
18You told your offsiders that you had done what you had done as the victim was a paedophile. I hasten to add there is not one jot of evidence of that fact at all.
19It is obvious from the footage that you were affected by either drugs or alcohol. Your counsel seemed to argue that this could not be established from the footage whilst at the same time conceding that you were indeed significantly affected by drugs and alcohol at the time of the acts. Well the footage is very clear on this point as you wobble and stagger at certain points. The impact of drug and alcohol use is not mitigatory.
20Luckily Ms Weatherman, the female who had challenged you about your conduct spoke discreetly to a stranger that she came upon in the street, this was Mr Bruce, and asked him to ring emergency services and come to the aid of the person who had been assaulted around the corner. As a matter of luck that is what he did, having walked to the location identified by Ms Weatherman and at which point he found the victim.
21Paramedics arrived at 6.46 am, so this is over three-quarters of an hour after you had just walked off and left your victim motionless on the ground. He was in that same state when they arrived.
22The summary sets out some of the injuries and the treatment required. I do not see any need to set this all out in my reasons. He was initially at the Alfred Hospital with seven days in the intensive care unit and then 21 days in an induced coma. There were brain bleeds in various locations and multiple fractures and soft tissue injuries. The various injuries including the brain injuries were treated conservatively without invasive surgical intervention.
23This crime took place, as I say, on 10 June 2019.
24There was a transfer to the Caulfield Hospital on 18 July but then a readmission about a month later following a fall out at Caulfield.
25Now your victim had sustained an acquired brain injury from an incident in 2017 and also from a later one, it would seem in mid-August of 2019, so there was evidently difficulty pointing to any long term exacerbation arising from the injuries that you caused. He was admitted to the Caulfield Hospital acquired brain injury unit for eight months and since his discharge, he has remained in 24-hour care in a variety of units.
26So, long term cognitive impacts and residual issues connected to brain injury are not relied upon here. They cannot be sheeted home to you and I must not sentence you for causing them. See paragraph 29 of the opening.
27The various injuries caused in this attack though are relied upon in combination as endangering his life. This they certainly did. The startling feature here is the extent to which you continued to attack a completely defenceless man. He was incapacitated and obviously so from very early on and yet you continued the brutal attack. That is the feature of gross violence relied upon, namely continuing to injure him after he was incapacitated.
28It was a matter of good fortune for your victim and hence for you, that your victim survived this attack. Luckily he did survive and so I am dealing with you for the serious offence of intentionally causing serious injury in circumstances of gross violence.
29You were arrested later on the day of the crime and made a no comment interview with the police. That is not in any way a matter in aggravation. It was your right to adopt that stance.
30The case against you was an overwhelming one with the footage, the eye witness accounts, the admissions and the DNA evidence.
31So much then for what is merely my short summary of the summary. I sentence pursuant to the more detailed agreed written statement dated 27 July which is marked as Exhibit A. Also of course, the footage. The agreed summary also has a chronology attached. There were some corrections to that chronology made in the running. The 19 December 2019 entry related to an adjournment of the committal not the actual committal.
32I raised some issues myself as to the chronology and the stage of the plea and an earlier rejected plea offer, as well as the matters raised in the defence response which had been filed on your behalf. I did that so that your counsel could address me on those matters. This in a setting where there were submissions being made to the court as to the stage of the plea, the presence of remorse and the mitigatory effect of delay in this case.
33There were some photographs within the depositions showing your victim's state in hospital. No one saw the need for them to be marked as exhibits as they were part of the deposition material.
Impact
34There is no victim impact statement here. I do not need one. This was a dreadful attack with obvious serious immediate impacts. Your victim was hospitalised in a serious condition. He was in ICU for seven days. He was intubated. He had a feeding tube as well. He was in an induced coma for 21 days and of course, was still in hospital on 18 July when transferred to another hospital for rehabilitation. I do not factor in any long-term cognitive impacts in accordance with paragraph 29 of the opening.
In Mitigation
35Mr Hooper conducted the thorough plea on your behalf. He had filed some written plea submissions dated 19 August 2022 which were marked as Exhibit 1. There were other written materials. These included a report from a Clinical Psychologist Ms Alison Mynard, a letter from you, as well as a letter from your parents and your current partner Ms Smyth. There were letters from Caraniche and a range of other course completion documents, not to mention some clean drug screens.
36Mr Hooper placed before the court some detail as to your personal and family background including your educational, employment and drug history. That was mainly by reference to the background detail which was set out in Ms Mynard's report. He made submissions about your prospects of rehabilitation and also some submissions as to your motivation for committing the offence, as well as the relative gravity of the offence and the weight to be given to the various purposes of sentencing in this case.
37He relied upon the following matters in mitigation:
· Your relatively early guilty plea in the midst of the global pandemic;
· The presence of some remorse to be implied from your guilty plea and the other written materials before me;
· The delay in the matter being finalised;
· The application of some of the principles from the case of Verdins[1] (limbs 1, 2, 3 and 5);
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
· The impacts of COVID-19 upon your custodial experience to date and into the future.
38
I have mentioned briefly already the special provisions within the Sentencing Act which exist in relation to this particular offence. Mr Hooper submitted that
two special reasons came into play here being impaired functioning causally linked to the offence which substantially reduced your culpability. That is the special reason set out in s10A(1)(c)(i). You have the burden of bringing yourself within that exception. Alternatively, he argued that the delay and impact of delay should be treated as a substantial and compelling circumstance that was exceptional and rare. That is the special reason set out in s10A(2)(e).
39Your counsel was correctly conceding the inevitability of a prison sentence and one with a non-parole period. He was however arguing that a non-parole period less than the minimum four-year period set out in s10 might be achieved courtesy of one or other of these special reasons. It was a very ambitious submission.
Prosecution
40Mr Teo, on behalf of the Director of Public Prosecutions, made some brief sentencing submissions. The prosecution queried the extent of your remorse raising the strange way you have described the offending and your victim in your discussions with Ms Mynard. As to delay and the impact of the matter being over your head, they argued you were always facing a substantial term of imprisonment. The Crown took issue with any special reason existing under s10A of the Sentencing Act. As to Verdins, whilst not challenging that there might be some application of limbs 1, 2 and 3 from that case, they took issue with the evidentiary foundation for any weight to be given to limb 5.
41They submitted that whilst there might be some reduction of your culpability, your culpability was not substantially reduced by the mental health conditions spoken of in the report. They argued that the weight given to the Verdins factors would be modest at best owing to the nature of your conditions and the nature of this offending and the involvement of drugs. They challenged the suggestion of any spontaneity in the offending arguing that it really could not truly be characterised as spontaneous in the sense that whilst the meeting was a chance one, from the moment of that meeting you plainly planned to in some way assault this man. Your actions made that very clear.
