DPP v Lewis
[2009] VSC 334
•9 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1413 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEIL JOHN LEWIS |
---
JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | June 29, July 2, 2009 | |
DATE OF SENTENCE: | 9 July 2009 | |
CASE MAY BE CITED AS: | DPP v Lewis | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 334 | |
---
Plea of guilty - intentionally cause serious injury - 58 year old - no previous criminal history.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Gibson | Office of Public Prosecution |
| For the Accused | Mr D Hallowes | Rob Stary & Associates |
HER HONOUR:
Neil John Lewis, you have pleaded guilty to one count of causing serious injury intentionally to Allison Francis on 16 March 2008 at Tarneit.
You are currently 58 years of age, having been born on 7 May 1951. You are unemployed and reside in Traralgon and have no prior convictions.
The circumstances of the offending were outlined in both oral and written form by the prosecutor and are Exhibit 1 on the plea. Whilst I will not refer to all of those matters, I will, in short compass, describe the circumstances of the offending.
On 16 July 2008, you had been residing at 131 Harmony Drive, Tarneit for approximately six months. You initially moved into the premises as a boarder of Allison Francis, who resided there with her five year old son. She was separated from her partner and was a single mother raising her child. You met her initially through working at premises opposite each other. You became friends and, for the first three months of residing at her premises, you were in fact a boarder. The relationship developed after that three month period and you moved into a more personal relationship.
Ms Francis and her son had a short holiday in Queensland and, upon her return, the relationship went to a more serious level than it had been previously. The two of you went to dinner on the evening of 15 March in 2008 and then spent the night together. On the next day, you, Ms Francis and her son, Kieran, went to the Laverton Trash and Treasure market, to the hotel opposite after that, and then to the Guiding Star Hotel on Geelong Road, which is where you had previously been residing before moving into Ms Francis’ home. You both had a number of drinks at the premises, but I am not able to be satisfied of the extent of the drinking or the level of intoxication, as there was no comment or question about your level of intoxication by any of the attending police officers and you were in fact interviewed by the police without being seen by a medical officer.
Upon your return to the premises some time in the afternoon, Ms Francis organised for her son to watch a video and the two of you retired to her bedroom and attempted to have sexual intercourse. This was unsuccessful due to you being unable to maintain an erection. Subsequent to this, there was some mention of the use of a vibrator which resulted in an argument between yourself and Ms Francis. According to your interview with the police, this argument occurred as a result of the comment about the use of a vibrator making you feel unmanly and inadequate. You stated to the police that it caused you to feel rage, angry and disappointed.
You began yelling at Ms Francis and then slapped her across the face a number of times with an open hand. You then grabbed a knife from the Staysharp block on the kitchen bench and stabbed Ms Francis once. You stabbed her to the abdomen area, just under the right ribcage, the knife went though the front wall of the stomach, into the inside of the stomach, which allowed the stomach content to leak into the abdominal cavity, and you caused a penetrating injury to the first part of the duodenum and a small haematoma in the falciform ligament. This stabbing occurred in the kitchen of the house. You kept the knife in your hand and kept screaming at Ms Francis. She then started to bleed and grabbed her son, Kieran, and rushed to the ensuite of the bedroom to get a towel to stem the flow of blood. She told you to call an ambulance, which you did. In the 000 call, you asked for an ambulance and said: “I just killed my girlfriend. She is bleeding from the stomach where I stabbed her”.
Police arrived at the premises a short time later at 4.43pm. When you answered the door, you were still holding the knife in your hand. You dropped it when asked to do so and kept saying to the police “I did it, I did it”. Ms Francis was taken to hospital and operated upon. Unfortunately, Ms Francis did not recover well and a second operation was performed on 17 March 2008. She was placed in an induced coma as a result of complications and she has been left with a 30 centimetre scar on her stomach as a result of the surgery. The photos tendered on the plea as Exhibit 2 demonstrate the extent of the injury that she has sustained. Ms Francis was placed in an induced coma as a result of complications and she was in the Alfred Hospital from 16 March to 2 April 2008. Her injury was described by the doctor who treated her as potentially life-threatening.
