Director of Public Prosecutions v Wilson
[2022] VCC 1097
•12 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01213
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN WILSON |
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| JUDGE: | HIS HONOUR CHIEF JUDGE P KIDD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 May 2022 |
| DATE OF SENTENCE: | 12 July 2022 |
| CASE MAY BE CITED AS: | DPP v Wilson |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1097 |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence.
Catchwords: Sentence – intentionally causing serious injury -
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Nash v The Queen (2013) 40 VR 134; The Queen v Wilson [2009] VSC 431; Byast v The Queen [2021] 98 MVR 266; R v Martin (2007) 20 VR 14; DPP v Kao [2009] VSCA 273; Worboyes v The Queen [2021] VSCA 169; R v Madex [2020] VSC 145; R v Biba [2021] VSC 327; Lukudu v The Queen [2019] VSCA 248.
Sentence:Eight years and six months’ imprisonment with a non-parole period of five years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions of Victoria |
| For the Accused | Mr A. Chernok (plea) Mr T. Brown (sentence) | Melinda Walker |
HIS HONOUR:
Preliminary
1Benjamin Wilson, you are now 39 years old.
2You have pleaded guilty to one charge of causing serious injury intentionally contrary to s16 of the Crimes Act 1958 (Vic). You were 37 years old at the time of committing this offence in October of 2020.
3The victim in this matter, Travis Haub, was also 37 years old at the time of your offending.
4
You met Mr Haub in about April 2020 after being introduced to each other by mutual friends. Mr Haub also met your de facto partner,
Ms Hayley Colbert.
Circumstances of the offending
5The circumstances of your offending are contained in the prosecution opening.[1] The facts as outlined in that document were not disputed by you.
[1] Exhibit A.
6At about 2 pm on 17 October 2020 you purchased 10 Jack Daniel's Double Black Bourbon and Cola cans from a liquor store in Stawell. You left the store and drove your brother's Ford Territory to the Black Range Holiday Village, Stawell Caravan Park where Mr Haub resided. You parked at the rear of his cabin.
7You spent the next 90 minutes talking with Haub and consuming some of the cans of alcohol together. The conversation turned to your suspicions about an affair between Haub and your partner Colbert. Haub denied that he was having an affair with Colbert and then turned to walk away from you.
8You then produced a large kitchen knife and stabbed Haub in the back four times. He cried out in pain and turned around to face you. You continued to stab him as he fell to the ground.
9You then knelt over Haub and said, 'Do you want to die?' He responded, 'No, please Ben stop.' You then stabbed him at least three more times in the torso region before leaving the caravan park shortly before 4:00pm.
10Haub was able to get up off the ground and walk to a nearby cabin occupied by Mr Andrew Cooper. Cooper let Haub inside the cabin and called Triple zero. At the direction of an ambulance operator Cooper applied pressure to the wounds.
11Police arrived shortly after and took over from Cooper in providing first aid until the ambulance arrived. Haub was placed in an induced coma and airlifted to the Alfred Hospital where he was admitted to the ICU in a critical condition. I will say more about his injuries later.
12At about 6.40 pm on 17 October 2020 police located you in a paddock adjoining your residence. You were holding a large knife, which you threw on the ground at the direction of the police. At the time of your arrest you admitted to police that you had stabbed Mr Haub.
13You were transported to Ararat police station where you were interviewed at 5.30 am on 18 October 2020. During the course of the interview you made full admissions to stabbing Haub in the back three times and once in the front. You said you had brought the knife that you used from your house and that you wanted to hurt Haub.
Objective gravity of the offending
14The seriousness of the offence to which you have pleaded guilty is reflected in the applicable maximum penalty of 20 years' imprisonment.[2]
[2] Crimes Act 1958 (Vic) s 16.
15On your plea your counsel conceded that your offending is a serious example of the offence of causing serious injury intentionally. In my view, that was an appropriate concession.
16You used an extremely dangerous weapon. It is common knowledge that knives have the capacity to inflict grave harm. The use of a knife increases the objective gravity of your offending.[3]
[3] Nash v The Queen (2013) 40 VR 134, 137 [10].
