Director of Public Prosecutions v Weber

[2016] VCC 1012

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00668

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES WEBER

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2016
DATE OF SENTENCE:	15 July 2016
CASE MAY BE CITED AS:	DPP v Weber
MEDIUM NEUTRAL CITATION:	[2016] VCC 1012

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Mr M. Page	Victoria Legal Aid

HIS HONOUR:

1Would you stand up please, Mr Weber?  I am going to try and keep it simple and I do not mean in any way to be offensive to you in saying that, but I do understand that you do have some deficits as a result of being a victim of an assault that has caused significant damage to you.  I will say a little more about that at the appropriate time.  Take a seat and I will tell you when to stand.

2Mr Weber, you have pleaded guilty to one count of intentionally causing serious injury.  You have heard the learned prosecutor, Ms Burnett, tell this court that the maximum sentence that can be imposed for this offence is that of 20 years' imprisonment.  That substantial term should indicate to you that this is indeed a very serious offence.

3Twenty years as a maximum is fixed by the Parliament, not by police officers or prison officers or barristers or solicitors, by the Parliament.  For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

4The victim, Robert Wilson, then resided at Flat 1/4 Leith Crescent, Hampton East at this time.  At the time this offence was committed you were living at
Flat 1 Besant Street, Hampton East, where you resided with your girlfriend, Naomi Purcell, also known as Naomi Knowles.

5I pause there for a moment.  Whilst they are two separate addresses in Hampton East they are very close to one another, virtually around the corner, if I can put it like that.  You, Mr Weber, are also known by the nickname of "Goldie".

6I quote directly from the Ms Burnett's summary, and it read this, "On Saturday 23 February 2013 at approximately 7.30 pm Mr Wilson was working in the garden outside his flat.  At that time the weather was warm and it was still daylight".  As you well know it is summertime, it is summer and it is daylight saving time, so it is obviously in the height of summer.

7"Given the heat Mr Wilson sat down on his front steps and had a few beers to relax.  Whilst he was sitting on the front steps of the flat he saw a small, dark coloured puppy running loose near the front of his premises".  Mr Weber, you approached Mr Wilson and asked him what he was doing with your dog.

8You began abusing him.  Wilson described your demeanour as aggressive. 
Mr Wilson walked off to get away from you and he did not see where you went after you left the area.  Mr Wilson did not personally know you.  He knew you only as "Goldie" and he had seen you in the area of the flats previously.  That is why I made the comment that your flats, whilst not in the same street, are very nearby.

9Wilson returned to his flat to obtain a glass of beer and he again went out onto the grassed area to the south east side of the building where he lay down on the grass relaxing.  Without provocation you, Mr Weber, returned to the area of Mr Wilson's flat and attacked him.

10According to Mr Wilson he only saw you coming toward him moments before he was struck, giving him little or no time to react.  You then pinned Mr Wilson down and began punching him with both fists to the head and face.  Mr Wilson attempted to cover his face with his hands.  As Mr Wilson was attempting to raise you off him you ran back and began kicking him to the body.

11Wilson was still lying on his back with his arms and hands covering his face.  Mr Weber, you only stopped your assault on Wilson when Ms Knowles intervened.  Ms Knowles and yourself then returned to your flat.  Mr Wilson was bleeding from facial injuries and was dazed.  He lay on the grass until he could get up and he then went to a nearby flat and the occupants asked him if he required an ambulance.

12Wilson told them that he would be all right and he returned to his flat.  Soon after returning to his flat Wilson's condition deteriorated and with the assistance of the other residents of the nearby flats an ambulance was called.  Mr Wilson was conveyed to the Alfred Hospital where he was admitted to the intensive care unit in a serious condition.

13He was diagnosed with intra-abdominal bleeding, a mesenteric laceration with an arterial bleed, a devascularised small bowel, which means the bowel is not provided with blood, bilateral facial fractures and two fractures to the left little finger.

14Mr Wilson underwent emergency surgery to remove a small section of his bowel and repair the arterial bleeding.  Wilson, having been admitted to the Alfred Hospital on 24 February, was finally discharged on 14 March in need of continuing outpatient care.