You made full admissions to the police, with the exception that you stated you did not remember actually stabbing Ms Francis, but appeared to accept that you must have. You told them you did not remember getting the knife; you admitted to slapping her across the face but claimed to have no memory of what occurred after that. You told the police the next thing that you remember was her laying on the garage floor, crying and bleeding. You remembered holding the knife that had blood on it, but claimed you did not remember getting the knife or how you used it.
The maximum penalty for the offence to which you have pleaded guilty is 20 years’ imprisonment.
I have received a Victim Impact Statement from Ms Francis, together with a report from her psychologist, David Sullivan. This incident has, unsurprisingly, had a significant impact upon Ms Francis. Apart from describing in some detail her time in hospital and afterwards, together with the amount of pain that she has suffered and continues to suffer, she has also suffered significant emotional trauma. She has lost the feeling of security in her home. She no longer socialises, and is not interested in forming a relationship, as that feeling of trust in relationships has been taken away from her. There are a number of other matters to which she has referred, including her loss of income at the time due to inability to work. I must say that the report which she tendered to the Court was realistic and I take the contents of that report and the report from the psychologist into account when imposing sentence.
The circumstances under which you injured Ms Francis are appalling. This was a woman with whom you were supposedly having a caring and loving relationship. You stabbed her in her own home whilst her five year old son was present in the home. Every woman, every man, every person is entitled to feel safe and secure in their home. Domestic violence of this level or any level is unacceptable and calls for significant punishment to be imposed. The fact that you had been drinking does not, in my view, mitigate in any way your offending on this day. Whilst it might explain some of your disinhibitions in respect of the offending, it does not excuse or in any way modify or reduce the sentence that should be imposed upon you. Your counsel submitted that the consumption of alcohol is a relevant mitigating factor and relied upon two cases being Coleman v R[1], a NSW decision and R v Dale Robert Walker.[2] I do not accept that the court in Walker has expressed any support for the proposition that you have submitted, and, accordingly, whilst I accept that your consumption of alcohol may have explained your actions in relation to its disinhibiting qualities, it does not excuse justify or mitigate your actions in any way.
[1] (1990) 47 A Crim R 306.
[2] Unreported Court of Appeal decision of Hayne, Southwell and Smith JJ, 31 May 1996.
As I indicated, you have no prior convictions and you are entitled to the benefit of having lived 56 years in the community without being involved in any criminal activity and being a person of good character until this stage.
Equally, you have pleaded guilty to the offence and are entitled to and will receive an appropriate reduction in penalty for that plea of guilty. There was some debate during the plea as to whether or not it could be taken as an indication of remorse, and it was submitted by the Crown that the late stage of the plea should be taken into account in respect of that matter.
I do accept that you are remorseful for your actions and your plea of guilty to the offence of intentionally causing serious injury, together with other factors, including the fact of there being one stab wound, the fact that it was not pre-planned, the fact that you have remained at the premises, the fact that you rang an ambulance and informed the ambulance people that you were responsible, the fact that you informed the police upon their arrival that you were responsible and also during your record of interview you admitted your responsibility again. The combination of those factors does lead me to accept that you are in fact remorseful.
I also have to take into account your personal history. As indicated, you are now 58 years of age. You were 56 at the time of the offence. You are the eldest of six boys. Your parents are both deceased, your father dying when he was 69 years of age and your mother when she was 65. You were born in Reservoir and your family moved to Gippsland when you were approximately four years old, where you remained for the next eight years. You had a happy childhood and a close family. You described yourself as an active sportsman with lots of friends. You completed Year 11 at Mirboo North High School at the age of 17. You did an apprenticeship with the Victorian Railways as a mechanical fitter, and later became involved in working in Western Australia, firstly, as a machinist and then as a powder monkey, rock blasting for dam walls and similar. You also were employed as a sheet metal worker with several companies, and later moved back to Gippsland becoming associated with power stations in your role as a mechanical fitter. Your employment in the Gippsland area ceased in around about 2002.