17Your offending involved a degree of pre-planning in that you took a knife with you to Haub's residence.
18Your assault on Haub was by no means fleeting. This was a sustained attack involving multiple stab wounds. Haub pleaded with you to stop, but you continued with your attack. The witness Mr Cooper described that, and I quote, 'It looked like Ben was using all his strength, plunging the object into Trav's body.'[4]
[4] Statement of Andrew Cooper dated 17 October 2020, Depositions p 72.
19Mr Haub suffered multiple wounds to the following areas:
(1)the right parasternal (being his upper chest region);
(2) his right infraclavicular (which did not penetrate the thoracic cavity);
(3) three paraspinal stab wounds to the posterior chest wall;
(4) one stab wound to the scapula; and
(5) one stab wound to his bowel area.
20Mr Haub suffered the following injuries:
(i)a right massive haemothorax (that is, blood pooling within his chest
cavity).
(ii)a cut to his right mammary artery, requiring a vein truncation to stem the bleeding;
(iii)a right upper lob laceration to his lung; and
(iv) full-thickness jejunal perforation (necessitating surgery to remove 10 centimetres of his bowel).
21Haub, underwent lifesaving surgery which involved closing the stab wounds to the front and rear of his torso, his left elbow and closing the laceration to his lung. He had to undergo a trauma laparotomy to remove the damaged section of his bowel and reconnect what remained. He was eventually released from hospital on 24 October 2020.
22
A medical practitioner says in her report, that without the immediate treatment of paramedics and the emergency and trauma teams at the Alfred Hospital,
Mr Haub would have almost certainly died.[5]
[5] Report of Dr Caroline Boult dated 13 January 2021, p 8.
23Mr Haub has not provided a victim impact statement. I must nevertheless have regard to the impact of your offending upon Mr Haub.[6] The significant impact that your offending has had on Mr Haub is self-evident from the extremely serious injuries he suffered.
[6] Sentencing Act 1991 (Vic) s 5(2)(daa).
24I will assess your motivations and moral culpability separately below.
Criminal history
25You come before the court with a significant criminal history.
26On 21 December 2009 you were sentenced in the Supreme Court to 10 years' imprisonment with a non-parole period of seven years. This sentence related to a single charge of defensive homicide to which you pleaded guilty. The conduct which gave rise to this conviction involved you stabbing the victim multiple times with a knife causing death. You were intoxicated by the effects of alcohol at the time of committing this offending.
27On 14 May 2008 you were convicted in the Melbourne Magistrates' Court of making a threat to kill, amongst other offences, and you received an aggregate sentence of five months' imprisonment.
28You also have convictions for intentionally causing injury from June 2000 and reckless conduct endangering serious injury from July 2005, amongst other prior convictions.
Personal circumstances
29You are now a 39 year old man.
30For your personal history your counsel relied upon a psychiatric report authored by Dr Adam Deacon. Dr Deacon interviewed you by video conference in December 2021. This report, dated 18 February 2022, was tendered on the plea.[7]
[7] Exhibit D2.
31You reported to Dr Deacon that your parents provided good care to you as a child. Dr Deacon described your childhood as relatively unremarkable and said you were raised in a stable and supportive family.
32However, you reported being a difficult child and consistently being in trouble from age 11. You completed Year 9 and attended TAFE for one year. You reported performing poorly throughout school and lacking self-confidence. You described yourself as a loner.
33You previously resided in Stawell with your partner Ms Colbert. You had been in a relationship with Ms Colbert since late 2017. You and Ms Colbert have an 18 month old daughter together.
34Your employment history is in labour, including abattoir work, bricklaying and roof tiling. You reported to Dr Deacon that you have been on the disability support pension for about one year prior to your arrest and you referenced mental health issues as the basis for receiving the pension.
35You have been previously incarcerated twice.
36
It is clear from Dr Deacon's report and from the sentencing remarks of
her Honour Justice Curtain of the Supreme Court,[8] in relation to the defensive homicide matter, that you have a complex history of mental health issues. I shall now turn to how these are relevant to your sentence.
[8] The Queen v Wilson [2009] VSC 431.