42There then followed, they said, a serious and sustained attack in a public place causing high level injuries. The protection of the community was a matter of significance here. The Crown did not accept some of Ms Mynard’s conclusions or opinions, amongst them the suggestion of displacing anger for things happening in your life and acting in this way against the victim as a result of that displacement. I will say more about some of Ms Mynard's opinions later in these reasons.
43I should say, I am not bound by the Crown submitting that it would be open for me to find some reduction in culpability or some reduction in the weight afforded to general deterrence. I am not bound by any sentencing submission made by either party.
44Ultimately, I am meant to engage in a rigorous analysis of the Verdins factors and reach my own conclusion.
45The prosecution submitted that this was a serious or 'high end' example of the offence of intentionally causing serious injury in circumstances of gross violence and I do not believe Mr Hooper challenged that description.
Background
46
I turn now to your background but I will do that quite briefly. The details of your background have been placed before me mainly in the expert report of
Ms Mynard. I see no need to rehash that background in my reasons. I accept that background.
47
Briefly stated, you were born in Adelaide in October 1975. You are now
46 years of age. You were the second eldest of four children. You have no memories of your biological father. You lived with your mother and stepfather in a variety of locations around Australia and also in Malaysia, I infer owing to your father's employment within the air force. I was told that the relationship with your stepfather was strained. I must say it does not strike me that you have had the worst background by any stretch of the imagination.
48You were not strong academically and you left school in Year 11. You have worked as a cook in your 20s and 30s and also in the hospitality industry more generally and as a storeman. You have had a pretty patchy employment record it would seem.
49You have had significant and longstanding issues with a number of drugs. You are a father of two children, one son born back in 1995 and a far younger son who is about three years of age.
50You had a long-term relationship with Ms Kylie Haskett and she had serious health issues. You were her carer from 2013 to the time of her death from liver failure in late August of 2018.
51
From that point you stepped up your abuse of drugs and alcohol. See
paragraph 24 of Ms Mynard's report. You used as much ice as you could get your hands on. You began injecting it. You were using at least half a gram a day. You felt lost. Homelessness was an issue.
52You have been assaulted a couple of times, once quite seriously. Those events were 20 odd years ago.
53At one point in the early 2000s you did some inpatient drug rehabilitation at Odyssey House. That was for a very decent period it would seem.
54You have a lengthy enough criminal history though plainly not for offending as serious as this offence. There are also some gaps in that history. There is only a single appearance for violence. Most of the offending is for dishonesty offending. I see no need to conduct an audit of that criminal history in these my reasons. You have been given a number of opportunities by the courts over the years and you have generally not taken them.
55You have been sent to prison on a number of occasions most often as a result of breaching orders which had been designed to avoid that very outcome. So breaching community corrections orders or suspended sentences. You have received one sentence where a non-parole period was fixed. Being imprisoned has evidently not deterred you. Nor have suspended sentences or community corrections orders.
56This offence obviously represents a very serious escalation in offending.
57Now, you do not fall to be sentenced a second time for any of that past offending, nor does it aggravate this offence. But I do have to make judgements as to the need to deter you and to protect the community from you. I have to make judgements as to your future prospects of rehabilitation and plainly your history before the courts is relevant in that regard.
58
You have done some useful courses and programs in custody and you have returned clean drug screens. You have worked in custody as well and those who know you are encouraged by what they see. The letters of your parents and
Ms Smyth are encouraging. So too your own letter.
59I turn then to consider the other matters raised by Mr Hooper.
Guilty plea
60The first of those matters is your guilty plea. The chronology is set out to a degree in the document attached to the opening, it was not the earliest of pleas. You chose to run a contested committal where eyewitnesses were challenged as to their recall. Ms Weatherman was challenged as to her past criminal history before the courts including dishonesty appearances. One really might query the wisdom of that approach but it was undoubtedly your right to conduct a contested committal. It cannot be held against you.
61However, the major charge was always the one that you have ultimately pleaded guilty to. This is not one of those cases where there was a charge of attempted murder impeding the resolution of this matter. You could and really probably should have finalised this matter some years ago in my view. It was your choice and your right to contest the matter.
62Your previous counsel also went about the business of seeking a sentence indication at one-point last year. That struck me as being quite unusual given the binary nature of that procedure at that time and the existence of the special sentencing regime for this offence. The defence response dated 28 April 2021 asserted that you had not caused the injuries alleged, had not done so intentionally and had not done so in circumstances of gross violence. It was a pretty bizarre stance given the footage and the actual physical injuries which undoubtedly had been caused in this incident.
63I do accept there were live issues as to the extent of the residual impact arising from the physical injuries you caused and that ultimately has resolved in your favour. I accept also that there was a change of Counsel, and it seems that once Mr Hooper came into the matter, things moved pretty swiftly towards settlement, as they really should have years before. It is not the earliest of pleas and nor does Mr Hooper suggest that it is. However, many pleas are later, if not far later than yours. Your plea was entered at what I will treat in the circumstances, as an early enough stage and as a result there have been some material savings.
64By pleading guilty you have taken early enough responsibility for your offending. As a result, the time, cost and effort of a trial has been avoided. Witnesses have not been required to give evidence in this court. Your direct victim has not needed to give evidence at all, at any stage.
65You have in these various ways then facilitated the course of justice.
66Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes[2]. There is an ever-growing backlog of cases waiting for a hearing and your case is now not one of them.
[2]Worboyes v The Queen [2021] VSCA 169
67I take these various matters into account in mitigation.
Remorse
68
Your counsel argued that there was some remorse. He relied upon your guilty plea. He pointed also to your letter, the letters of your parents and your partner,
Ms Smyth and references to how you felt about your actions in the expert report. Your discussion of the offending and your victim and the reasons for the assault as recorded by Ms Mynard are hardly fulsome expressions of remorse. Far from it actually.
69There is very little if any remorse on display in that document. In fact you focus quite unduly on what you believed about the victim: see paragraphs 41, 50 and 61. I am certainly not satisfied on the balance of probabilities that there is fulsome remorse in this case. However, I do have your recent letter and also the older letters of your parents and Ms Smyth. I have your early enough guilty plea. I am prepared to find, as your counsel suggests I should, the presence of some remorse in this case and I take that into account in your favour.
Rehabilitation
70I turn to your prospects of rehabilitation.
71It is hard not to be guarded here. You were in your 40s when you committed this most serious crime. So you do not have youth as an excuse or explanation. The crime was pretty breathtaking in its level of violence and you had many opportunities to pause for thought.
72You have a long enough criminal history before the courts and simply have not taken your chances. I note however the complete absence of any matter as serious as this offending and the views expressed by those who know you of is conduct being out of character. The one assault in the criminal history was many years ago and I was told related to being disturbed in the course of a burglary, so that bears no relationship to the matter I am dealing with.
73You have done some very useful things in custody and that is a positive. Not just working there but a range of courses and programs. Your letter demonstrates that you have a level of insight and some real hope for the future.
