DPP v Swanson
[2012] VCC 828
•9 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01021
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE SWANSON |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2012 | |
DATE OF SENTENCE: | 9 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Swanson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 828 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally causing serious injury-criminal damage-assault-relevant criminal history-young offender-first time in custody-adult prison
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms. C. Picone for Plea | OPP |
| Ms K. Linzner for Sentence | OPP | |
| For the Accused | Mr H. Rattray | Slades and Parsons |
HER HONOUR:
1 Kane Swanson, you have pleaded guilty to intentionally causing serious injury, which has a maximum penalty of 20 years imprisonment, to criminal damage, which has a maximum penalty of 10 years imprisonment and to assault, which has a maximum penalty of five years imprisonment. You have also agreed to this court dealing with two charges of possessing a prohibited weapon and have pleaded guilty to those. That offence has a maximum penalty of two years imprisonment.
The offences
2 I sentence you on the basis of the opening which was read by the prosecutor (Exhibit A).
3 In summary, on 27 March 2012, after a disagreement with your mother, you assaulted her by pointing a small knife at her, and later by pushing her. That combination of acts provides the basis for Charge 2 of assault.
4 You then turned to Daniel Tregent, who was then your mother’s boyfriend, and the father of your half-sister, and with whom you do not have a good relationship. He left the house and you followed him, having gone to your bedroom and armed yourself with a tomahawk. Out in the street you struck him once on each leg producing serious injuries. That is the basis of Charge 1.
5 Your mother had been outside the house too, but went back inside and locked herself in. You kicked in her bedroom window (which is the basis of Charge 3) and having gained entry to the house you pushed her, as I previously described.
6 Police attended quickly after receiving calls from a number of witnesses to the violent attack in the street. After your arrest, police searched your bedroom and found the tomahawk under the mattress where you had told them you put it. The police also found other weapons – a set of nunchucks and a butterfly knife. These are the subject of the two charges of possessing a prohibited weapon.
7 I received the medical records of Mr Tregent’s treatment (Exhibit C) and photographs of his injuries (Exhibit B). He sustained a deep laceration about six centimetres long on his right calf and a deep laceration on his left knee, about five centimetres long. I have no information about his recovery from these wounds.
Impact on the victims
8 Your mother made a statement to police immediately after the events. She was clearly upset, and she was concerned about your 18-month-old half-sister being there at the beginning of it all. I am told you feel bad about that too. Having read all the material provided to the court, and having observed you and your mother in court on the day of the plea, I accept that you love each other, but the relationship has been difficult at times. 27 March this year was one of those times. Your mother still supports you as shown by her attendance at court on the day of the plea.
9 Daniel Tregent did not want to make a statement to police about the events or the impact on him of your attack. However he did provide a letter to the court, which was handed up through your mother. In that letter he expresses the wish that you not be too harshly dealt with and shows a level of forgiveness to you for your actions. While you and he clearly will never get on with each other, I accept that his letter shows no lasting psychological impact on him from your attack.
Basis for sentencing
10 First, your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt:
(a) you made use of a weapon in the assault on your mother and then used another, more dangerous, weapon in causing the serious injuries to Mr Tregent;
(b) you escalated the initial argument with your mother to a physical altercation against her and Mr Tregent;
(c) you could have stopped the altercation when you first went to your room, but instead you picked up a more dangerous weapon and went after Mr Tregent;
(d) you prolonged the altercation by following Mr Tregent out of the house;
(e) your offences were committed either in the home where the occupants were entitled to feel safe or in the street where members of the public should not have had to witness your criminal behaviour; and
(f) your offences were committed while you were undergoing a community based order.
11 While the crime of intentionally causing serious injury is a serious offence, on the scale of possible injuries, fortunately, those you caused to Mr Tregent were towards the lower end. I consider the seriousness of the assault and criminal damage offences to be at the lower end of the middle of the range. I consider that your charges of possessing prohibited weapons are towards the higher end of the scale for that type of offence as you were well aware that their possession was illegal.
Factors in mitigation and personal circumstances
12 The first matter I take into account is that you have pleaded guilty. I also take into account that you pleaded guilty at an early stage of proceedings, while your case was still in the Magistrates’ Court. By your plea of guilty the community has been spared the time and cost of a trial and your victims have been spared the ordeal of giving evidence, both at committal and at trial. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
13 I also accept that the plea shows a level of remorse for your actions, in particular against your mother. Although you clearly did not like Mr Tregent, and probably never will, I accept that your plea in relation to injuring him also shows a level of remorse.
14 Although you were arrested quickly after the police were called, and the case against you was a strong one, I accept in your favour that you made full admissions to the police, including telling them where the tomahawk was located and confirming that your intention was to seriously hurt Mr Tregent.
15 The most important factor in your favour is your age. You are still 22, as you were when you committed the offences. This would usually mean that my sentence of you must have your rehabilitation as its primary purpose. I will return to this aspect later.
