Director of Public Prosecutions v Webb
[2023] VCC 355
•14 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Shepparton CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00680
Indictment No. L10463828.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN THOMAS WEBB |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 8 February 2023 | |
DATE OF SENTENCE: | 14 March 2023 | |
CASE MAY BE CITED AS: | DPP v Webb | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 355 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Causing serious injury recklessly – Serious example of offence – Victim known to the offender – Use of sharp weapon – Life-threatening injuries caused – Offender has no memory of the offending conduct – Early plea of guilty – Severely disadvantaged childhood – Alcohol and drug abuse – Intellectual disability – Verdin’s principles 5 engaged – Reduced moral culpability – Problematic prospects of rehabilitation – Extensive prior criminal history
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269 – Muldrock v The Queen (2011) 244 CLR 120 – Jawahiri v The Queen [2021] VSCA 287 – Ejupi v The Queen [2014] VSCA 2 – R v McKee (2003) 138 A Crim R 88 – Bugmy v The Queen (2013) 249 CLR 57 – DPP v Herrmann [2021] VSCA 160
Sentence: 4 years’ and 4 months’ imprisonment – Non-parole period 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D R Cordy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Barrera | Stary Norton Halphen Lawyers |
HIS HONOUR:
1Justin Thomas Webb, you have pleaded guilty to one charge of causing serious injury recklessly.[1] The maximum penalty for this offence is 15 years’ imprisonment.[2]
[1] Contrary to Crimes Act 1958 s 17.
[2] Pursuant to Crimes Act 1958 s 17.
The Facts
2The prosecution filed a Summary of Prosecution Opening for Plea dated 19 December 2022,[3] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[3] Exhibit (‘Ex’) P1.
Overview
3You were born in November 1976 and at the time of committing this offence you were 43 years old.
4The victim, Michael Murphy, was born in November 1968 and at the time of the offending he was 51 years old.
5At the time of the offence, you and the victim were living together at your residence in Poplar Avenue, Shepparton. The offence occurred on 22 February 2020 at that address.
The offending
6The assault spread across a number of rooms in the residence with blood covering numerous surfaces and destruction was spread throughout the house. The assault involved at least one blunt force object and at least one sharp edged object.
7The Crown do not allege that any weapons used by you during the offending were taken into the premises. Rather, they were objects readily to hand which you used as improvised weapons.
8During the assault, the victim received the following injuries:
(a) swelling and lacerations to the face and neck;
(b) small cuts and lacerations to his limbs;
(c) a fractured skull;
(d) a fractured nose;
(e) two bleeds to the brain;
(f) acute rib fractures to the left ribs;
(g) a laceration to the pancreas, liver and in three places in his aorta; and
(h) fractures to the cricoid and thyroid cartilages in the neck.
9The assault concluded with the victim lying unconscious in the laundry of the residence in a pool of blood.
10A number of neighbours reported hearing loud noises coming from the premises throughout 22 February 2020.
11At around 7.20pm, a neighbour heard two men yelling at each other. He could make out the words, ‘You fucking idiot’, to which another person responded, ‘Who are you calling a fucking idiot?’.
12At around 7.00pm, a neighbour saw you running in and out of your home. Apparently, you had splatters of blood on your face, neck, chest area, arms and hands. According to the neighbour, you had enough blood on you that your shirt appeared red. The neighbour saw you from a bedroom window appearing to hide something under a doona on the bed. Shortly after this observation, you came out of your home and said, ‘I’ve just woken up and my friend’s in a pool of blood.’ The neighbour then entered the unit with you and saw a great deal of property was broken, and the unit was in a chaotic state. A TV was smashed and there was a knife with a plastic handle lying on the floor near the TV. The neighbour saw blood everywhere.
13As you entered the property with the neighbour you took off your blood-soaked shirt. The neighbour saw blood in the kitchen and then looked around the corner to where you were pointing towards the victim, who was lying face down in the laundry in a pool of blood.
14The neighbour initially thought the victim was dead, but then saw him lift his head about a centimetre from the ground and gurgle. The neighbour screamed, ‘Someone call an ambulance now! He’s still alive.’ The neighbour found she was unable to cope with the scene that confronted her and said, ‘I can’t do this.’ She then left the scene.