Moral culpability and Verdins
37Your mental state was seriously compromised at the time of this offending, it having been committed while you were gripped by methamphetamine-induced psychosis.
38Your history of drug abuse is detailed in the sentencing remarks of Curtain J relating to your sentence for defensive homicide and in Dr Deacon's report. I will not rehearse this history in detail here. Suffice to say that you commenced using cannabis at the age of 11. Ultimately this persisted to persistent methamphetamine abuse. By the time of this offending your methamphetamine abuse represented a longstanding problem.
39In relation to the period leading up to this offending you reported that since your release from prison you commenced using methamphetamine intravenously in 2019. You reported that you had been using methamphetamine on a weekly basis prior to your offending which brings you before me and that you had most recently used about 4-6 days prior to your offending.
40
You reported to Dr Deacon that you avoided contact with the Ararat Mental Health Services for about two months leading up to this offending in
October 2020. You were therefore not medicated for those two months.
41I will reproduce what I consider to be some of the key portions of Dr Deacon's report.
42At paragraphs 5-7 Dr Deacon says the following:
Mr Wilson appears to have developed a persistent psychosis directly in response to his persistent methamphetamine use. He developed the core belief that he was being followed and bothered by members of the Hells Angels Motorcycle Club. His beliefs appear to have been shaped by his previous experience in custody.
Mr Wilson reported a clearly defined delusional state whereby he developed the firm belief that his life was in jeopardy. He was associating with purported drug dealers. He misinterpreted conversations and behaviour to the extent that he became convinced that he was soon to be subject to a torturous death.
Mr Wilson’s evolving delusional persecutory beliefs crystallised into a final state whereby he felt compelled to act in order to prevent his own death. In this context he decided to assault the victim.
43At paragraph 8, Dr Deacon says:
Mr Wilson has been psychiatrically assessed in custody. The general consensus is that he experienced a methamphetamine-induced psychosis that mostly promptly resolved. However, he had presented with residual low-grade levels of paranoia and intermittent auditory hallucinations. These residual symptoms could feasibly represent the lingering effects of sustained methamphetamine use, as such symptoms can persist, but it is unusual for drug-induced symptoms to persist so long beyond the last period of methamphetamine use. He also appears to have a paranoid personality type that predisposes him to forming suspicious thoughts and heightened self-reference. These personality qualities were evident at the end of this assessment (as detailed in the mental state assessment).
44Further, at paragraph 10, Dr Deacon says:
Mr Wilson reported that he attempted to moderate his methamphetamine use in the community knowing that it could contribute to mental problems. Despite having this knowledge and insight, he persisted with his use. He appears to have lacked insight into his psychotic state whilst he was gripped by it, but soon following his detention in custody he was able to reflect and appreciate the irrationality of his beliefs and resultant misguided violence.
45More specifically you told Dr Deacon that you tried to limit methamphetamine use as you were, 'too scared to get drug-fucked… I know where it would lead to'. Dr Deacon further notes that the Justice Health records indicate that you had reported that methamphetamine spiralled your thoughts into delusional beliefs, and you could violent and unpredictable when untreated and on substances.
46Finally, at paragraph 12, Dr Deacon concluded:
Mr Wilson’s altered mental state can be best understood to represent a methamphetamine-induced psychosis on the background of an underlying paranoid personality.
47After the plea hearing, I raised with the parties that I required some clarification around the question of whether your residual low levels of paranoia associated with personality type had any contributing or causative role in relation to your mental state at the time of the offending.
48I received a supplementary report from Dr Deacon dated 8 June 2022 from your solicitors.
49In that supplementary report Dr Deacon noted:
It is very difficult to precisely determine the relative impact of Mr Wilson’s personality structure versus the impact of methamphetamine induced psychosis on his residual low-level grades of paranoia and intermittent auditory hallucinations. Part of the challenge to determine the relative impact of these two variables is the potential for an interaction between them.
…It is possible that Mr Wilson’s paranoid personality type had a modest causative role at the time of the offending, but there is compelling evidence that he was in the grips of a methylamphetamine-induced psychosis that drove his offending behaviour.
50Three propositions are clear.