74You have had serious issues with drugs over a large number of years and that must cast something of a shadow over your future prospects. You have taken some steps in the past to deal with that, for instance the Odyssey House admission.
75It is clear from the references that there is still family support and that you hold some hopes for the future upon your release, as do those who know you best. One would hope that the time you have served in custody to this point, difficult time owing to COVID-19, and the significant time which lies ahead of you in prison, will deter you from offending.
76Having considered all of the material since the day of the plea last week, I find that you have quite reasonable prospects of rehabilitation. This will no doubt be conditional upon abstaining from drug use, illegal drug use, and dealing with some of the mental health issues raised by Ms Mynard. If you continue to use drugs, those prospects will plummet quite dramatically.
COVID-19: Increased burden
77Your counsel argued there was an increased custodial burden upon a prisoner during the global pandemic. I need no convincing of that fact. There is no doubt that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners. Prison has been a more stressful environment for prisoners, whether held under sentence or on remand. Social distancing has not been easy. There has no doubt, been a worry about catching the virus in such a setting. Unlike someone in the community, there is just no level of autonomy at all. There have been no visits and also limited courses for a large portion of the global pandemic.
78You have been held throughout the pandemic. Undoubtedly then, you have felt an increased burden. I was told you had spent hundreds of days in lockdown.
79As to what lies ahead on the pandemic front for prisoners, it is really impossible for anyone to know, and I am not free to guess on that score. The impacts of the virus upon prisoners has been lessening. Visits re-commenced in March of this year. We are clearly not beyond the reach of the virus. There will be lockdowns and quarantines from time to time. It will undoubtably continue to bring about a level of uncertainty in the minds of prisoners. It will, no doubt, add to your prison burden. I take that into account.
80Prisons seem to have lagged a bit behind the community in terms of lifting restrictions. Those whose job it is to run the prisons will be able to reflect on the impact of any past and any ongoing limitations on a case-by-case basis. They would have the power to address any increased burden in your actual case by way of conferring emergency management days upon you. I can not know if that will take place or not, and I make it clear, I do not proceed on the assumption that it will. I just do not know and I cannot speculate about that, I am not allowed to speculate in that area.
81I do take into account that it seems likely that some restrictions and some limitations will continue into the future, at least in the short term. No doubt that will produce some worry, some uncertainty and add to your custodial burden. So I take into account the increased burden posed by the response to COVID-19 in the ways contemplated by your counsel in the submissions he made to me.
Delay
82There was a submission made as to the impact of delay. See paragraph 22 of the written submissions. Now before proceeding further, let me say that generally, it is not a profitable exercise for a judge to conduct an audit as to the reasons for a delay in a matter being finalised before the courts. What is far more important is the impact of any delay and the steps taken to rehabilitate in the period of the delay. It should not be forgotten that even a delay brought about by an offender absconding will not extinguish mitigatory claims.
83Delay in itself though, creates no automatic right to a sentencing discount. There are two limbs to delay as a mitigating factor, the first limb relating to the unfairness of a charge hanging over the head of an offender and the anxiety ensuing, the second limb concerning progress towards rehabilitation in the period of that delay. How these limbs operate in a mitigatory manner will depend upon a variety of reasons including the cause of the delay, the length of it and the consequences of it.
84
Delay is most commonly a mitigating circumstance where the responsibility for the delay does not lie with the offender. Your counsel referred the court to a case of
Arthars[3]as standing for the principle that delay solely attributable to the fact of an offender exercising their right to contest criminal charges, will never be considered the 'fault' of the offender for the purposes of considering the effect of the delay on them and the extent to which delay is mitigatory. That it was of no moment that the delay was in part caused by your electing to contest the charges. See the plea submissions paragraph 22. That submission reproduced what was the last line of paragraph 27 in that decision of Arthars.
85Paragraphs 28-30 of that same decision then clarified and explained that proposition and the extent to which the weight given to the unfairness limb of delay might be affected by the extent to which an accused had control over the length of the delay. I must look at the facts here. Was the delay inordinate or unreasonable? I note it does not have to be to engage these principles but of course the unfairness limb is far more directly engaged in a setting where there had been a delay outside the control of the accused. For instance in a setting where there has been an unduly leisurely approach adopted by the police or by the prosecution agency.
86The delay in this case exists in large part as a result of you or your past counsel's decision to conduct the proceedings in the way that they have been conducted. You were very promptly charged. I note there was a plea offer made in August of 2019 which was rejected by the prosecution who argued that the principal charge was made out. Well, here you are years later affirming that view by your guilty plea. There was a contested committal in October and December of 2020. You were committed to this court and there were many procedural hearings conducted.
87A defence response dated 28 April 2021 was filed on your behalf denying that you had committed the offence. Denying causing serious injury, intention to do so and denying acting in circumstances of gross violence. I understand from your counsel that at one point by way of instructions, you were taking issue with any loss of consciousness being sustained by the victim. Frankly, that was quite bizarre given the footage.
88At one point there was a lengthy period leading into a sentence indication hearing, I mentioned that earlier in these reasons. It is hard to understand what could ever have been achieved in any sentence indication hearing given the provisions mandating prison and the inability at that time on a sentence indication to provide anything other than the binary response which existed prior to the amendments that had been made to the Criminal Procedure Act 2009.
89The matter resolved in April 2022. It could have resolved in 2019 or early 2020 or in 2021. The delay here is not inordinate or undue and is explained by the way the case has been conducted on your behalf. That is just the fact. There were some periods of delay no doubt arising from the pandemic and as I have mentioned, some live issues being pursued and explored as to the residual injuries and whether supervening events or earlier events might have contributed to them.
90I have set out this level of detail as this is not the sort of delay calling for some censure by the court, nor was your counsel suggesting that it was. The delay is perfectly explicable. That is not to say that it has been easy to have the matter over your head. Of course, it has not. Your counsel speaks of the 'profound stress' of having the matter over your head. There is no evidence in support of that proposition at all, none in the expert report which is so heavily relied upon in other areas.
91You have continued to behave yourself in custody. You have worked and you have done appropriate courses and you have stayed out of trouble. In fact the materials before me, suggest that you have been doing pretty well in custody.
92You get the benefits arising from your efforts in the course of this delay. I say benefits, and by that I mean the advantage of the present day judgement I can make as to improved rehabilitative prospects that can be gleaned from your attitude and efforts over the lengthy period of the delay. Delay is not the powerful factor that it sometimes is but I still take it into account. You have put your best foot forward and I do not doubt that it has been hard to have the matter over your head. I just do not accept that there has been profound stress here.
93This is not a setting of you establishing some form of life in the community and waiting for the blow to fall and having no control over when it will. Given the nature of the offence, upon proof of the offence, it was always likely to end in a sizeable prison term. I do not ignore the delay or the mitigatory effect of it. I give each limb some weight, it is just that I do not rate it nearly as highly as your counsel appears to. I am not satisfied on the balance of probabilities that it is a powerful factor in this case.