15At about 7.00pm, you spoke to another neighbour and said, ‘I need someone to come with me that has a phone. I’ve just woken up and me mate’s near dead.’ The neighbour reported you looked as though you had just had a shower and you smelled like soap. This neighbour fetched another neighbour, who called 000.
16At this point, you returned to the premises followed by a number of neighbours who observed blood in the kitchen extending into the lounge room. You then left the premises.
17At one stage, you were observed by a neighbour ‘curled up in a ball, sulking in his driveway’. You were ‘rocking backwards and forwards’.
Aftermath and investigation
18Police and ambulance attended sometime shortly after 8.00pm. Three police officers and paramedics entered the house and observed the victim lying in a prone position in the laundry area. He was observed to have extensive head injuries. The victim was moved to the lounge room and was provided with medical treatment. He had a laceration above his left eye, a laceration on the back of his head, puncture wounds to his chest, scratches on his neck, chin and stomach. The victim’s clothing was removed to enable treatment. The clothing was then seized by police who took photographs of the victim’s injuries.
19You told police you woke up and found the victim lying on the floor in the laundry area unconscious and surrounded by blood. Whilst you appeared to be wearing clean clothing, you did have blood on your face. You told police the victim had aspirated blood on your face when you attempted to move him.
20You told police you and the victim were the only people present at the premises during the day and you ‘had no recollection of earlier in the day’.
21At 9.00pm, the victim was transported by air ambulance to the Royal Melbourne Hospital (‘RMH’) for medical treatment.
22You were taken by police to the Shepparton police station where you were arrested. You suffered an epileptic fit whilst at the police station and you were transported to the Goulburn Valley Hospital in Shepparton. At the hospital, police observed scratch marks to the left side of your face, blood on the top of your head and grazing to your forehead and right knee. These injuries were photographed by police.
23The following day, 23 February 2020, police attended the scene of the assault and found the house in a dishevelled state. The kitchen and dining room areas had numerous knives lying on the ground covered in blood. Electrical appliances were smashed. Chairs were knocked over. A television was smashed. A kitchen window was broken from the inside and there were blood splatters on the walls.
24In the kitchen, police located a mophead covered in blood. In the toilet next to the laundry, blood smears were observed on the wall and cleaning products were located in the vicinity of those smears. A number of photographs were taken of the scene.
25I have viewed a large number of photographs taken by police,[4] both on the night of the offending and also the next day. They depict a chaotic scene inside the premises of overturned furniture and broken household items, but the most remarkable feature of the scene depicted in the photographs is the large volume of blood to be seen on the kitchen floor, walls, benchtops, cupboards and other surfaces. On any view, this was a very violent attack on the victim.
[4] In two folders comprising Ex P3.
The victim’s injuries
26The victim underwent numerous surgical procedures including surgery to remove part of his skull.
27On 25 February 2020, Dr Stephanie Carlson from the Victorian Institute of Forensic Medicine (‘VIFM’) attended the RMH and conducted an external examination of the victim’s injuries.[5] The injuries she documented are summarised above.[6]
[5] Her statement apparently made on 25 March 2020 is Ex P2.
[6] See above para [8].
28Dr Maaike Moller, a forensic medical officer with VIFM, reviewed the forensic materials, including the photographs taken by Dr Carlson, and opined as follows:
(a) the distribution of the victim’s injuries suggest that an assault is the likely cause of his injuries;
(b) the pattern injuries were suggestive of the use of an implement or object;
(c) the superficial injuries to the arm, cheek and shoulder were caused by an edged patterned object;
(d) the injuries on the outer arm were caused by a sharp object with blunt aspects;
(e) the incised injuries to the head were caused by a sharp edged object such as a knife.
29In Dr Moller’s opinion, at the point at which the victim was transported to hospital he was hypothermic and deeply unconscious. Dr Moller was of the opinion that were it not for timely medical intervention the victim would likely have died. Accordingly, it was accepted by your counsel that the injuries sustained by the victim at your hands were life-threatening injuries. I also observe that they are substantial and, in all likelihood, protracted.
30The victim was treated at the RMH until 24 March 2020, when he was transferred to the Royal Talbot Rehabilitation Facility for treatment relating to an acquired brain injury.
