DPP v Njegac

[2007] VSC 499

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1568 of 2006

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

TOMMY NJEGAC

---

JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 - 30 August, 4 September 2007
DATE OF SENTENCE:	3 December 2007
CASE MAY BE CITED AS:	DPP v Njegac
MEDIUM NEUTRAL CITATION:	[2007] VSC 499

---

Criminal Law – Sentencing – Intentionally causing serious injury – Unprovoked stabbing of perceived tamperer by drug-affected assailant – 5 years imprisonment – non-parole period of 3 years and 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Barry	Office of Public Prosecutions
For the Accused	Mr A. Lewis	Slades & Parsons

HIS HONOUR:

1. Tommy Njegac, you have been found guilty by a jury of the offence of intentionally causing serious injury to Pieter Van Hulsen at Braybrook on 9 February 2006.  The same jury found you not guilty on the primary charge of attempted murder.  The maximum penalty for intentionally causing serious injury is 20 years imprisonment.  That maximum reflects the seriousness of the offence.

1. For a period of about 12 months, ending about 12 months prior to 9 February 2006, you had been in a relationship with Mirdza Van Hulsen.  She was one of a family of four.  Her parents were Pieter and Daina.  Her younger sister was Melissa.  During the period of the relationship, Pieter formed the view that the relationship with you was not good for Mirdza.  You were aware of his view.  You generally avoided contact with Pieter.

1. After the relationship was over, you and Mirdza continued to see each other from time to time.  In February 2006, you lived a distance of a little over a kilometre from where Mirdza lived with Daina and Melissa.  The three lived at 12 Castley Crescent, Braybrook, which I will call “the property”.  Pieter lived elsewhere.  He visited the property from time to time.

1. By February 2006, you had come to believe that Pieter was a tamperer, in other words a person who had had inappropriate sexual contact with his daughters.  The basis for that belief is questionable.  You say Mirdza told you so.  Evidence was given before the jury by the four Van Hulsen family members.  All denied that there was any basis for such a belief.  Shortly before 9 February 2006, you voiced your belief when you called at the property.  In the presence of Mirdza, Daina and Melissa, you said that Pieter was a tamperer and that you were going to kill him.

1. In the early afternoon on Thursday 9 February 2006, you went to the property.  You took with you a large pointed knife.  Your evidence was that, after having been stabbed yourself about a year earlier, you always carried a knife.  You went to the window of Mirdza’s bedroom and knocked on it.  It was Melissa who came to the window.  She told you to leave.  You chose not to leave.  You said you wanted to speak with Mirdza.  At about this time, Pieter drove onto the property.  You were not then in his range of vision.  You had the chance to leave the property without coming into contact with him.  You chose not to leave.

1. You and Pieter and Melissa came together in an area behind Pieter’s car.  Within a short period of time, there was a flurry of activity and an exchange of angry words.  You pulled out your knife.  Melissa tried to get the knife from you, but was not able to do so.  A child’s scooter was briefly taken up.  It was not used to any effect, and was thrown to the side.  Pieter told you to put the knife away.  He did nothing to provoke you.  You chose to attack him.  You used the knife you had brought with you to stab Pieter three times in the chest on the left side.  You then left the property, taking the knife with you.  By the time you were arrested close to your home an hour or so later, you had disposed of the knife.

1. Taken together, the injuries suffered by Pieter were quite serious, as distinct from being really serious.  One stab did penetrate a lung.  Pieter remained in hospital until February 12, the stabbing having taken place on February 9.  The stab wounds were such as to cause a long-term reduction in mobility and strength.  If the injuries had been really serious, the period of the imprisonment that I would have had to impose on you would have been significantly longer. 

1. The verdict of the jury means that they were not satisfied that you then had the intention to kill.  It also means that they were satisfied that you were not acting in self-defence.  On the scale of relative seriousness, your offence is not at the top of the scale.  But it is certainly not near the bottom.  You had made a previous threat to kill Pieter. You came onto the property uninvited. You brought the knife to the property.  You were not provoked.  You used the knife three times.

1. I have read the victim impact statement prepared by Pieter van Hulsen.  He has written of the continuing physical and psychological problems resulting from your actions.  Those are matters which I must take into account.

1. You have significant prior convictions, some dating back as far as September 1995. There are over fifty convictions arising from twelve appearances before Magistrates’ Courts.  They include convictions for assault and possessing a controlled weapon. You have been given many chances to rehabilitate yourself.  You chose not to take advantage of them.  I must have serious regard to the need for special deterrence.

1. You are 29 years of age, having been born in March 1978. You were raised in a supportive family environment.  Regrettably, there were episodes of your being sexually abused.  They appear to have made you particularly sensitive to other instances of such abuse.  At one time, you showed considerable promise as a soccer player.  Regrettably, you opted to engage in the use of illegal drugs at an early age. The report of Dr Sullivan contains more details not only of your personal history, but also of the history of your drug and alcohol problems and of the psychiatric attention that you have received linked to those problems.  Dr Sullivan, who gave evidence before me on the plea, saw you first in June 2006 and again in July 2007.  He noted that you had a major problem with anxiety.  He also noted understandably that your polysubstance dependence was in abeyance.  Only to a limited extent can sentencing principles linked to your mental state be seen to apply to lessen moral culpability or moderate the need for general deterrence.  In the period leading up to the events for which you are to be sentenced, you made the choice to continue to take illegal drugs.  That choice had its consequences as to your perceptions of the appropriateness of other choices.

1. There are other mitigating factors to which I must have regard.  You offered to plead guilty to the offence for which you were ultimately found guilty.  Given the continuing support of your parents, you are not beyond rehabilitation.  You are young enough to have the potential to value the support and make a permanent change.

1. I have signed the orders for retention and disposal submitted on the plea, there being good reason and no objection to my doing so.  You have spent 662 days in pre-sentence detention.  I direct that that be entered in the court records. I impose a sentence of 5 years.  I fix a non-parole period of 3 years and 6 months.

---

CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for Sentence of Teague J of the Supreme Court of Victoria delivered on 3 December 2007.

DATED this 3rd day of December 2007.

Associate