In 1973, you married your wife, Lyn, and had six children. After 16 years, that marriage failed and your wife moved to Canberra with the children. I was informed that in relation to your ability to see your children, your wife had a new partner, there were some difficulties in respect of seeing the children as well as your relationship with the children. Subsequently you ceased contact with your children, with the exception of one child with whom you maintain contact. You married again in 1992 to a woman named Barbara. You had no children with her, but she had two children of her own. You and Barbara separated in 2006. At that stage, you had been living in Morwell and, being unable to find work in Morwell, you started employment with Devcom, initially part-time when you would return home from Melbourne to Morwell, but when the employment became full-time, you moved to Melbourne, staying at the Guiding Star Hotel in Brooklyn. Your counsel stated that the absence away from your wife was considered by you to be the main contributing factor to the break up in the marriage. It was while living in Melbourne full-time that you met Ms Francis.
After this incident occurred, you were remanded in custody and you spent 12 days in custody at the custody centre at the Melbourne Magistrates’ Court. Your counsel instructed me that you were assaulted whilst at the Melbourne Magistrates’ Court and in the reports of Dr Walton and Dr Daryl Ham, you reported that you were assaulted and raped whilst you were incarcerated. On examination of this issue, Dr Ham reports that you told him you had been assaulted and raped. Dr Walton stated in his report:
There was a particular incident where a fellow prisoner, unknown to Mr Lewis previously, subjected him to multiple threats to kill, repeated physical assaults in the form of punching and kicking, and there was also a sexual assault, what amounted to simulated anal intercourse, rather than actual penetration.
It was stated that you had reported this to the prison authorities and I requested a report be obtained. One was subsequently provided which says that the report occurred on 25 March 2008. The report states:
During the evening of 23/03/08 and 24/03/08 victim Lewis was placed in cell with male Roger Kerr, 12/07/63. During the night, Kerr has repeatedly got out of bed and punched the victim in the head and ribs. The victim stated earlier on 23/03/08 that he had been involved in an argument with another prisoner and that the prison officers had intervened. He believed that Kerr was reacting as a result of the prison officers. Victim was treated by nurse and then conveyed to St Vincent’s for precautionary X-rays which resulted in a possible cracked rib. Police investigators attended at custody centre and spoke to victim, who stated that he had thought the matter through and decided to make a statement of no complaint. Victim informed of his rights regarding matter. Statement of no complaint taken.
I accept that your time in custody, brief though it was, was in fact traumatic and difficult, and the concept of returning to imprisonment places you in fear. After your release, you moved in with your brother in Traralgon as part of your bail conditions. You and your second wife, Barbara, had a fish and chip shop in Morwell, which commenced around 2004, initially being run by Barbara. At the time of your release, Barbara no longer wished to run the fish and chip shop and you took it over, which included taking over a business loan of some $41,000. That business ceased operation on New Year’s Eve 2008 and you have filed for bankruptcy due to the outstanding debts.
You were released on bail on the CREDIT program and referred to the Court Integrated Support Program. You were referred to the Latrobe Community Health Service for a drug and alcohol assessment and to a Ms Kerri-Ann Gafa for ongoing counselling. You were also referred to Ms Theresa Jones, a general counsellor, and you have maintained this relationship and continue to be involved in general counselling. You have been involved in your local community in the form of umpiring of young footballers’ games, volunteering with the Country Fire Authority and being involved in the clean-ups post the bushfires in that area. You have undoubtedly attempted to do a great deal to rehabilitate yourself after this offending occurred.