Record of interview and further investigation
31You were interviewed by police on 23 February 2020 and made the following statements:
(a) you live at 33 Poplar Avenue in Shepparton (Q17);
(b) you woke up and found your partner in a pool of blood (Q44);
(c) you tried to turn him over and he spat in your face (Q44);
(d) you then ran next door and got them to ring the ambulance (Q44);
(e) your partner’s name is Michael Murphy, but he was more of a friend Qs70–71);
(f) Mr Murphy tried to have sex with you, but you did not want to, and you said that you were not ‘into men’ (Qs73-76);
(g) Mr Murphy does not live at the address but was visiting the day before (Q82);
(h) you do not remember the day before (Qs93–94);
(i) you have frontal lobe damage that gives you trouble with your memory (Qs97-98);
(j) you remember waking up and yelling out to the victim (Q110);
(k) you found the victim in the laundry face down (Q118);
(l) you then flipped the victim over (Q122);
(m) the victim then spat all over you (Q123);
(n) you had been sleeping in the bed in the main room (Q131);
(o) Michael sleeps in the same bed when he stays (Q136);
(p) you woke up around dusk (Q140);
(q) you do not know if you attacked the victim or someone else did (Q146);
(r) you were taking a large amount of Valium and opiates which knock you out (Qs150–154);
(s) you cannot think of anyone else who stayed at the house in the last couple of days (Q175);
(t) you said, ‘I don’t know if I’ve done it. I don’t know if someone else has done it’ (Q272);
(u) you did not remember when you went to sleep (Q311);
(v) you only sleep two to three hours at a time (Q316);
(w) you said the person who committed the crime ‘might be sitting in front of you. I don’t know’ (Q449);
(x) you did not know how blood got on your clothes (Q697); and
(y) you said, ‘It could’ve been someone else, it could’ve been me’ (Q884).
32Towards the end of February, you had a conversation with a neighbour in which you said you thought it was a dream, and all you could remember was trying to cook the victim’s head in a sandwich press. When the neighbour asked why would you do that, you replied you had become agitated because the victim tried to grab your private parts and you did not like it, and you ‘flipped out’. You told the neighbour that after you tried to ‘cook the fella’s head with a sandwich press’, you jumped in the shower and washed yourself.
33The DNA evidence demonstrates that the vast majority of the blood located at the crime scene was the victim’s.
Victim Impact
34Mr Murphy did not prepare a victim impact statement and no medical reports regarding his current situation have been provided to me.
35Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[7]
[7] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
36According to the statement of Dr Carlsson,[8] Mr Murphy was found by paramedics on the floor of the premises with ‘significant head injuries and unresponsive’. He had a Glasgow Coma Scale of 3, which is extremely low. Dr Carlsson itemised a total of 32 injuries to Mr Murphy’s head and neck, chest and abdomen, both arms and legs. She described him as being ‘seriously ill’ at the time of her examination and he was ‘receiving ongoing care from the Intensive Care team’.
[8] Statement, 25 March 2020 (Ex P2).
37Clearly, Mr Murphy’s injuries were extensive and severe and you admit they were life-threatening. Because of the absence of more recent material, I can make no findings regarding the length of Mr Murphy’s recovery or whether he is suffering any ongoing functional or psychological impairment as a consequence of your attack on him.
Offence Seriousness
38Causing seriously injury recklessly is a serious criminal offence carrying a maximum penalty of 15 years’ imprisonment.[9] This indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence.
[9] Crimes Act 1958 s 17.
39In my opinion, objectively, this is a serious example of the offence. You violently attacked Mr Murphy in your home where he was a guest. You used a sharp weapon or weapons; probably, one or more of the blood-stained knives and/or scissors located at the scene. From the photographs taken of the scene depicting the amount of blood loss Mr Murphy suffered,[10] the extent and nature of his injuries and the contemporaneous observations of neighbours, I infer your attack on Mr Murphy was extremely violent and to some extent prolonged. Nonetheless, I cannot find it was premeditated or planned.
[10] See Ex P3.
40Your counsel conceded this is a ‘serious example’ of the offence and it ‘falls towards the upper end of seriousness for offences of this type’.[11] I agree with this characterisation of your offending conduct.
[11] ‘Outline of Sentencing Submissions on behalf of Justin Webb’ dated 6 February 2023 [56], [64] (‘Defence submissions’) (Ex D1).