Verdins
94I turn to the submissions made as to the principles from Verdins. You heard some discussion in the course of the plea about that case. I now deal as best I can with those Verdins submissions that have been made in this case. As I explained at the time of the plea, so that people understood what we were talking about that decision dealt with the impacts upon the sentencing process of impaired mental functioning existing either at the time of offence or at sentence, or both. That is something of a gross simplification but will suffice for present purposes.
95The principles are not dependent upon diagnostic labels. What matters is what the evidence shows about the nature, the extent and the effect of the impairment experienced and how it affected the offender either at the time of offence or how it is likely to impact upon their experience of prison.
96
The first Verdins principle says that if a mentally impaired offender is less morally culpable for their actions, then it may not be appropriate to punish them as harshly as someone who is fully responsible. Well, that makes good sense.
Moral culpability may be reduced if, at the time of the offence, the impairment reduced an offender's ability to exercise appropriate judgement, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct or if it made them disinhibited or even obscured the intent to commit the offence or contributed causally to the commission of the offence. Disinhibition or inappropriate or deficient judgment arising from drug use is all too common but is rarely mitigatory. It is not relied upon in a mitigatory fashion in this case at all and your counsel was explicit in that regard.
97The effect of an impairment on moral culpability will always be a matter of degree. What a court is expected to do is to assess the gravity of the offending and examine the offender's conduct before, during, and after the offending in order to determine the extent of the impairment's contribution, if any, to the offending.
98No causal connection is required but there must be some realistic connection. It is worth noting that if the offence is serious, an offender's culpability may only be reduced to a minor extent even where the impairment is significant. The court is meant to engage in a rigorous examination of the evidence and that will not be limited purely to the evidence set out in an expert's report. There is the summary, there is the footage, there is the conduct, what you have said at the scene, what you have said to Ms Mynard and her expressed opinions.
99I suspect that I could spend the next hour quoting from the report of Ms Mynard and the submissions made by your counsel. I choose not to. My reasons will be long enough as is. I will turn to her opinions in one moment but a pretty simple alternative view of the facts exists in this case. Maybe it would even be the way you might have described, it though nothing particular hangs on that. Your conduct has been analysed and picked apart by Ms Mynard with theories or opinions expressed as to why you so acted. Is there not a much simpler view of it?
100You had felt lost and helpless after the sad death of Kylie, your partner of 10 years. You went off the rails and used drugs and alcohol and engaged in risk taking behaviour. You were angry with the world. You were homeless. You had no support. You had a dislike if not a hatred of paedophiles. You came upon a man you believe, for whatever reason, to be a paedophile. You challenged him. He denied the accusation and you attacked him and went overboard. You were significantly affected and disinhibited by ice and alcohol.
101You would not be the first person labouring under such a belief about another person to attack another, or the first person involved in a physical attack to go overboard whilst disinhibited by ice. It is a terrible drug. As Ms Mynard confirms, it heightens aggression. See paragraph 59.
102
Ms Mynard has seen you on two occasions and of course she relies on your
self-report. She has not viewed the footage which I must say, strikes me as very odd.
103She details the sad decline of Kylie and your helplessness in response to her death at paragraph 18 and 19. Your counsel cites that report and by use of some pretty extravagant and emotional language in his submissions, converts it to the following, 'having invested himself fully he was forced to watch the tide go out on Kylie's life while he stood on the shore.' Ms Mynard's report is cited but of course no such direct statement exists within it. But onto the next paragraph in your counsel's submissions: 'Feeling hopeless, unable to see the meaning in life and without any concrete vision of the future he sought oblivion.' Again this is an emotive summary of what is in the report. I'm not greatly assisted by that style of submission or advocacy.
104Ms Mynard diagnosed a good number of conditions. Six of them. They were:
·Complex post-traumatic stress disorder.
·Complex bereavement disorder (resolving).
·Generalised anxiety disorder.
·Social anxiety disorder.
·Stimulant use disorder; and
·Alcohol use disorder.
[3]Arthars v The Queen [2013] VSCA 258; 39 VR 613
105I note she received from you an account of escalating drug use including injecting ice and using as much as you could, with at least half a gram used each day.
106I do not want to downplay the impact of the sad death of your partner. You had been together for many years and it seems that the last few were very sad as you adopted the role of being her carer. I am prepared to accept that you were devastated by the loss and had a sense of feeling quite lost in the world.
107The diagnosis of complex post-traumatic stress disorder seems to relate principally to two incidents which occurred when you were 19 and in your early 20s and also to aspects of what is said to be the unsatisfactory relationship with your stepfather as a child.
108
In any event Ms Mynard reports that in the aftermath of Kylie's death you were devastated and abusing alcohol and drugs, without supports and angry.
She died in August 2018. She reports that you were angry at Kylie, angry at others, angry at the world. You tried to hide the emotions by as Ms Mynard describes it 'self-medicating’. See paragraph 37.
109Well, let us call it what it was. You were abusing ice and alcohol and unsurprisingly, you report that you became explosive in anger. You would not be the first or the last person to be affected in such a way by ice or ice combined with alcohol. You reported to Ms Mynard 'hearing stories' about the victim. You said you were already like a volcano erupting, that you came across your victim when you were drunk, ice affected and sleep deprived and accused him. He denied the accusations.
110You said that 'you knew different' and you assaulted him. You told Ms Mynard that you knew you were out of control and knew you were going to get into trouble. You told the author that you felt compelled to do something about what the victim had done. See paragraph 49.
111The opinions offered by Ms Mynard are as extravagant as any I have ever seen in a report such as this. She says that you had displaced your anger towards the victim for years of emotional pain and trauma of your own, and Kylie's pain, and your new partner Lil's pain. You had anger towards sex offenders in general and targeted the victim who happened to be in front of you. He was almost a representative entity of those who had caused so much pain to others over the years and who had got away with it. See paragraph 55.
112So anger at losing Kylie, anger at her for not living, anger towards her abusers and those who abused your new partner Lil and this all, it is said, was channelled into the attack upon the victim who had no role in any of that conduct. That the rational part of your brain, Ms Mynard says was shut down. Your underlying vulnerabilities resulted in anger which you took out on the victim. Paragraph 56.
113That the complex post-traumatic stress disorder and complex grief significantly impaired your thought processes, reducing your capacity for basic executive functioning, impairing your reasoning skills and ability to exercise clear judgement. She is of the opinion that you were consumed with your own vulnerabilities and helplessness, identifying with the 'children' you believed had been victimised by your victim.
114She says you were enraged and believed you needed to do something about it. You are reported as saying that you became out of control. In her opinion attacking the victim enabled you to physically fight and be the aggressor and 'win' which was in stark contrast to the many times in life that you were the victim and could not defend yourself.