Dr Walton, in a report tendered to the Court, stated the opinion:
Neil Lewis is suffering from a chronic mixed anxiety/depression disorder where the anxiety may be of panic proportions and bouts of depression reach suicidal intensity. In addition, he has developed post-traumatic symptoms in the aftermath of the stabbing and been the victim of assault himself in prison, with continuing intrusive images of the events and nightmares.
While Mr Lewis has been inclined to drink to excess from time to time, I am disinclined to diagnose him as actually alcohol dependent. He has no difficulty currently maintaining sobriety and a quite modest level of overall alcohol consumption. … My understanding is that Mr Lewis’ aggressive behaviour which brings him before the Court arises as quite out of character. He was inebriated and reacted adversely and grossly excessively to a comment from his partner which wounded his self-image of masculinity. He readily accepts that this reaction was gross, unacceptable and not excusable, and he does not seek to shirk responsibility due to the fact that he was inebriated at the time.
I appreciate that Mr Lewis is pleading, but simply as a matter of completeness there is no identifiable mental state defence. That said, to state the obvious, the disinhibiting effects of alcohol consumption likely were centrally relevant and, although I would rate it as a minor contribution only, the background of mood disturbance may have also contributed to impaired judgment.
Dr Ham, in his report, stated:
There has been slow improvement in his depressive symptoms but residual symptoms remain. He takes Zoloft 50mg anti-depressant. He has some features of post-traumatic stress disorder as a result of his own assault while in gaol. However, he is keen to get on with his life and have the Court case resolved. It should be noted he has no prior psychiatric history and also has no prior criminal record. I would believe his current depressive disorder is a reaction to the traumatic events earlier this year. I would also believe alcohol had a large bearing on his behaviour on 16 March 2008.
According to Dr Walton, around 2004 you began experiencing panic attacks, especially when under stress. He described that you were also having some recurrence of depression, and it was submitted that the application of the principles in Verdins should be used to moderate the sentence otherwise imposed. Whilst I will take into account what has been referred to in relation to your mental health issues, they do not, in my view, moderate to any significant level the sentence that would be otherwise imposed, but will attract a small degree of moderation of the sentence.
There are other mitigatory factors which are far more significant, including your plea of guilty, your expressions and behaviour which have demonstrated remorse, your lack of criminal history, your good character within the community and your participation within the community on voluntary levels, your lengthy work history and matters of that nature.
There have been a number of persons who willingly provided character references for you, and all of them speak of this assault as being singularly out of character for a hard working, family orientated man such as you. I have no reason to doubt that evidence.
There are a number of matters to which I have referred that relate to mitigatory matters, but there are other factors that must also be taken into account when determining the appropriate sentence, including denunciation of the crime, protection of the community, general deterrence, specific deterrence although that is not so important in your case, as I am satisfied that you are genuinely remorseful and have made great attempts to rehabilitate yourself, just punishment and an overall sentence that is appropriate in all of the circumstances.
There is no doubt that a crime of this nature and at this level calls for a custodial sentence. Your counsel submitted that in the circumstances the sentence to be imposed could be a sentence of three years or less and wholly or partly suspended. The Crown submitted that a fully suspended sentence would not reflect the gravity of the crime or the circumstances surrounding it. I agree. A wholly suspended sentence could not, in my view, in these circumstances, even with all the mitigatory aspects that are present in your case, be justified. The crime calls for a sentence of longer than 3 years imprisonment, at least as a head sentence, and once in that situation it would be more appropriate to determine a period of parole.
Accordingly, in respect of the count of intentionally causing serious injury you are convicted and sentenced to be imprisoned for a period of 4 years and 3 months. I declare that you are to serve a period of 2 years and 3 months before becoming eligible for parole.
Pursuant to section 6AAA of the Crimes Act 1958 I declare that the sentence I would have otherwise imposed were it not for your plea of guilty would have been 5 years 6 months with a minimum of 3 years 6 months.
---
0
0
0