41In my opinion, your offending conduct involved a high degree of recklessness. Moreover, the severity of Mr Murphy’s injuries and their life-threatening nature, adds to the seriousness of this offence.
42Your conduct is bizarre, and you appear to have no memory of the attack itself and very little memory of the events leading up to it or its immediate aftermath. This is a very concerning aspect of your offending conduct.
43Your counsel submitted you were ‘struggling with [your] mental health in the months leading up to the offending.’[12] Your were placed on an assessment order and admitted to a psychiatric unit on 2 October 2019 after presenting to a hospital emergency department with auditory and visual hallucinations. You were discharged on 7 October and were homeless for many months, until a month prior to the attack on Mr Murphy when you occupied the premises where the offence was committed. These were supported accommodation provided to you by the Salvation Army.
[12] Defence submissions, ‘Context of offending’ [1].
44You told Dr Fiona Best, a psychiatrist engaged by you legal representatives:
Michael was a good friend of mine, he was infatuated by me, he came up and brought drugs with him and we used some and before the assault he tried to make a move on me and grabbed me on the genitals and I assaulted him pretty bad and I ran next door and phoned an ambulance, I was not thinking straight because you don’t even need credit on your phone to call, I was in shock.[13]
You reported to Dr Best you had been using methylamphetamine at the time of the offending and continued:
After being awake for a day or two, lack of sleep and hallucinating, I was definitely tired, my judgement and at the time I was fretting, I was scared, scared of him, of what he was trying to do to me, I asked him to leave and he just wouldn’t do that.[14]
[13] ‘Psychiatric Report – Justin Webb’, dated 10 January 2023 (‘Best Report’) (Ex D2) p 11.
[14] Ibid.
45You concluded by telling Dr Best the alleged offending occurred in the setting of mental exhaustion and being drug affected and you reported the illicit drug use at the time resulted in you being more impulsive and this meant you were not thinking clearly.[15]
[15] Ibid p 12.
46Recklessly causing serious injury using a weapon is an inherently grave offence.[16] As Maxwell P observed in Ashdown v The Queen:[17] ‘Ordinarily … the use of a weapon will mean that the offence is more serious, since it heightens both the probability of serious injury and the degree of seriousness of the probable injury.’[18]
[16] DPP v McKay [2018] VSCA 292 [13] (Beach and Hargrave JJA and Almond AJA).
[17] (2011) 37 VR 341 (‘Ashdown’).
[18] Ibid 348 [19] (Maxwell P) citing Ashe v The Queen [2010] VSCA 119 [27] (Neave and Redlich JJA and Coghlan AJA). See also Ejupi v The Queen [2014] VSCA 2 [28] (Priest JA, Coghlan JA agreeing) (‘Ejupi’).
47The fact the weapon used was a knife or other sharp object further increases the relative seriousness.[19] In Ejupi v The Queen,[20] the Victorian Court of Appeal said:
This Court has often remarked on the dangerousness of knives, given the obvious risk in their use of damage to a victim’s internal organs and blood supply and thus to life. Those who would venture forth with a knife anticipating its use to inflict injury, and those who would use knives foreseeably to inflict serious injury, need to be deterred from so doing.[21]
[19] See Ejupi [28], citing Ashdown 348 [19].
[20] [2014] VSCA 2.
[21] Ibid [36] (citation omitted) citing Ashdown 348–49 [19]–[20]. See also DPP v McKay [2018] VSCA 292 [13] (Beach and Hargrave JJA and Almond AJA).
48In all the circumstances, I consider, that but for the effect of your intellectual disability (discussed below),[22] your moral culpability would be very high and general deterrence, denunciation and just punishment would need to be given considerable weight in my instinctive synthesis.
[22] See below paras [59], [82]–[84], [86]–[87].
Personal Circumstances
49Your counsel briefly summarised your personal circumstances. You are currently aged 46, and were 43 years of age at the time of committing this offence. You are Aboriginal and identify with the Yorta Yorta nation.
50You were widowed in March 2010 after your partner was murdered while you were incarcerated in respect of previous offending. A copy newspaper article relating to this terrible crime which appeared in The Age newspaper on 23 November 2011 was tendered on the plea.[23]
[23] Ex D7.
51You have four children from this relationship aged 23, 21, 17 and 15 years respectively. The children’s maternal grandmother cares for them.