115As I say, these are extravagant and startling opinions.
116Your counsel in his submission summed it up thus: 'the cumulative weight of his experiences left Mr Weatherburn in a position where at the time of the offending on 10 June 2019, he was heavily drug affected, intoxicated, deprived of sleep, labouring under the weight of multiple and complex mental health conditions and in a highly vulnerable state as a consequence of the complex grief he was experiencing.' See paragraph 10.
117Referring to Ms Mynard, your counsel went on to say of the post-traumatic stress disorder: 'This (the post-traumatic stress disorder) produced in Mr Weatherburn significant difficulties related to emotional dysregulation and significant interpersonal difficulties.’ She also opines that complex grief further impeded his ability to control his emotions, consider the prudence and consequences of his actions and to make reasoned decisions. That in Ms Mynard's view,
Mr Weatherburn in his highly unstable state externalised his grief and anger making the victim a depersonalised effigy for his unresolved trauma. By attacking the victim Mr Weatherburn felt he could strike at what had hitherto been a largely nameless threat and that in her opinion, his ability to make rational decisions was severely impaired and his executive functioning, reasoning skills and consequential thinking were reduced.' See paragraph 12 of the submissions.118Well, these were startling opinions and this was a startling submission to be made to a court.
119Courts are meant to strongly discourage and suppress acts of vigilantism. These opinions and the submissions made are virtually a vigilante’s charter. Your victim did not exist to play some role in your therapy or to make you feel better about the world by you inflicting damage to this 'representative entity', as it is referred to by your counsel. You see, he was not a 'representative entity'. He was a human being and a mighty vulnerable one at that, as you well knew.
120
Importantly, I do note that Ms Mynard went on to say this at paragraph 59:
At the time of the offending, his methylamphetamine intoxication, use of alcohol and sleep deprivation also impacted his actions significantly, in terms of high impulsivity, lack of reasoning and consequential thinking and increased aggression and risk taking.
121Well, I am prepared to find that you had these two conditions, that is the complex post-traumatic stress disorder and grief at the time. As to the role they played if any, in the offending I believe there is a high level of speculation. I do not accept the opinions of Ms Mynard in this regard or the submissions made by your counsel in that respect.
122In fact your counsel agreed it was quite impossible to in any way disentangle the effects as described in that paragraph I have just quoted (paragraph 59) with the contributions if any of the specified conditions relied upon? What role did the illegal drugs have? What role the alcohol? What role the sleep deprivation? What role the combination of those things? What role your suspicion and anger arising from the suspicion? What role the conditions? Well I am not going to guess. I am not satisfied on the balance of probabilities that the two conditions spoken of had any sizeable role at all in this offending.
123You were reacting rationally in the sense that you had a dislike if not a hatred of paedophiles. You thought this man was one. You were significantly affected by drugs and alcohol, you challenged him and received an answer you did not like, a denial, then you attacked him and did so mercilessly. You were angry. You were disinhibited by drugs. You knew that what you were doing was going to get you into trouble. You knew you had lost control. You intended to cause serious injury and achieved that end pretty handsomely here. You walked off and said 'I've killed him'.
124How can any of this be put down to the extravagant theories in that report? I do not accept those opinions and I raised my provisional concerns about them at the time of the plea. I am not satisfied that the conditions spoken of had any sizeable role to play in the offending.
125I am though prepared to accept that you were in a bad way at the time owing to the existence of the complex grief and the post-traumatic stress disorder. However, what contribution did either of these 'conditions' have to this offending? I repeat, what is very plain is that you were very significantly affected by drugs, alcohol and sleep deprivation. The role of disinhibition brought about by drugs is clear here. Ms Mynard comments on that. What about your belief that your victim was a paedophile? That belief was a driver for the offending. So, you had a motivation and the significant disinhibition and heightened aggression brought about by drug use. I am not satisfied on the balance of probabilities that the mental health conditions relied upon had any major role to play in your offending.
126Indeed, it is quite impossible for me to determine to what extent if any those conditions actually contributed. So, I am not satisfied on the balance of probabilities that there is any major contribution such as to significantly lessen your culpability. Plainly alcohol and drugs were a very significant factor in this offending. That and your possessing the view for whatever reason, that your victim was a paedophile. You were totally out of control. You were intoxicated by drugs and alcohol and that sort of thing is not mitigatory. It is very much explanatory of this style of offence. It often is.
Conclusion - Verdins
127So, then my conclusions on the Verdins submissions: I am not satisfied there is any basis to significantly reduce your culpability on the first limb. Nor do the conditions have any large role in terms of the type of sentence to be imposed. Prison is inevitable. Nor is there any basis to greatly reduce the weight given to general deterrence. However, as I am satisfied on the balance of probabilities that you were in a poor or sub-optimum state arising from those two conditions, I am prepared to extend some modest reduction as to your culpability. That is all it is.
128General deterrence is far from eliminated. Again, there can be some modest reduction but it is still a powerful factor. I am not satisfied there is any significantly increased custodial burden arising from these conditions. The report is relied upon in particular paragraph 62 of the report. The bald statement in the first sentence of that paragraph is really not sufficiently explained.
129An expert is meant to descend into detail as to how there will be an increased burden and the description in that which follows is pretty cryptic in that paragraph. I note also the suggestion in other material including your own letter, the letter of your parents, the letter of Ms Smyth and the Caraniche document as to your progress in custody. It does not appear to me that you are doing too badly at all. However, I am prepared to give some modest weight to the fifth limb.
130Even had I been prepared to accept Ms Mynard's opinions as to the reasons for your offending, and of course I am not, they could never have led to any sizeable reduction in moral culpability given the very serious nature of the offending. To put it in a nutshell, 'I'm angry at the world and at paedophiles who never get their just desserts', could never be given much mitigatory weight for obvious reasons especially in the face of such a violent attack as this by a man intent upon causing serious injury.
Special reasons - s10A Sentencing Act
131This is an appropriate time to state my conclusions on the issue of whether or not there is a special reason under s10A of the Sentencing Act 1991. The short answer is that no special reason exists in this case. However, I must explain my findings so that others know why I am doing what I am doing.
132
Before doing so though, might I just say that even establishing a special reason or finding one to exist, would not necessarily lead to a sentence below the mandated minimum non-parole period. It would simply remove the mandate. Crimes of intentionally causing serious injury where there is no mandated
non-parole period are very frequently rewarded with sentences far in excess of the
non-parole period of four years specified for this crime. So much is clear from the examination of current sentencing practice and a number of past sentences that I have looked at.
133Let me turn then to the provisions. I will not set out the provisions in full.
134In the absence of a special reason, I must send you to prison with a non-parole period of no less than four years. That is the effect of s10 of the Sentencing Act.