(a)You were in a significantly delusional state at the time of your assault upon Mr Haub as outlined by Dr Deacon in his reports. Whilst on the face of some of the evidence of the victim and some of the answers in your record of interview, jealousy seemed to provide some of the background to this offending, this crime cannot be characterised as a calculated crime of jealous rage or fury. This is common ground between the parties, and I accept that.
(b)Your delusional state was caused and driven by your use of methamphetamines.
(c)And you had insight into the effects of methamphetamine use on your mental condition and upon your unpredictable violent behaviour.
51The fact that a person was in a psychotic or delusional state at the time of committing the offence can warrant significant mitigation in sentence, upon the basis that it reduces the offender's moral culpability or blame worthiness. The law recognises that to the extent that the offending conduct can be seen to reflect the operation of factors which are beyond the offender's control – such as significant mental impairment – the court's assessment of the offender's moral responsibility is likely to be moderated.
52However, in your case, the evidence shows that the onset of your psychosis at the time of the offending in question was fundamentally triggered by your choice to ingest methamphetamine, despite your knowledge and insight into the foreseeable consequences upon your mental health. Your offending conduct is, in truth, attributable to voluntary drug ingestion choices made by you for which you should be properly held responsible.[9] Your counsel conceded as much.[10]
[9] Byast v The Queen [2021] 98 MVR 266, [40]-[42]
[10] I stress that the prosecution did not rely on your use of methamphetamine as an aggravating feature, and I will not treat it as such in sentencing you. The state of the evidence concerning your drug ingestion, with foresight as to the consequences upon your mental health, simply preludes you from being able to rely upon your psychosis to attract the significant discount under Verdins. R v Martin (2007) 20 VR 14, 18-22 [15]-[53]; DPP v Kao [2009] VSCA 273 [35], [42].
53There is one qualification to what I have just said. It seems to me that in his supplementary report in particular, Dr Deacon makes allowance for a hypothesis that your paranoid personality type, quite independent of your drug use, had some, albeit modest or limited causative impact upon your mental state at the time of your offending. Dr Deacon has exposed some evidence to support the hypothesis, most notably the persistence of residual symptoms so long beyond the last period of methamphetamine use. It is otherwise not possible to quantify the contribution your paranoid personality type had to the offending in question.
54In the light of Dr Deacon's supplementary report the prosecution agreed, conceding that some ‘slight’ reduction in your moral culpability was warranted. The defence appears to join in on those submissions.
55In my view, there is a realistic connection between your paranoid personality type and your offending. Further, unlike any psychosis caused by your consumption of methamphetamine, you are not responsible for your paranoid personality type. To the extent that this played some modest or small role in your mental state at the time of your offending, I will make a corresponding limited decrease in my assessment of your moral culpability. Ultimately, it is a relatively small reduction because your mental state at the time of your offending was fundamentally and most directly explained by your self-induced methamphetamine related psychosis. That having been said you will receive some benefit for it.
56More generally your mental health issues provide me with a context for this violent offending. This evidence provides me with some insight into the conduct which might otherwise seem to be an inexplicable, savage and gratuitous attack.
57In summary, while moderated somewhat, your moral culpability remains high.
General relevance of mental and intellectual issues
58The expert evidence tendered before Curtain J also revealed that you are of and I quote, 'low average intellect'. Dr Deacon stated that your intelligence was estimated to be a 'low-normal'. There was no evidence clearly linking your low-average intellect with this offending. Nevertheless I take this evidence and your mental health issues into account in a general way as matters personal to you.
General Deterrence and denunciation
59It was also submitted by your counsel that your ongoing low-grade psychological condition discussed by Dr Deacon in his reports, combined with the evidence that you are of low-average intellect also allows for some limited moderation of general deterrence.
60I have already found that your low-grade psychological condition discussed by Dr Deacon has some limited impact on your offending. Further, neither your low-grade psychological condition nor your low-average intellect are attributable to methamphetamine use; they are fixed conditions and persist at the time of sentencing.
61Your counsel submitted that by reason of these conditions you are not a suitable vehicle for the full application of general deterrence, by comparison with individuals of normal intellectual mental capacities and not burdened by your ongoing low-grade psychological condition.