52You re-partnered briefly in 2019, and you have a three-year-old child from this relationship with whom you have no contact.
53You worked briefly in early adulthood, but have mostly supported yourself with a disability support pension, which ceased in 2009 after you were incarcerated for a period longer than two years. At the time of the offending, you were supporting yourself on Newstart Centrelink benefits.
54You are currently remanded in custody in Fulham Correctional Centre. In custody, you have been employed as a COVID-19 cleaner and you also sell Aboriginal artwork as part of the TORCH Program.
55Your mother remains supportive of you.
56Your counsel submitted that you have a history of polysubstance abuse which is confirmed by the psychiatric, psychological and neuropsychological reports tended on the plea.[24]
[24] See Exs D2, D3, D4 and D5.
57A number of psychiatric and psychological reports were tendered on the plea. These comprised a psychiatric report by Dr Fiona Best, dated 10 January 2023;[25] neuropsychological report by Ms Leanne Kennedy, dated 3 May 2021;[26] psychiatric report by Dr Fiona Best, dated 9 December 2020;[27] psychological report by Mr Warren Simmons, dated 13 July 2020;[28] and a five-page extract from Goulburn Valley Health medical records.[29]
[25] Ex D2.
[26] Ex D3.
[27] Ex D4.
[28] Ex D5.
[29] Ex D6.
58I have had regard to all of the psychiatric and psychological material exhibited on the plea. Ultimately, your counsel properly accepted that the psychiatric and neuropsychological material does not rise to the level of establishing that there is direct causal connection between your cognitive deficits, mental health conditions and the offending conduct.[30]
[30] See Further Defence submissions on behalf of Justin Webb dated 17 February 2023 (Ex D10).
59Nonetheless, I accept your counsel’s submission that your intellectual disability (you were assessed as having a borderline intellectual disability with a full scale IQ of 77)[31] does have an effect on my assessment of your moral culpability. As the High Court of Australia observed in Muldrock v The Queen,[32] a question about causal relationship:
is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[33]
[31] See neuropsychological report of Leanne Kennedy (Ex D3) [40] (‘Kennedy Reort’).
[32] (2011) 244 CLR 120.
[33] Ibid 139 [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)..
60Your counsel referred me to Jawahiri v The Queen,[34] which also involved an offence of recklessly causing serious injury, on the relevance of the continuing effects of profound social disadvantage. I have applied the principles stated there[35] in sentencing you for this offence. In particular, I have had regard to the Court’s admonition that: ‘The effects of profound childhood disadvantage endure and must be given their full weight in every sentencing exercise’.[36]
[34] [2021] VSCA 287.
[35] Ibid [73].
[36] Ibid [73(u)] (Priest and Forrest JJA) (original emphasis)..
Prior Criminal History
61You have a significant prior criminal history commencing in March 1994 when you were aged 17.
62Significantly, four years later you appeared at the Seymour Magistrates’ Court on a number of charges including three charges of burglary, three charges of theft, two charges of theft of a motor vehicle and charges relating to criminal damage. On all those charges you were convicted and placed on a Community Correction Order (‘CCO’) for 18 months to perform 200 hours of unpaid community work. You breached that CCO and were dealt with on the breach proceedings in March 1999, when you were convicted and fined $2,300.
63Earlier in 1999, you appeared before the Seymour Magistrates’ Court on three charges of burglary and three charges of theft, for which you received an aggregate sentence of imprisonment for one month wholly suspended for 24 months. Later in 1999, you received a sentence of three days’ imprisonment for street offences and an unlawful assault.
64In February 2000, you were before the Melbourne Magistrates’ Court on a number of motor traffic offences for which you were sentenced to an aggregate period of two months’ imprisonment wholly suspended for 12 months.
65You were fined in 2001 for using indecent language in a public place.
66In 2002, you were before the Seymour Magistrates’ Court on a theft charge and convicted and ordered to serve a 12-month CCO to perform 50 hours of unpaid community work and to undergo certain program conditions.
67You then appeared at the Broadmeadows Magistrates’ Court in December 2006 on charges of recklessly causing injury, aggravated assault of a female, assault police (2 charges), threat to destroy property and two other offences. You received a six-month sentence of imprisonment wholly suspended for 12 months.