Special reasons
135Section 10A(2) of the Sentencing Act 1991 provides that a court may find a special reason only in a small number of specified circumstances. Mr Hooper argued that two of those subsections are established here, namely s10A(2)(c)(i) and 10A(2)(e). The first of those provisions, 10A(2)(c)(i), relate to impairment of functioning at the time of the crime, the second, 10A(2)(e) is more of a residual catch all provision dealing with substantial and compelling circumstances which are exceptional and rare. It is notoriously difficult to establish as the Court of Appeal made very plain in the recent case of Buckley[4] as well as in the case of Bowen[5] from last year. There is no burden resting on an accused to bring himself within that exception whereas a burden is cast in relation to s10A(2)(c)(i). See the case of Fariah.[6]
[4]Buckley, Beau v The Queen [2022] VSCA 138
[5]Director of Public Prosecutions v Bowen [2021] VSCA 355; 65 VR 385
[6]Fariah v The Queen [2021] VSCA 213
s10A(2)(c)(i)
136As to s10A(2)(c)(i) the court may make a finding that a special reason exists if the offender proves on the balance of probabilities that subject to s10A(2A), at the time of the commission of the offence, he had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability. The word 'materially' was added to that provision following my decision in an appeal to this court of Haberfield[7] in 2019 but that amendment does not apply to my task.
[7]Director of Public Prosecutions v Haberfield [2019] VCC 2082
137The proviso introduced by s10A(2A) is that this special reason will not be available if the impaired mental functioning was caused solely by self-induced intoxication. Likewise, that provision has also been amended to omit the word 'solely' and insert 'substantially' but again that amendment does not apply to you owing to the offence commission date.
Impairment of mental functioning
138
Section s10A(2)(c)(i) requires proof of impairment of mental functioning. That is defined in s10A(1) and includes a 'mental illness' within the meaning of the
Mental Health Act2014. That definition section in s10(A) would include the conditions referred to in the expert report placed before me. I do not have any doubt about that at all.
10A(2)(c)(i) - Causally connected mental impairment
139What then of the proof that at the time of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and which substantially reduces your culpability? If that is established and if I am satisfied it was not caused solely by self-induced intoxication, that would be a special reason and one then permitting (though not requiring) a non-parole period less than the four-year mandated minimum period.
140Well, I believe in reality I have previewed my findings on this topic when dealing with the Verdins matters a short time ago and I see no need to repeat all that I said then. I do not accept that there was any sizeable or substantial Verdins based reduction in your culpability. In fact, I do not even find there was a true causal connection. That is the end of the matter. I have found only some modest contribution. The conditions do not in my view substantially reduce your culpability for this offence. The fact is one can make allowances for a limb one Verdins reduction in circumstances where it does not rise to the high level posed by the provision in this Statute. It has to be causally linked and it must substantially reduce culpability. Limb 1 of Verdins does not require that threshold to be reached at all. It is not reached here.
141At the end of the day then, I am simply not satisfied that s10A(2)(c)(i) is made out here.
10A(2)(e)
142
Your counsel submitted that alternatively, there was the other special reason established. Namely, that there were substantial and compelling circumstances that are exceptional and rare and that justify the stance urged upon me. That is the exception set up in s10A(2)(e). If not falling within it, I have no option but to imprison you and with a non-parole period of no less than
four years. See s10(1).
143
I must pay attention to the actual words used in the sub-section. They are not there by accident. I must also apply the other provisions of the
Sentencing Act,which give guidance as to the way those words are to be interpreted. I must firstly though consider the actual words used in the provision. The bar is raised very high here, by the words actually employed in the legislation. Not just substantial and compelling, that was a very high bar indeed, as cases interpreting that older provision made clear. See for instance the case of Hudgson[8].
[8]DPP v Hudgson [2016] VSCA 254
144This is a very strict provision with a very high threshold. It is and is designed to be a stringent test. See the case of Farmer[9]. I cannot just ignore those additional words, 'exceptional and rare'. They have been added in to make it even harder to establish. The recent case of Buckley sets out how high this test is. So too Bowen from last year. At paragraph 44 of the decision of Buckley, the Court of Appeal said:
[9]Farmer v The Queen [2020] VSCA 140
‘As we have said, the legislative intention could not be clearer, by adding the words that are 'exceptional and rare', that Parliament intended to make the test almost impossible to satisfy.’
145In determining whether there are substantial and compelling circumstances that are exceptional and rare, I am required to pay greater regard to general deterrence and denunciation than to other sentencing purposes and to give less weight to the personal circumstances of the offender. The court is told not to take into account previous good character other than the absence of prior convictions, not to take into account an early plea of guilty or prospects of rehabilitation. See s10(2B). These are very significant and quite deliberate alterations made to the way in which a Judge would usually perform the sentencing task. That together with s10A(3)(a) signals Parliaments clear intention that for an offence such as this, a non-parole period of no less than the four years should ordinarily be fixed. The cumulative effect of the circumstances must meet that almost impossible threshold and justify a departure from that minimum term see s10(3)(b). See also Buckley.
146Well, in support of this special reason, your counsel pointed to the delay and the impact of the delay upon you. See paragraph 27. I have already spoken of the nature of delay and the reasons for it and my view as to its mitigatory value. I do not believe this comes even close to a special reason. Nor do I even believe there has been any 'profound' impact.
147I do not believe that any of the matters raised on your behalf either individually or in combination rise to that level of being substantial and compelling circumstances which are exceptional and rare. Again I make clear there is no burden on you in this regard. It is just that on an examination of the assembled materials, I am not of the view that there are substantial and compelling circumstances that are exceptional and rare in this case.
148
So there are no special reasons in this case and as such, I must pass a non-parole period of no less than four years. It follows that the theoretical best result for you would be a head sentence of four and a half years with a non-parole period of
four years. It is equally clear to me that a sentence at that level would be hopelessly inadequate given the seriousness of this crime.
149I have looked at a range of cases that look at forms of mandatory minimum periods and the sentencing task in such cases. See for instance, Mammoliti[10], Johns[11] and Esmaili.[12].
[10]Mammoliti v The Queen [2020] VSCA 52
[11]Johns v The Queen [2020] VSCA 135
[12]Esmaili v The Queen [2020] VSCA 63
General
150I turn then to some general matters. I am required to take into account a large range of matters including the maximum penalty and the nature and gravity of the crime. I am required to pay regard to the impact of the crime.
151I am required to take into account current sentencing practices. Current sentencing practices are only one factor amongst many, and they are not a controlling factor here.
152I am dealing with you for intentionally causing serious injury, but with the additional element that it was committed in circumstances of gross violence. This crime has the same maximum penalty as intentionally causing serious injury. That additional element of gross violence attracts the special sentencing provisions that I have discussed at length. The s15A provision does not alter the way that I must assess the offence seriousness.
153There is no sentencing snapshot for the offence of intentionally causing serious injury in circumstances of gross violence. I have looked instead at the Sentencing Advisory Council online data for that offence.