62On balance, I will make some allowance for these submissions, but, as your counsel has accepted this can only justify modest moderation. Dr Deacon qualifies your symptoms as I quote, 'low-grade' and the impact upon your offending was small or modest. Little is said about your low-average intellect in Curtain J's remarks or any of the medical reports, but on any view you are not significantly intellectually disabled.
63This sentence can – and must – still have a deterrent impact upon others, including upon those people who might be minded to engage in substance abuse with some foresight as to the violent and unpredictable consequences.
64Your offending is very serious offending; as well as general deterrence, denunciation and just punishment all play a role in my sentence.
Prospects of rehabilitation, community protection and the serious offender provisions
65You fall to be sentenced as a serious offender under Part 2A of the Sentencing Act 1991 (Vic).
66Part 2A applies to a court in sentencing a serious violent offender for a serious violent offence.[11]
[11] Sentencing Act 1991 (Vic) s 6A(b).
67Causing serious injury intentionally is a serious violent offence.[12]
[12] Sentencing Act 1991 (Vic) s 6B(1).
68A ‘serious violent offender’ means an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment.[13]
[13] Sentencing Act 1991 (Vic) s 6B(2).
69Your conviction and sentence to a term of imprisonment in 2008 for making a threat to kill means that you are a serious violent offender.[14]
[14] Sentencing Act 1991 (Vic) Sch 1 Cl 3(b)(iii).
70The prosecution also relied upon your prior conviction (and associated term of imprisonment) of defensive homicide as being a relevant qualifying offence pursuant to clause 3(b)(e) of Schedule 1 of the Sentencing Act 1991 (Vic). Whether that is so is not clear to me given that the legislature did not explicitly list the offence of defensive homicide as a serious violent offence when it could have done so. In the end, I do not need to decide whether defensive homicide is a serious violent offence and thus a qualifying offence. This is because you already fall to be sentenced as a serious violent offender. The serious violent offender provisions only require one relevant prior conviction. Your conviction and terms of imprisonment in 2008 for making a threat to kill qualifies you as a serious violent offender on its own, irrespective of your prior conviction for defensive homicide.
71In sentencing you as a serious offender I must regard the protection of the community is the principal purpose for which the sentence is imposed.[15]
[15] Sentencing Act 1991 (Vic) s 6D(a).
72To achieve the sentencing purpose of protection of the community I may impose a disproportionate sentence.[16] However the Crown did not seek for a disproportionate sentence to be imposed and I do not think that a disproportionate sentence is warranted in this case.
[16] Sentencing Act 1991 (Vic) s 6D(b).
73In addition to the application of Part 2A, your history and the circumstances of the current offending mean that the risk of your offending is real and the protection of the community must be given great weight in this sentencing exercise.
74You have already served a very substantial term of imprisonment for a violent offence – defensive homicide – where you stabbed the victim multiple times with a knife, causing his death. You were heavily intoxicated by the effects of alcohol at the time of that offending. You knew that you were an aggressive drunk according to the sentencing remarks of Curtain J.
75This is a very serious and relevant prior violent conviction involving, as it did, a brutal knife attack. It is alarming that the lengthy term of imprisonment imposed upon you and served by you for that defensive homicide did not deter you from engaging in yet another extremely violent knife attack upon someone.
76Of course I accept Dr Deacon's opinion that your mental state was seriously compromised at the time of the offending for which you fall to be sentenced and that you lacked insight into your psychotic state whilst you were gripped by it.
77The real worry for me is that you had some knowledge and insight into the impact which methamphetamine consumption could have upon your mental state. Despite this foresight, you persisted with your drug indulgence, which then fuelled the current offending. This reflects poorly on my assessment of your risk of reoffending and shakes my confidence in your capacity to abstain from drug or substance abuse when within the community.
78I stress however, the prosecution did not rely on your use of methamphetamine as an aggravating feature, and I will not treat it as such in sentencing you. The state of the evidence concerning your drug ingestion with foresight as to the consequences upon your mental health simply precludes you from being able to rely on your psychosis to attract the significant discount under Verdins. Of course, I must also consider the evidence surrounding your mental health issues and the circumstances of this offending, when considering the prospects of your rehabilitation.