68Particularly concerning is your appearance before this Court on 2 August 2010, when you were convicted on indictment of armed robbery, three charges of robbery, recklessly causing serious injury and intentionally causing injury. You were sentenced to eight years’ imprisonment with a non-parole period of five years and six months. Four hundred and fifty nine days were declared as pre-sentence detention.
69I have read the reasons for sentence of his Honour Judge Taft (as he then was).[37] At paragraph 19, his Honour observed that you told police that ‘when I’m drinkin’ and on Xanax, it doesn’t take much to press my buttons.’ At paragraph 24, his Honour commented: ‘Of great concern is qualitative escalation of your previous patterns of offending represented by the matters before this Court.’ At paragraph 26, his Honour observed: ‘There was a suggestion that your volatility and aggression are related to your combining Xanax with alcohol.’
[37] DPP v Webb & Cusack [2010] VCC 1000 (‘Judge Taft Reasons’) .
70At paragraph 27, his Honour referred to a report tendered by your counsel at the plea by Mr Michael Crewdson, a forensic psychologist.[38] His Honour observed: ‘It is apparent from the content of Mr Crewdson’s report, which is not disputed, that your uncontrollable, irrational and violent rage has also occurred within a domestic setting.’ His Honour quoted from Mr Crewdson’s report as follows:
The essential problem is that later when disinhibited he tends to ‘explode’. This may be related to poor impulse control as in a domestic situation. However, it might also be related to joining in to a more general antisocial expression of underlying anger and emotional frustration.
[38] This report was not available to me.
71His Honour referred to Mr Crewdson’s opinion that: ‘You have reasonable prospects for rehabilitation provided that you can stay away from the use of drugs.’[39]
[39] Judge Taft Reasons [31].
72At paragraph 32, his Honour concluded, somewhat prophetically in my view, as follows:
This Court can have little confidence that you will cease using drugs. Past performance is usually the best indicator of future promise. Your past performance is lamentable. I am very far from persuaded that positive sentiments expressed in a prison environment will translate into reality within the community.
73It is clear from the matters put before Judge Taft back in August 2010, you were aware then of the fact that when you combined alcohol and Xanax you were likely to become violent. I note that in the present case drugs contributed to the commission of the offence.
74It is also clear that since 2010, when you were sentenced by Judge Taft, you have been unable to quit your drug addictions and consequently his Honour’s assessment of your prospects for rehabilitation, sadly, have proved to be accurate.
75Later in August 2010, you appeared before the Melbourne Magistrates’ Court on a number of charges including possess cannabis, intentionally causing injury, recklessly causing injury, two charges of intentionally damage property, resist police and act in a disruptive manner in a police gaol. You received a total effective sentence of 12 months’ imprisonment, six months of which was made cumulative on the sentence you were then undergoing.
76I am informed by the Sentence Calculation and Warrant Administration branch of Corrections Victoria you were released on parole in respect of Judge Taft’s sentence on 15 April 2015. Your parole was subsequently cancelled and on 26 May 2016 you were recalled to serve the remaining sentence for 528 days. You were finally released on 4 November 2017.[40]
[40] See email dated 9 March 2023 (Ex D11).
77Finally, you had a number of appearances before courts in 2018 and 2019, including theft from shop and committing indictable offences whilst on bail. You received a 12-month CCO and fines.
Mitigating Circumstances
78You pleaded guilty to the present charge following a sentence indication hearing conducted on 17 May 2022. I accept that, given the charge was downgraded from intentionally causing serious injury to recklessly causing serious injury, and your general lack of memory of the events leading up to your offending conduct, it was reasonable for you to conduct a contested committal hearing and case conference and sentence indication hearing in this Court. Accordingly, whilst yours is not the earliest plea, it is nonetheless a forensically early plea,[41] and I take this into account in your favour.
[41] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
79Your plea has utilitarian benefit, particularly in the COVID‑19 environment,[42] and you have saved the victim the trauma of giving evidence both at the committal hearing and in this Court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[42] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
80While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[43]
[43] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
81I also accept you have been in custody for over 1,000 days and, given much of this time has been spent in COVID‑19 conditions, this has meant that the time you have spent in custody to date has been more onerous on you than it otherwise would have been.[44] I also accept you will experience a greater level of custodial hardship as a result of COVID‑19 restrictions which apply to all prisoners in this State for the foreseeable future.