154I have looked also at the Judicial College of Victoria sentencing manual case collection of sentences for this crime. See 4.1.1, 4.1.1.2 and 4.1.2.
155I have looked at the Sentencing Advisory Council Snapshot No. 263 for the crime of intentionally causing serious injury. Sentences imposed for that crime will have some relevance to my task. The case of Nash[13] dealt with that crime and the principles at play including the manner of assessment of gravity of the given offence. I mentioned that case in discussions with counsel over the course of the plea.
[13]Nash v The Queen [2013] VSCA 172 (“Nash”)
156I have also looked at the case of Lukudu[14] and Evans[15] which speak of the importance of general deterrence and the reality of sentences in the high single figures and into double figures for some instances of the crime of intentionally causing serious injury. I note also the observation in Lukudu that sentences have increased for the crime of intentionally causing serious injury. See paragraph 46. I should say, that is reflected in the most recent snapshot for intentionally causing serious injury.
[14]Lukudu v The Queen [2019] VSCA 248
[15]Director of Public Prosecutions v Matthew John Evans [2019] VSCA 239
157In the case of Nash, to which I have referred, Priest JA said that the experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable and therefore the sentences imposed widely vary.[16] He went on to say that there were cases involving protracted savagery while others were constituted by a single punch. There were some involving a variety of weapons. Further, that the injuries widely varied from gross and permanently disabling injuries to others that barely cross the threshold of the definition of serious injury.
[16]Nash v The Queen [2013] VSCA 172 at [55]
158Well surely those same things will apply to an assessment of the gravity of an instance of intentionally causing serious injury in circumstances of gross violence.
159I have mentioned looking at the various statistics but of course I do not lose sight of the fact that statistics have inherent limitations. They say nothing at all about the individual features of any particular case. They are silent as to the many features of aggravation or mitigation which would exist in a given case and which would explain a particular sentencing outcome.
160Other cases, even comparable ones if they can be found, also have significant limitations. They are not precedents to be followed unless somehow distinguishable.
161There is no such thing as one correct sentence and of course what I must do is pass an appropriate sentence in your case. Thankfully, an attack as sustained as yours is a rarity.
162The outcome in your case is not driven by what has happened in other cases, or by what the statistics disclose as to what has most commonly been done in the past.
Purposes
163I have to take into account the various purposes of sentencing.
164Rehabilitation is one such purpose. You have quite reasonable prospects of rehabilitation and of course I do not ignore that fact.
165There are however many other sentencing purposes which must be given appropriate weight.
166Punishment is an important sentencing purpose in this case.
167You must be punished for your crime, justly and proportionately.
168I must also denounce your conduct. Again, that is an important purpose of sentencing for a crime as serious as this one. This was a quite barbaric assault committed upon a helpless victim in a public place. It must be strongly and roundly denounced and I do denounce it.
169Community protection is plainly an important purpose of sentencing here and that is so despite the absence of offences as serious as this in your past history. The very nature of this crime makes that clear. Whilst I have made some allowance for the mental health conditions and some modest reduction in your culpability, those same conditions must be taken into account when considering the weight to give to community protection. As I say, community protection is plainly an important sentencing purpose here.
170Specific deterrence relates to the need to deter you and of course that is also of importance here. You must be deterred from ever offending in the future in this way. You have not taken a number of chances offered to you by the courts over the years. This crime involves a serious escalation. Plainly I must deter you from any future offending.
171This brings me to general deterrence. General deterrence relates to the need to deter other offenders in the future. It looms large in my task. It is an important sentencing purpose in this case notwithstanding the Verdins moderation I have allowed for.
172The courts have a role in deterring other people in the community who might be minded to commit this type of serious offence of violence. The message must be sent loud and clear to likeminded potential offenders that this sort of serious crime of violence will simply not be tolerated and will be met with strong punishment when brought before the court. This crime involved gratuitous violence. There was an aspect of vigilantism in play as well and the courts must discourage and suppress acts such as that.
Gravity
173I have to pay regard to the gravity of the offence before the court. Intentionally causing serious injury in circumstances of gross violence is an inherently serious crime. That is obvious enough. It has a 20-year maximum and unlike the offence of intentionally causing serious injury, it has the mandated prison provisions I have spoken of in the absence of a special reason.
174I have to assess the nature and gravity of this particular instance of the offence.
175I believe this was high level example of the offence. The incapacitated state of your victim and the continuation of the attack is the particular which is relied upon to establish gross violence, but of course, not every case involving this feature will be identical. I must look at the circumstances of the particular offence before me.
176
Firstly I have the complete absence of any real altercation. This was not a fight. You know that. It was a demolition. A punishment. Though this was likely a chance meeting, your victim did everything he could do avoid any confrontation. You followed him around the corner and commenced the attack. You had in your head that he was a paedophile. You had a hatred of paedophiles. You assaulted him and he tried to walk away from you, you followed and pushed him to the ground. The attack then rained down on him and spanned the period of
18 minutes. As I said earlier, you stepped away from time to time and then you stepped back in and continued the attack. It was really quite extraordinary. You had ample opportunity to pause for thought and to consider the gravity of your conduct, then to desist, but of course you chose not to. You continued on with an extremely violent attack.
177There are a variety of circumstances which can be specified as the circumstance of gross violence under s15A. One matter is specified here and it was your continuing to injure an incapacitated victim. That plainly does not foreclose the courts consideration of the actual circumstances of the offence. What it does do is satisfy the element of intentionally causing serious injury with gross violence as one circumstance under s15A(2) is enough.
178There was obviously some planning here. Now I am not talking about some plan to cause him serious injury as might be captured or specified under s15A (2)(a)(i), (ii) or (iii). Plainly it was a chance meeting, so I am not talking of any long term thought processes in play. But it was hardly completely spontaneous given the length of the attack and the fact that it was broken from time to time.
179Your victim was not up for any confrontation. You approached him, assaulted him, followed him, pushed him to the ground. He was quickly rendered helpless and the attack continued. It was a sustained and quite brutal attack. Spanning 18 minutes with violence inflicted upon a person who was helpless almost from the outset, with kicks and punches delivered to vital areas. You had ample time to reflect on what you were doing and to desist and you chose not to.
180The injuries were life threatening. He could have died.
181You just walked off and left him to his fate. He was alone on his back in a dark car park for over 25 minutes. Meanwhile you said to a person you were with that you thought you had killed him. This was a callous and brutal attack with a callous departure leaving him to his fate.
182Serious injury is defined as 'injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted'. The first limb is relied upon here. The injuries you inflicted endangered his life. Your victim spent a sizeable period in an intensive care unit and a longer period in an induced coma and then further time in hospital leading into the transfer to Caulfield.