79I make allowance for Dr Deacon's opinion that you have required some level of insight into your offending and some understanding of the factors that precipitated your violent offending. Dr Deacon said this of you:
He had some insight into most elements of what appeared to have been past methamphetamine-induced psychotic symptoms. He was able to reflect and recognise that most elements of his aberrant paranoid thinking directly associated with the offending was reflective of psychosis.
80This, Mr Wilson, is in your favour. It provides a foundation upon which to work in the years ahead. That said, your insight does not appear to be fully developed, and insight into the causes of your delusional thinking is not enough to mitigate the danger you represent to the community. You are yet to show a reliable capacity to resist the temptation which can trigger psychosis and your delusional thinking – drug use. This is what makes you a risk of reoffending.
81You are very fortunate to have continued family support and I note a number of your family members are following the sentence today online. Your mother, sister, brother and partner all attended your plea hearing remotely. I have also had regard to the character references provided by those persons. These references paint a picture of a loving, and loved, family man, unfortunately troubled by mental health and drug use issues. These references pick up on what Curtain J noted in her sentencing remarks that you can be a kind and generous person when unaffected by drugs and alcohol.
82I accept the submission advanced on your behalf that this family support operates as a protective factor. Your counsel also submitted that the fact that you are a relatively new father also operates as a protective factor. The force of this submission is qualified by the fact that your daughter had been born at the time of your offending – this did not deter you then. However, I do accept that this still operates as a strong incentive for you.
83What is clear is that your prospects of reform are ultimately dependent upon your abstinence from drugs and substance abuse once you again find yourself within the community. On the positive side, I accept that you do have a genuine desire or drive to reform. If you can do this you can become a productive member of the community and a productive member of your family. Unfortunately, I find it impossible to make an unconditional assessment of your prospects of rehabilitation. The fact of the matter is I cannot conclude with a high level of confidence that you will be able to remain abstinent given your history. I am generally uncertain about your prospects. What I can say is that should you come to grips with your drug abuse you can still make something of your life.
84I turn to your underlying personality disorder. Despite being abstinent from drug or alcohol use in prison, your vulnerability to feel paranoid remains ‘prominent and intermittently difficult’ according to Dr Deacon. As Dr Deacon noted in his supplementary report, personality is by definition relatively fixed and not often limited in response to psychotropic medications and psychological intervention. I have made some reduction in your moral culpability by reason of this condition. On the other hand, because your personality issues are relatively fixed and may be difficult to treat, this increases the need for community protection. That all said, this is a comparatively minor factor in the determination of the weight to be given to community protection in your case. Of far greater significance is the risk you pose by reason of your methamphetamine induced psychosis.
85Overall, protection of the community is the predominant sentencing consideration in my sentence today.
Specific deterrence
86As I have said, you do possess some insight into the link between your drug consumption and your violent behaviour. Whilst this leaves some room for reform, it also means that you still have some capacity to learn from the experience of punishment. Your mental health does not preclude you from the application of the principles of specific deterrence, though some moderation is required.
Plea of guilty and the associated benefits
87A contested committal hearing proceeded in this matter in June 2021. The matter then had a number of procedural hearings in this court whilst the availability of the defence of mental impairment was explored on your behalf. The matter ultimately resolved in April 2022.
88Your counsel acknowledged that your plea was not made at the, 'absolute earliest available opportunity'. However, it was submitted that your plea of guilty was an early one. On the other hand, the Crown submitted that your plea was not an early one.
89Your counsel said that you have never challenged the factual matrix of what occurred. It was said that the committal hearing was directed to exploring your mental presentation at the time of the offending, not to challenging the factual allegations of what occurred. Your counsel also pointed to the fact that you made admissions upon arrest and provided a frank record of interview.
90Whilst not a plea at the earliest available opportunity, in these circumstances I am prepared to find that it was effectively an early plea. The timeliness of the plea must be assessed having regard to the complexity of the issues which needed to be navigated prior to resolution.
