Director of Public Prosecutions v Webster

[2023] VCC 2032

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR-23-01253

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODY-JAY WEBSTER

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	2 November 2023
CASE MAY BE CITED AS:	DPP v Webster
MEDIUM NEUTRAL CITATION:	[2023] VCC 2032

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. J. Moore
For the Accused	Mr M. Page

HIS HONOUR:

1Brody-Jay Webster, you are to be sentenced for one charge of intentionally causing serious injury and possession of a drug of dependence, cannabis.  The maximum sentences are 20 years' imprisonment for intentionally causing serious injury and in the circumstances here 12 months' imprisonment for possession of a drug of dependence.

2You are also to be sentenced for the summary offences of committing an indictable offence on bail and breach of a family violence intervention order.  The respective maximum sentences are three months and two years' imprisonment.

3You pleaded guilty before me on 26 October.  When arrested and interviewed by police on 14 September 2023 at first you denied seriously injuring
Craig Mckimmie;  however, when pressed, for example, an SMS exchange with your aunt soon after the offence was put to you, you made admissions.  You were distressed.  You stated that you must have stabbed the victim but had no memory of it.

4Committal went by hand-up brief in July 2023 after which you pleaded guilty.  The plea was listed for hearing at the Shepparton County Court circuit on 8 November.  However, you cooperated in the matter and having been brought forward and heard on 26 October.

5At that plea hearing Mr Moore, for the Crown, tendered a written prosecution opening and the victim impact statement of Craig Mckimmie, and today tendered photographs of his stabbing injury.

6Mr Page, for you, provided an outline of plea submissions and made oral submissions.

7The circumstances of offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.

8You are a 24 year old man, 23 at the time of the offending.  You have suffered a hard and dislocated early life.  Part of this has been the drug dependence and mental health condition of your mother, AF.  I accept that in such a context you developed with her a relationship of what might be called mutual dependence and volatility.  You were, although young, protective of her and sensible to what you saw as her vulnerabilities.

9On the night of offending, 12 February 2023, your victim, Craig Mckimmie, and your mother were in what must have been a recently formed casual relationship.  You had not met him until then.  He was aged 38.  The occasion was the 18th birthday party of your younger brother, which was held at the Cricketers Arms Hotel in Mooroopna, then later at your mother's home nearby in Morrell Street.  Craig Mckimmie was late invited on the night.  He was staying in a Mooroopna motel.

10You were drinking heavily and came in the company of your partner, FL.  There was a family violence intervention order which prohibited you from being in her company,  but only when drinking.  It is clear that you do not manage alcohol.

11At about 3 am you were very drunk and became aggressive.  You were outside, at the front of the premises.  You took a set against Mckimmie, what seems an irrational one.  There had been no trouble between you.  Part of the context was your mother's argument with her step-sister, who left.  It is also clear that your mother was drunk and/or in some way intoxicated.  Mr Page stated that you perceived Mckimmie to be insulting to your mother and to others in your family.  You repeatedly told him to fuck off.  He did not understand the change in behaviour; however, he agreed to go but needed to enter the unit to get a key and his clothes.  This seems to have further enraged you.  It does not mitigate but I accept that, because of drink, you were irrationally angry, albeit not in a state allowing for any defence related to intoxication.

12Despite the attempt by others to diffuse the situation you went into the unit, got hold of a knife, came out, ran at Mckimmie and stabbed him in the lower abdomen.  I find that there was one strike.  Reaction of bystanders was mixed and various,  perhaps people being affected by drink or otherwise.  However, the police and ambulance were called.  They arrived relatively quickly. 
Craig Mckimmie was found to be in a seriously endangered state.  There was some treatment at the scene and he was transported to hospital.

13Paragraph 23 of the Crown opening states as follows.

'On 24 March 2023 Dr Maaike Moller of the Victorian Institute of Forensic Medicine provided a report into the injuries suffered by Mckimmie.  In Dr Moller's opinion, based on an assessment of images from the scene and medical notes, Mckimmie suffered a penetrating injury to the abdomen.  Lost a total of 2.8 litres of blood.  Was neurologically comprised and had reduced consciousness.  Required lifesaving treatment consisting of wound compression, fluid administration, blood transfusion, administration of clotting agents and cardiac vasopressor agents.  Underwent emergency open abdominal surgery to stem the bleeding and clean up the abdomen.  Received intensive care support and without the above interventions would have died.'

14There is a reference in that paragraph to a possible second stabbing.  I have found, as said, only one strike.

15Craig Mckimmie has recovered from the state described at paragraph 23 of the Crown opening; however, there has been serious impact.  His victim impact statement describes the danger and his fear on the night,  that he was hospitalised in an intensive care unit for two weeks and needed treatment for months after.  He developed related conditions of deep vein thrombosis and pulmonary embolism whilst hospitalised but emerging later.  The injury has affected employment prospects and reconnection with his children.  There is large residual scarring which affects his children.  He has been diagnosed with post-traumatic stress disorder and takes medication.  Symptoms include flashbacks, nightmares and trouble sleeping.  He feels unsafe and has relocated.  He is hypervigilant and his social life is affected.

16I am not complete.  There has been very considerable victim impact which must be taken into account on my sentence of you.

17When police arrested you at your home on 14 September 2023 they found a relatively small quantity of cannabis, just over the legislative small quantity. 