[44] See eg The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
82You have a significant intellectual disability in the borderline intellectually disabled range, with a full-scale IQ of 77. I accept the offending conduct was somewhat connected with your intellectual disability, in that generally this has made you unable to properly cope with life. However, clearly the use by you of illicit drugs also played a considerable role in the lead-up to the offending. Nonetheless, I accept the principles stated in Muldrock v The Queen[45] apply in your case. I also accept there is a link between your intellectual disability and the chaotic nature of your life at the relevant time.
[45] (2011) 244 CLR 120.
83Ms Kennedy, a neuropsychologist who produced a report dated 3 March 2021 for your legal representatives, opines:
His level of thinking and reasoning is unsophisticated and with poor planning and organization ability he has not been able to or has not had the motivation to forge a different lifestyle that could avoid criminal charges.[46]
[46] Kennedy Report [76].
84I also note Dr Best’s opinion that at the time of the offending it is highly likely that your cognitive challenges, combined with substance abuse, had lowered your frustration tolerance and impulse control, and that this impacted on your ability to think clearly, exercise good judgment, and act rationally. Dr Best noted that the supporting documentation available to her made reference to your pattern of:
impulsivity, angry outbursts, and difficulty managing his emotions (combined with drug-induced psychosis) when he is intoxicated with substances. These issues began in childhood and have continued into adulthood.
85Dr Best observed the impact of substance abuse at an early age, combined with your underlying cognitive vulnerabilities, would have had a negative impact on your adolescent maturing brain.
86Your counsel, in his further submissions dated 17 February 2023,[47] conceded that the material relating to your psychiatric and neuropsychological conditions did not rise to the level of establishing that there is a direct causal connection between your cognitive deficits and the offending. However, he relied on what the High Court said in Muldrock v The Queen[48] that your intellectual disability nonetheless lessened your moral culpability and also leads to the need to sensibly moderate general deterrence, denunciation, and just punishment in your case.[49]
[47] Ex D10.
[48] (2011) 244 CLR 120.
[49] Ibid [54].
87I am satisfied that your life has been seriously adversely affected by your intellectual disability, which has no doubt contributed to you falling into the abyss of alcohol and drug abuse which has led to you engaging in extreme risk-taking behaviour while using illicit substances. Accordingly, your moral culpability is reduced and the full measure of denunciation, general deterrence and just punishment must be moderated having regard to your intellectual deficits.
88I also accept that you come from a socially disadvantaged background, which engages the principles discussed by the High Court of Australia in Bugmy v The Queen.[50]
[50] (2013) 249 CLR 571.
89You commenced consuming cannabis and alcohol between the ages of 11 and 12. You engaged in petrol-sniffing between the ages of 12 and 13. You commenced using amphetamines at the age of 18.
90Given your intellectual disability, the extent to which your decision to experiment with these drugs was freely made is called into question, and, as the Victorian Court of Appeal observed in R v McKee,[51] this bears upon your moral culpability, given you have committed this crime as a consequence of addiction to drugs, which itself may well be the result of your relatively low level of intellectual functioning. This is supported in your case by Dr Best’s opinion that:
The impact of substance abuse at an early age combined with his underlying cognitive vulnerabilities would have had a negative impact on his adolescent maturing brain.
[51] (2003) 138 A Crim R 88, 92 [13] (Buchanan JA, Eames JJA agreeing), 93–4 [20]–[21] (Vincent JA).
91Moreover, Ms Kennedy observed that:
Commencement of drinking alcohol and using cannabis from the young age of 12 years would interfere with brain development. During the teenage years and beyond the frontal structures of the brain are still developing. These areas are involved in executive function, including abstract thinking, planning and organization.[52]
[52] Kennedy Report [63].
92Accordingly, I accept your counsel’s submissions that you suffered three forms of significant disadvantage in childhood:
(a) cognitive deficits;
(b) early exposure to drugs and alcohol that was not at an age of ‘rational choice’ that would give rise to the full responsibility for the moral culpability and the predictable consequences of a choice to become addicted;[53] and
(c) a lack of educational stability in your early life. I note that you attended eight different schools between primary and secondary education, and you only completed Year 10.
[53] See Kelly v The Queen [2016] NSWCCA 246.