15Another doctor unrelated to the Alfred Hospital but related to the forensic science laboratory down in South Melbourne, Dr Jason Schreiber, a forensic physician attached to the Victorian Institute of Forensic Medicine, assessed the severity of Wilson's injuries.  He said - that is Dr Schreiber - said this, "The injuries occurred as a result of the application of blunt force trauma to the head and abdomen.  That carries significant risk of fatal injuries to structures such as the brain, eyes and essential abdominal organs.

16Two, the victim's injury required open abdominal surgery.  That is an intervention with substantial inherent risks of complications".  I will try and simplify that in simple terms.  As soon as there is invasive surgery where the body is opened up and repairs are done there is greater blood loss, there is the repaired wound showing stiches and things of that nature, that are all at risk of course of some sort of infection developing.

17Mr Wilson required long-term wound care, so Dr Schreiber says, and complications such as infection and wound re-opening did occur.  That made it more complicated for the victim, Wilson.  That is my comment.

18Mr Wilson could only have a soft diet for weeks.  The combination of sustained injuries and Mr Wilson's previous medical history rendered the life-endangering potential high.  That means that Wilson was not in good shape health wise prior to the assault and that made him more at risk of suffering very real and dangerous life threatening injuries.

19Mr Wilson lost substantial amounts of blood and fluid.  He required three litres of blood transfusions and five litres of fluid infusion to survive.  In Dr Schreiber's opinion there was no doubt that without treatment in hospital Mr Wilson would have likely died.

20On 13 March 2013 investigating police officers attended at 4/1 Versant Street, Hampton.  That was your address at that time.  The police officer seized a dark coloured puppy on that date.  I infer that is the puppy that was cavorting around Mr Wilson when he was in his garden.  Apparently that puppy was, in terms of ownership rights, owned by another authority.

21I will not go into that any further because I do not think there is much point in that.  Eight months later you were arrested and formally interviewed.  At that time you denied the allegations put to you.  Indeed you said the allegations were false.  You further said that you were not known as "Goldie".  I pause there for a moment.  Obviously now you plead guilty and do admit to the offences as distinct from what you said to the police officers back when they first interviewed you.

22Mr Weber, you have seen the neuropsychologist, Rachel O'Meara.  She is with an organisation known as Jacksons, highly probably a company of some description, but Rachel O'Meara, a neuropsychologist, provided two reports, one dated 11 February 2016 and one dated 2 May 2016, which was at or about the time that your plea was made before this court.

23Both of these reports extensively cover your personal psychological history.  I propose to exhibit both reports to these sentencing comments.  Mr Weber, in her report Ms O'Meara at length reports on your personal life, particularly your drug and alcohol abuse and further the incidents of you suffering traumatic brain injury often relating to assaultative behaviour.

24I quote briefly from the second report of O'Meara.  That is the one dated 2 May 2016.  O'Meara said this, and I read directly from her report.  She said this, "Mr Weber's cognitive profile which was primarily characterised by deficits in attention, speed of processing and executive functioning, which had a secondary impact on him learning, was considered to be highly consistent with a traumatic brain injury as a result of the alleged assault in 2013."

25The evidence of encphalomalacia on reviewing neuroimaging in late 2013 provided further support for this opinion.  In addition a number of other factors were considered to be potentially contributing to the cognitive deficits apparent on testing, including abuse of illicit and prescribed substances from a young age, and over an extended period of time, additional head strikes with loss of consciousness and longstanding an ongoing issues with mood and anxiety.

26Nevertheless, this traumatic brain injury was considered to be the primary factor underlying the cognitive deficits.  These deficits were considered highly likely to be permanent, giving that the assessment was conducted more than two years post injury.  She is saying there she has tested you two years or more after the injury that you suffered not long after this event, that is involving Mr Wilson.