91As submitted by your counsel, your plea of guilty is particularly significant in the current pandemic environment. The law says that a plea of guilty during the COVID-19 pandemic is worth greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemics effects.[17] You will receive a substantial benefit in sentence in this respect.
[17] Worboyes v The Queen [2021] VSCA 169 [39].
Remorse
92
Your counsel submitted that your plea is indicative of remorse. In this respect, your counsel relied on Dr Deacon's report where it is noted that you reported experiencing, 'guilt, shame and remorse'.[18] In addition to the report of
Dr Deacon I also think the character references tendered on your behalf provide evidence of remorse.
[18] Report of Dr Adam Deacon, p 6.
93The prosecution submitted that there is limited evidence of remorse.
94I do find that you have demonstrated genuine remorse and your plea of guilty is one aspect of that and it will attract a greater discount in that respect. Indeed, it is because of my finding that you have expressed genuine remorse that I stated earlier that you have a genuine desire to turn your life around.
Burden of imprisonment
95Dr Deacon said the following of you and imprisonment and I quote:
Mr Wilson continues to be experience mental challenges in custody. His vulnerability to feel paranoid, albeit attenuated compared with his presentation at the time of the offence, remains prominent and intermittently difficult. He has required regular contact with prison mental health services.
96I am satisfied that your time in custody has been, and will continue to be more difficult into the future, by reason of your mental health condition. I take this into account.
Pre-sentence detention
97You were remanded following your arrest on 17 October 2020 and have remained in custody since. You have therefore served 633 days by way of pre-sentence detention, not including today's date.
98As a result of the COVID-19 pandemic, I accept that your time on remand was more burdensome than it would otherwise have been.[19] Indeed, you have spent the vast majority of your time on remand in a protection unit.[20] I take that into account.
[19] Any further period in custody will likely be more onerous for the same reasons. For example, see R v Madex [2020] VSC 145 [51]; R v Biba [2021] VSC 327 [38]-[39].
[20] Exhibit D5, Corrections Victoria indent remand report dated 18 May 2022, p 4.
99I also recognise that this criminal matter has been looming now for over 20 months now. During this time you have had the prospect of imprisonment hanging over your head. This is a significant amount of time however this period of delay is not unusual and certainly not at this time. Nevertheless I take it into account.
100Overall, whilst delay is a factor in mitigation of sentence, it plays a relatively modest role.
Submissions as to sentencing disposition
101Your counsel said that given your particular circumstances, a disposition directed to your rehabilitation is appropriate and this can be achieved by minimising the time you spend in custody. Your counsel said that a sentence involving a moderated head sentence and non-parole period is an appropriate disposition.
102The head sentence I fix must of course take into account all sentencing purposes, especially community protection. I will fix a non-parole period which is the minimum time which justice requires you to serve having regard to all the circumstances. It will allow for the possibility of a period of meaningful supervision within the community. Whether you are granted parole at the expiration of your non-parole period will of course be solely for the Adult Parole Board. That assessment will be undertaken sometime into the future, not by me, but by the Parole Board at the relevant time.
103Finally, I also take into account current sentencing practice for the offence of intentionally causing serious injury.[21]
[21] E.g. see Lukudu v The Queen [2019] VSCA 248 and the example sentences cited therein, noting that these involved decisions prior to the onset of the COVID-19 pandemic and did not engage the principles set out in Worboyes v The Queen [2021] VSCA 169. See also, Sentencing Advisory Council, SACStat Higher Courts, Causing serious injury intentionally, (‘<
Sentence
104Mr Wilson can you please stand?
105On Charge 1, causing serious injury intentionally, I sentence you to eight years and six months' imprisonment. I order that a non-parole period of five years and six months' be fixed.
106I also note that your status as a serious violent offender will be noted on the record.[22]
[22] Sentencing Act 1991 (Vic) s 6F.
107You may sit down, Mr Wilson.
Disposal order
108I also make the disposal order sought by the Crown, which was not opposed.
Section 6AAA statement
109I declare under s 6AAA of the Sentencing Act that but for your plea of guilty, I would have imposed a total effective sentence of 12 years and six months' imprisonment with a non-parole period of nine years and six months.
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