93Whilst your level of disadvantage does not rise to the level of physical or sexual violence suffered in your formative years, nonetheless it is clear you had numerous challenges as a child and young adult which have no doubt fed into your criminal lifestyle and the circumstances surrounding your commission of a number of offences, including the present offence.
94As the Victorian Court of Appeal observed in DPP v Herrmann:[54]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[55]
[54] [2021] VSCA 160.
[55] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA.
95These complex factors must also feed into the weight I give to specific deterrence in your case, because you are a person who is obviously not easily specifically deterred because of your social disadvantage and intellectual disability. Nonetheless, I will have to give some weight to specific deterrence if only to encourage you, upon release from custody, to abstain from the abuse of illicit drugs.
96Moreover, as I earlier observed, these personal factors result in me considering your moral culpability to be less serious than what it might otherwise be assessed to have been. I will also moderate the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you.
97I accept that in your case Verdins[56] principle 5 is engaged by reason of your relatively low level of intellectual functioning. I accept that because of this, the burden of imprisonment would weigh more heavily on you than a prisoner who does not suffer from your intellectual disability.
[56] See R v Verdins (2007) 16 VR 269, 276 [32.5] (Maxwell P, Buchanan and Vincent JJA).
98So far as the application of the totality principle is concerned in your case, your counsel advised me you have served a total sentence of five month’s imprisonment for unrelated offending whilst remanded for the present offence. This time cannot be declared as pre-sentence detention in respect of the sentence I will impose upon you. Accordingly, I have moderated the sentence I would otherwise have imposed on you to allow, in effect, for a measure of concurrency between the five month sentence you have served while on remand for this offence and this sentence.[57]
[57] See R v Mangelen (2009) 23 VR 692, 697 [28] (Redlich JA, Ashley JA agreeing); Mohamed v The Queen [2022] VSCA 136 [55] (Maxwell P, Emerton and Sifris JJA).
Application of Sentencing Principles
99I have had regard to current sentencing practice in relation to the charge of recklessly causing serious injury as informed by the decisions of the High Court of Australia in R v Kilic[58] and DPP (Vic) v Dalgliesh (a Pseudonym)[59] and the Victorian Court of Appeal decisions in DPP v Zhuang[60] and DPP (Cth) v Thomas.[61] In particular, I have considered the Victorian Court of Appeal decision in Jawahiri v The Queen.[62] I have also had regard to the cases to which I was referred by defence counsel.[63]
[58] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[59] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[60] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[61] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[62] [2021] VSCA 287 (Priest and T Forest JJA).
[63] See Ex D8. The cases are: Singh v The Queen [2021] VSCA 345 (Maxwell P, Emerton and Sifris JJA); DPP v Akok [2021] VCC 722 (Judge Hannebery); DPP v McKay [2018] VSCA 292 (Beach, Hargrave JJA and Almond AJA) and Al Wahame v The Queen [2018] VSCA 4 (Whelan and Kyrou JJA).
100While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[64]
[64] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
101Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of recklessly causing serious injury and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
102The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the effect of your offence on the victim and your personal circumstances.
103I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
104Denunciation, general deterrence and just punishment, sensibly moderated by reason of the matters I have previously referred to, must nonetheless be given real weight in sentencing you for this offence. Moreover, I consider some weight needs be given to specific deterrence and protection of the community, given the nature of your offending conduct, your prior criminal history and the risk of your reoffending, especially if you return to the abuse of illicit drugs upon your release from custody.
105I assess your prospects for rehabilitation as being problematic. Much will depend on the support you receive upon your release from custody and on you remaining drug free.
106The parsimony principle requires I not impose a sentence that involves your confinement unless I consider the purpose or purposes for which this sentence is imposed cannot be achieved by a sentence that does not involve your confinement. Clearly, your offending requires the imposition of the sentence of imprisonment with a non-parole period. You counsel appropriately conceded this was the case.[65]
[65] See Sentencing Act s 5(4).
107After balancing all relevant sentencing considerations in your case, I consider a sentence of imprisonment with a non-parole period is the appropriate sentence.
Mr Webb
On the charge of recklessly causing serious injury you are convicted and sentenced to be imprisoned for four years and four months.
I order you serve a minimum of three year’s imprisonment before being eligible for parole.
I declare 1050 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to six years’ imprisonment with a minimum non-parole period of four years and six months.
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