27You have heard your counsel, Mr Page, raise the issue of law that emerges from Verdins' case, a case that is frequently quoted in this court.  Ms O'Meara says, and I quote - she says this, "The Verdins principles will have limited application to the matter in which the informant is Westhead, given that the offending was committed prior to Mr Weber sustaining the traumatic brain injury.  While he may have experienced some cognitive deficits at the time of the offending as a result of his history of substance abuse, psychological issues and previous head strikes with loss of consciousness, it is not possible to determine the likelihood of the presence, nature or severity of such deficits based on the results of the current assessment."

28That is all very sophisticated but it means this.  You have definitely got deficits now that come from the traumatic brain injury that happened after the offence against Mr Wilson.  It is possible, it might be even probable, that you had deficits before, but O'Meara, the neuropsychologist, is not in a position to comment.

29Ms O'Meara quoted Westhead as the informant that was under the review by her and Westhead is the informant in the Wilson matter, so there is no doubt about that.  Detective Westhead is the informant in this intentionally cause serious injury case, and whilst your offending was on this occasion on 23 February, this date pre-dates the latest trauma or brain damage that has occurred to you, as we have said on a number of occasions.

30Mr Weber, you have an extensive criminal history.  If I may make this observation, it is an inference I draw from the extensive criminal history, but I have no doubt that it is indicative of the problems you have had in your relatively young life that arise from alcohol and drug abuse problems, not to then go further as O'Meara did to say and add to those alcohol and drug problems to the assault of his behaviour where you have been the victim of being punched no doubt and losing consciousness that she referred to.

31You have also experienced the horrific - whilst I am not going to go into your personal history because it is all there and all will be on the file because it is exhibited, but I do comment that I am sure the loss of by way of suicide of what I will call your stepbrother or foster brother, whatever status, you know who I am speaking of, I am sure that that experience must attract considerable grief for you and would be difficult for any person to manage because it was a spectacular way for one to take one's life, and very, very distressing.

32All I can say to you in relation to that is I recognise it has happened, I am sure that it has had some effect upon you, but I implore you or urge you when being counselled by whoever the counsellors are whether for alcohol or be it to avoid further re-offending, that you discuss it with them because it is often called grief counselling.

33You need to get it out on the table so that you can be assisted to manage an horrific experience in a relatively young life.  I also assure you that I have taken into account all that has been said on your behalf by Mr Page.  I take into account that you have pleaded guilty and it can be said that that is perhaps indicative of remorse on your behalf for having done what you have done.

34Again Mr Page, on your behalf, expresses remorse and sorrow for behaving as you did on this occasion.  It is obviously from the revelations made by you to Pastuovic that you do admit to taking some form of drugs.  Maybe they were prescribed, Xanax, et cetera.  Maybe they were illicit.

35Furthermore, you will recall the victim impact statement that was produced by the victim, Mr Wilson.  All I can say to put it very simply is it now turns out that these injuries suffered by this man have had an absolutely profound effect upon him.  It would seem from what he says in the victim impact statement that he can no longer ever work again.  He can no longer work as a forklift driver.

36I assume or infer that, that perhaps was a position that he occupied in the past.  He also had the experience because he was in and out of hospital and in and out of aftercare from the hospital and he could not return to New Zealand to attend a family funeral, not to mention all of the various and significant injuries he had to cope with and all of the procedures that he had to follow as a result of this drunken or stupid assault committed by you in the daze of drug abuse.

37I return to Dr O'Meara's report.  That is the one of 2 May.  I said I was not going to quote at length, I was going to exhibit the whole thing to the file, but I think it important that I say this.  O'Meara says, and I read directly, "Mr Weber's prospects of rehabilitation in terms of his offending behaviour are likely to be closely related to his ability to abstain from licit and illicit substance abuse and to avoid peers that may have a negative impact on you."

38I pause there for a moment.  You might have heard Ms Burnett, the prosecutor, just say that the prosecution have concerns about your peer group leading you astray.  The prosecution have got concerns about your lady friend because she has got her own problems, and for you to return to her company may well be that you are returning to the den of thieves, one might say.