18You are a 24 year old man awaiting this sentence in remand custody.  You have been in remand since arrest.  You have an older and younger brother.  Your mother has struggled with drug addiction and poor mental health.  There are or have been diagnoses of schizophrenia and drug induced psychosis.  She had you at 18 and your older brother at 16.  Your father left the family when you were young.  He subsequently moved to Queensland.  You have had some contact with him and lived in the Whitsundays with him in what seems early teenage.  That did not work out.  You also lived with your grandmother in Bendigo for a time in teenage.

19Your mother and family moved to the Tatura, Mooroopna and Shepparton area when you were about eight.  Your childhood presents as chaotic and traumatic.  Features were your mother's drug use, your exposure to domestic violence against her by a number of partners and Child Protection involvement.  When young you were also physically abused.

20As I have stated, your relationship with your mother has been both close and unhealthy. 

21You were expelled from school for smoking cannabis in Year 9.  That was when you went to Bendigo and there was some schooling there.  You returned to Shepparton.

22You have abused cannabis and alcohol from teenage.  There have been attempts by you to improve your life.  In late teenage you returned to education and over two years obtained your VCAL certificate.  There was a period, at about 20, when you used ice amphetamine.  You were depressed and suicidal.  However, you sought help and seemed to have overcome that.

23You have been in a dislocated but also at times supportive relationship with FL over a number of years.  She is 20 and the mother of your six month old child.  There is another child aged about two years whom you have not seen for 12 months.

24Your criminal record reflects, in my view, that damaged background.  There are five court appearances between 2016 and 2020.  There is some duplication;  for example, return to court having breached orders in the community.  Two appearances in 2016 are in the Children's Court.  There are offences of dishonesty, violence and breaches of family violence intervention orders.

25In 2020 you served 45 days in prison.  Part of that offending was against FL.  After release, supported by her, you stopped using drugs, obtained employment and you were buying a car.  She was expecting your child.  It was another more optimistic time.  However, you lost the job, being retrenched, and began to decline again.  This was about two months prior to these offences. 

26You were in remand when you child was born.  FL remains supportive and attended court.  Your younger brother, who also attended, lives with her.  At 24 you now face a substantial term of imprisonment. 

27This was senseless, shocking and savage violence.  Simple description states how serious and culpable your offending was.  Drink cannot mitigate what you did.  You have some relevant prior convictions.  There is serious victim impact. The circumstances make relevant sentencing considerations and purposes of your moral culpability, deterrence, the need to condemn your offending and proportionately punish it.  General deterrence aimed at community protection is important.

28However, I also take into account moderating factors. 

291..   Your plea of guilty and your cooperation.  I accept that you are genuinely remorseful.

302..   Your personal history and circumstances.  Your case may not fall into the extreme category of cases like Bugmy;   however, I see your background as playing a role in your situation and circumstances at time of offending.  Those difficulties of your earlier life should not be underrated.  For example, whilst your intoxication is not in the direct or primary sense a mitigating factor, I would find it likely that the dislocation and hardship of your developing years, including your mother's substance abuse, caused you to be vulnerable to your own substance abuse problems.

313.    An important factor is your youth.  It is relevant to both the circumstances of offending and to rehabilitation of you.  At 24,  prospects for that should not be discounted.  You have the support of your partner and it is hoped the motivation of responsibility for your child.  You have shown in the past, although those attempts at changing your situation ultimately failed, a genuine desire for a better functioning life. 

32There are also the aspects of hardship to imprisonment.  For example, the birth of your child whilst you were in remand and the still ongoing, albeit lesser impact of COVID-19 upon prisoners.

33In my view a combination of these matters, the matters I have identified, particularly your youth, go to justify a more merciful sentence perhaps particularly directed at the minimum term I set. 

34After considering and weighing what I see to be the relevant matters I sentence you as follows.

35On the indictment for Charge 1, intentionally causing serious injury, imprisonment for five years and nine months.

36For Charge 2, possession of cannabis, imprisonment for one month.

37On the summary offences, I impose on the indictable offence on bail charge, imprisonment for one month and I impose on the breach of family violence intervention order, imprisonment for three months.

38I make no orders or directions for cumulation.  Accordingly, the total effective sentence is that of five years and nine months.  I set a minimum term before eligibility for parole of three years and three months.

39I declare under s18, 274 days of pre-sentence detention, that is detention or custody already served.  Under s6AAA, had you not pleaded guilty I would have imposed a sentence of eight years with a minimum term of six years.

40Are there any other orders I need to make?

41MR MOORE:  I'll just clarify that, Your Honour.  There may be a forfeiture order, disposal.

42HIS HONOUR:  There is a knife that may have been recovered.

43MR MOORE:  A forfeiture and a disposal order.

44HIS HONOUR:  In relation to?  Well the drugs for one.

45MR MOORE:  Yes.  They'll be on the schedule.  They've been filed.

46HIS HONOUR:  I do not have them as yet.  I presume it is the drugs and I presume it is the knife.  Mr Page, you do not have any challenge to make to these orders, do you?

47MR PAGE:  No.  No, Your Honour, I don't.

48HIS HONOUR:  All right.  Well I will sign those - - -

49MR MOORE:  Knife and a mobile phone.  Knife and a mobile phone.

50HIS HONOUR:  Mobile phone.  Yes.  All right.  Well I will make those orders and I will sign them in chambers.  All right.  Thank you for your assistance, Mr Page, the other day and today.  Thank you, Mr Moore.  I will now adjourn the court and that means that I will turn you off, Mr Webster.  Did somebody want to say something? 

51You did a terrible thing, Mr Webster;  but I see in you, as I said, a real desire to turn things around and you have not found that easy.  I wish you the best when you are released from prison and I hope you do get on parole and helped by that you can turn things around for yourself.  All right.  Yes.  All right.  We will turn you off now.

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