183I have mentioned already the discussion in the case law as to the large variants of conduct that can make up an instance of intentionally causing serious injury. Those statements from cases including that of Nash clearly have application here. Some serious injuries whether under this provision or under s16 intentionally causing serious injury can be caused by a single punch or blow. Sometimes there might be a case with injuries which just barely meet the definition, or where there is some disconnect between the mechanism and the extent of injury such as when for instance a person is punched and falls and strikes their head.
184That is not what I am dealing with here. This really was a brutal and quite merciless attack. You did not need a weapon, though from time to time you used an object as a weapon, it would seem a phone, to strike your victim. Your fists and boots were very effective weapons when connecting into a helpless victim on the ground. Many of your blows were delivered to his head. The footage shows the movement of his body from the impact when forceful blows were delivered to it. Priest JA mentioned in that case of Nash this concept of 'protracted savagery'. That term very aptly describes your conduct, I can tell you.
185As I said at the outset, it is hard to imagine why anyone would or could engage in conduct as brutal as yours. Yet you did and you fall now to be sentenced for it.
186In the circumstances, I am satisfied beyond reasonable doubt that you intended to cause your victim really serious injuries.
187Judges in this court regrettably see injuries that are more catastrophic than these in terms of their ultimate physical residual impact. So injuries, if you like, with a greater lasting impact. We, as judges see some victims who are reduced to a highly compromised or dependent state, as a result of for instance, a brain injury. Well your victim plainly has significant ongoing issues but they can not be sheeted home to your criminal acts. As sad as his ultimate fate is, I am not able to conclude that you are responsible for that sad fate. See paragraph 29 of the opening.
188We see some unfortunate victims who have sustained other forms of catastrophic injury, for instance a spinal injury and they might be wheelchair bound for life with all of the adjustments that need to be made for a different life which stretches out ahead of them.
189As a result of the way this case has settled, I am not dealing with those sorts of catastrophic long term residual impacts.
190But the serious injuries which I am dealing with were of a very high level in that they could have proved fatal and of course they led to a long enough stay in hospital, as we know.
191The violence and the mechanism of the serious injury was simply extreme. It was savage. It was brutal.
192There are many features of aggravation in this case.
193One can I suppose, always imagine or hypothesize a more serious example of a given crime. There can almost always be a more serious outcome. There can almost always be a more a serious mechanism. That is not the best way to judge the seriousness of the actual crime that is before the court.
194What I have got to do is look at this crime and how it was committed to assess the seriousness of this instance of intentionally causing serious injury in circumstances of gross violence. Viewed objectively, this crime is, in my judgement, a serious example of what is an inherently serious crime. It represents in my view quite grave offending. The extravagance of the violence is disturbing.
195The Court of Appeal in a case of Terrick[17] made clear that the aggravating features common to many of those cases with the high-level sentences imposed for intentionally causing serious injury or even recklessly causing serious injury were;
[17]DPP v Terrick [2009] VSCA 220 (“Terrick”)
·One, where the attack was unprovoked;
·Two, that it continued after the victim had become unconscious;
·Three, that the victim sustained very severe injuries.
196Very fortunately for you and for your victim, as dangerous as his injuries were on the day and the days beyond it has not reached that highest level of injury represented by those catastrophic residual impacts that I have mentioned such as brain injury or paraplegia.
197It is only for that reason that you avoid the imposition of a sentence well into double figures and that is because there are many other features of aggravation that exist in this case. I want to make it plain that had his ultimate residual position that we know about, been sheeted home to your acts, to your crime, this crime would have been elevated up towards the worst category of offending. Of course that is not the position here.
198Clearly there is the inevitability of a sizable term of imprisonment. The legislation sets a minimum non-parole period. That is what it is.
199There has be a gap of at least six months between a head sentence and a non-parole period. It follows that for anyone committing this crime and who does not fall under the exceptions in the legislation, the lowest theoretical sentence would be four and a half years. I am not passing a theoretical sentence. What I have to do is pass an appropriate one. Your culpability was high here. There is only some modest reduction. The objective seriousness is high.
200A crime such as yours demands a sentence well above that figure of four and a half years and a non-parole period well in excess of the mandatory minimum period, which is set at four years.
201At the same time of course, I must strive to avoid a crushing outcome upon you.
202
Given the dimensions of the sentence that I will impose, of course I must fix a
non-parole period. I must not speculate as to whether or not you will be released on parole. That decision will be made by the Adult Parole Board.
203Whether you are so released is a matter for the Adult Parole Board. It has got nothing to do with me.
Sentence
204I am sorry to have taken so long to get to this end destination, which is the destination you want to hear about, the outcome for you. But as I say, I had to explain why I am doing what I am doing and my various findings in a number of areas. So I move now then to pass sentence upon you.
205On Charge 1, that is the charge of intentionally causing serious injury in circumstances of gross violence to Mr Zelko Danilovic on 10 June of 2019, I convict and sentence you to nine years' imprisonment. That is of course, the only sentence and is therefore the total effective sentence in this case.
Non Parole Period
206I fix a period of six and a half years during which you will not be eligible for release on parole.
Section 18 PSD
207You have been in custody already for a period of 1,177 days, you will get credit for that period. That will be noted in the records of the court pursuant to s18 of the Sentencing Act.
6AAA
208I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison for 11 ½ years. I would have fixed a non-parole period in that setting of nine years and that declaration is to be entered into the records of the court.
209Let me just see, I had noted that there was some summary matters that had made their way up to this court, but I think they are summary assaults and maybe as in riotous behaviour, they are all presumably not proceeding in any shape or form, Mr Teo, is that right?
210MR TEO: No, Your Honour.
211HIS HONOUR: So, what do I do, do I simply strike those out or - - - ?
212MR TEO: Yes, Your Honour.
213HIS HONOUR: Strike out those various matters. Let me just see, are there any other matters from your perspective Mr Teo?
214MR TEO: None, from my perspective Your Honour.
215HIS HONOUR: There are no ancillary orders are there in this case?
216MR TEO: No, Your Honour.
217HIS HONOUR: And Ms Valos any matters from your perspective?
218MS VALOS: No, Your Honour.
219HIS HONOUR: All right. Well I will revise this sentence then as soon as I get it back from VGRS and make it available to the parties.
220ASSOCIATE: I have booked this one until 1 pm, just to be safe so you are welcome to it.
221HIS HONOUR: Ms Valos obviously you are going need to have a discussion with your client about what has occurred here today and his rights in relation to it. I am not sure how it’s anticipated that you do that, with counsel or not, but are you wanting to at least use the available link that we have to speak to your client? You will do so in circumstances where it will be you hosting a meeting, we will have no role to play and will not be observing it. Do you want to use that in any shape or form or not?
222MS VALOS: Thank you, Your Honour, yes, Your Honour.
223HIS HONOUR: I will do that then and so, Mr Weatherburn obviously stay put where you are, you will be in a position where you can have a conference with Ms Valos and she'll discuss the matter with you and maybe there will be discussion in due course with your counsel as well. Well that completes the matter then.
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