39I will just read that again and I will not then go off on a tangent.  "Mr Weber's prospect of rehabilitation in terms of his offending behaviour are likely to be closely related to your ability to abstain from illicit and licit substance abuse and to avoid peers that may have a negative impact on him, given his increased vulnerability to being influenced by others as a result of his executive dysfunction."

40That means because of the traumatic brain injury it is harder for you to control what is happening in your life.  "Encouragingly he reported abstaining from most illicit substance use for a number of years prior to the current assessment and recognised the association between his abuse of prescription medication which was commenced following the 2013 assault and current offending.

41"He reported being highly motivated to refrain from re-offending.  In order to remain closely involved in his son's life and described a stable and supportive home environment and a desire to participate and work as appropriate for his level of functioning, two widely recognised protective factors against
re-offending."  That is a comment made by O'Meara.

42You know yourself that you have got a good relationship with a previous union and there is a child from that union that you apparently manage well and you are anxious to return to Ms Knowles because of a son that was born to each of you.  But that has the rider, if you like, of Ms Burnett's concern that she, Knowles, has her own problems and it may not be to your benefit to go back there.  That is going to take some management, I can assure you.

43As you know the Office of Corrections has also prepared a very informative report, but it is totally consistent with what O'Meara writes in the two reports that she has done.  As I said, Ms O'Meara goes into quite some depth as to your family background and your personal history.  That is all recorded there and will be part of the sentencing remarks because I am exhibiting them to these sentencing remarks.

44Ms Pastuovic says this, "Mr Weber is a 29-year-old male who presents with a criminal history dating back to the age of 15.  He engaged well throughout the interview and it appeared he was trying to recall and provide the most accurate information possible.  However he reported that his acquired brain injury prevented him from doing so.

45Some information Mr Weber did provide contradicted information provided in supporting documentation.  So he is not consistent with the written report or the written record."  That may relate to your brain injury - may.  "Mr Weber appears to have stable accommodation residing with his partner and child.  It is however a concern that Mr Weber's partner is often his co-offender and he will be returning to the same environment that he was in at the time that this offending had taken place.

46It is noted that Mr Weber expressed a significant change in behaviour since the suicide of his brother which occurred after these offences.  It is concerning that Mr Weber failed to acknowledge and advise that he has outstanding alleged offending which occurred in 2015 due to be heard in the Melbourne Magistrates' Court on 9 August 2016."

47I pause there for a moment.  You have heard Ms Burnett and Mr Page speaking about it this morning and that is yet to be dealt with in the Magistrates' Court and Mr Page is acting on your behalf in that place.

48Ms Pastuovic goes on to say, "Given the information detailed Mr Weber's non-compliance with past community based dispositions Mr Weber is found suitable with hesitation."  What she is saying there is you have had community corrections before and to put it bluntly, you have stuffed up, but now you are saying that you are willing to have a real red hot go.

49Ms Pastuovic goes on to say, "Due to Mr Weber's past non-compliance with orders it is recommended that a judicial monitoring condition be considered to assist with compliance with further order and judicial oversight."  I understand what the lady has said there.  It is a thing that judges now sometimes do, they judicially monitor orders that they have made.

50Because I am a reserve judge and I am not about as regularly as others I do not usually order that, but I do make this comment; you are going to be subject to the supervision of a corrections officer.  I see no reason why they cannot supervise you and if you are not behaving correctly you will be brought back before me at some later time.

51What you have got to understand, and I am re-emphasising what Ms Burnett has said, the prosecution, the Director of Public Prosecutions says because of the serious nature of this offending in terms of the ultimate result to Mr Wilson calls for a substantial sentence.

52What I am concerned about and what I am wrestling with is the cold hard fact that you must be given a moderated sentence in relation to what otherwise been imposed upon you because of your traumatic brain injury that you suffer.

53I recognise in saying that that happened after the commission of this offence.  You might recall I said earlier that the neuropsychologist, Ms O'Meara, was not able to positively say whether or not Verdins might have been available to you at the time the offending was committed, but certainly afterwards, yes.

54So I do take the principles of Verdins into account and I can indicate to you that I have modified substantially what otherwise I would have done because of your traumatic brain injury that is a reality.

55Taking all of that into account you will be convicted and sentenced to be imprisoned for a period of 23 months. Pursuant to s.18 of the Sentencing Act you are to be given credit for having served 281 days of imprisonment.  Furthermore, you are to be released on a community corrections order.  Once released from custody you must report to the Office of Corrections, and I propose to impose the recommended - I will explain these to you in a minute.  I will just read them into the record and then explain them.

56You are, pursuant to s.48D, to undergo treatment and rehabilitation if necessary for drug abuse and dependency.  So you will be assessed.  If they say you need further treatment then you must undergo that treatment.  If you do not you are in breach, and if you are in breach you can be brought back before the court and then another prison term is highly likely.

57Pursuant to 48D(3)(b) you are also to undergo assessment and treatment if required for alcohol abuse.  So once again you will be assessed as to whether or not you need further treatment for alcohol abuse.  If you do you must undergo that treatment.  If you are given a clean ticket and you do not need any further assessment then that is the end of it.

58If you fail to comply you are in breach.  Do you understand that?

59ACCUSED:  Yes, Your Honour.

60HIS HONOUR:  Pursuant to s.48D(3)(e) any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.  So you must undergo whatever treatment psychologists or neuropsychologist recommend on your behalf.

61Corrections, if they have not got - and I think they have - but if they have not got, they most certainly will have, O'Meara's two reports to assist them.  You must comply with all of those directions to assist you in terms of your traumatic brain injury.

62Last but not least, as to programs, you are to undergo any program that addresses factors related to your behaviour so as to prevent you committing further offences in the future.  I sometimes put it to people such as yourself you are really taught in those counselling sessions how to count to ten.

63When I say that is instead of getting involved in whatever the mischief is that is at foot you can withdraw, count to ten and not be involved.  It is an over-simplification, but I am sure you know what I am talking about.  Furthermore, that you will be subject to the supervision pursuant to s.48E of the Act of a corrections officer.

64Because of your acquired brain injury I do not usually make these orders for a period of 18 months, but on this occasion I will because of your significant health problem.  If you breach any of those conditions you will be brought back.  Do you understand that?

65ACCUSED:  Yes, Your Honour.

66HIS HONOUR:  Just so you understand I have not made a work component in that corrections because I think in a sense it is double dipping in this sense.  You are being punished by being in prison and you are at risk of being in prison again if you breach.  So there is no penalty provision within that community corrections order.

67Pursuant to s.464ZF an order will be made.  Pursuant to s.6AAA I believe had it not been for his cognitive deficits which are substantial and have got to be substantial, he would have been imprisoned for at least five years with a minimum of four.

68MR PAGE:  May I be excused, Your Honour?

69HIS HONOUR:  Thank you, Mr Page.  I will speak with Mr Weber for a moment just to explain what I am about to do for 464.  He is required in another court.  That is what he is rushing off for.  There is one other matter that I have not said to you that I am bound to tell you and I am not quite sure why because you are consenting.

70464 means you have got to supply a forensic sample and that is usually done by a buccal swab, which is a piece of cotton wool on the end of a little stick that they swirl around in your mouth.  If you resist reasonable force can be used to take that.  When one is consenting I do not know why I have got to say that, but the legislation says I must say it, so I have told you.  Do you understand that?

71ACCUSED:  Yes, Your Honour.

72HIS HONOUR:  Thank you.  You have got to sign the form.  If you will take Mr Weber down, but for goodness sake he must not go back to wherever because he has got to sign the form, but we have been hamstrung by the computer that is refusing to work.  As soon as it works the form will be printed out and one of my staff will come down and bring it down for Mr Weber to sign.

73You have got to sign that community corrections order.  It will not work at present because it has just shut down, spat the dummy, he says.  So one of my staff will come and see you shortly.  Once that is done you are free to leave this building but not free to go.  But the prison officer will explain that to you.  Thank you.

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