16 I was told something of your personal circumstances. You grew up living with your mother and never knew your father who died when you were aged seven. Your childhood was not an easy one, as you were apparently surrounded by drug use and violence from your mother and her partners. You apparently had little support from your mother and were left to look after yourself.
17 It was inevitable that you would try drugs yourself and you have used cannabis since the age of 12. You drink alcohol regularly. You have tried heroin and you regularly used amphetamines between the ages of 16 to 18. I am told that you have been drug free while in custody. I have no evidence about that, but if that is right it is a very good thing.
18 You left school during Year 11 and were unemployed for about two years. You commenced some jobs, but did not last. When you were about 20 you began a baker’s apprenticeship and found that you really enjoyed it. You successfully completed your first year and had just about completed a successful second year when you committed these serious offences. As a result you have lost that position, but you are hopeful your former employer will take you on again when you are available. Whether he does or not, I am told that you want to pursue that career on your release and you are to be encouraged in that.
19 There was a downside to your work; because of the early hour at which you began your day’s work you did not sleep well and, at the time of the offending, this was made worse by the fact that you were working longer hours in an effort to save enough money to rent your own place as you had before. Apparently you were paying half the rent where you were living with your mother and you were unhappy about Mr Tregent living there and not paying any rent. I am told you were also unhappy about other things to do with Mr Tregent.
20 You have been in custody since your arrest in the Youth Unit of the Metropolitan Remand Centre. Your mother has been unable to visit you in prison because of her own criminal history. She saw you in court on the day of your plea for the first time since the offences occurred; a period of four months. This is your first time in gaol.
21 I received a report from psychiatrist Dr Ruth Vine (Exhibit 2). She formed the opinion that you had no psychiatric illness and did not think you had a history of significant drug dependence. Dr Vine also formed the opinion that you had a limited forensic history. I was informed that she had received all the relevant material, including your Criminal Record. Dr Vine reported that you told her that you do easily become angry, but you said that was primarily in relation to your home circumstances and towards Mr Tregent although you also described verbal fights with a girlfriend, sometimes with associated property damage.
22 Although I accept the major opinions of Dr Vine, as to you not having a psychiatric illness and perhaps not a significant drug dependence history, in my view you do have a significant criminal history for a young man. Between December 2004 and August 2011 you were dealt with for 49 charges over eight appearances. The offences which are particularly relevant for my sentencing of you today are three charges of criminal damage, seven charges of possession of weapons and a charge of armed robbery. However I do accept that the armed robbery charge involved a threat of force rather than the use of force and so accept that this is the first time you have been convicted of an offence involving actual violence.
23 However, because of your extreme reaction to the argument with your mother which you then turned on to Mr Tregent, I am concerned that you do have a problem with anger. I considered getting a further psychiatric report to address this, but on being informed that Dr Vine, a most experienced psychiatrist, had all the relevant material I did not think a further report would be of assistance. However I remain concerned about your ability to manage your anger and I take this into account in determining your risk of re‑offending.
Submissions
24 The prosecution submitted that a term of imprisonment was the only appropriate sentence and put forward a range of three to four years, with a nonparole period of 18 months.
25 Your counsel conceded that imprisonment was the only option, but submitted that because of the factors in your favour a sentence towards the lower end of the range was adequate and further submitted that you should receive a longer period of parole.
Findings
26 I accept that the offences occurred in the context of you lacking sleep, trying to increase your savings, not getting on with Mr Tregent and then being asked by your mother to give her $50. However you clearly overreacted and were so angry that you did not stop yourself, even when Mr Tregent had left the house.
27 Apart from the matters I have already indicated that I will take into account, I note that you have not learned from your previous court appearances for similar offending and so, by my sentence of you, I must try to deter you from committing similar offences in the future. You were given a number of chances with the sentences you received in the Children’s Court and the Magistrates’ Court, but you have continued to offend.
28 Further, because the use of weapons by young men is to be strongly discouraged, a stern message must be sent by my sentence of you. I must seek to deter other young men from resorting to violence and from using weapons.
29 Next, I find that you are at risk of re-offending in the same way; that is, by letting your anger get the better of you and assaulting someone or damaging property. However, I find that you may finally have learned that you cannot collect prohibited weapons.
30 I am told that Mr Tregent no longer lives with your mother, but as he visits his daughter, your half-sister, at your mother’s house there is the chance that you will come into contact with him again. Because of the risk of re-offending that I have found, my sentence must seek to protect the community from you and, in particular, your mother and Mr Tregent. I note that apparently Mr Tregent took out an Intervention Order against you after the offences.
31 For all these reasons, I do not consider your rehabilitation as the primary purpose in sentencing you. It is still an important purpose, given your age, but it is outweighed by the need for specific and general deterrence and the need to protect the community.
32 You should consider doing an anger management course which will be available to you in prison. I see you nodding your head and I am pleased to see that. If you can learn to deal with your anger then your risk of re-offending will be lower, also your prospects of rehabilitation will be much better. You are a young man with your life ahead of you and you have found a career which you enjoy. On your release, if you can re-start your apprenticeship, and manage your anger and relationships, then you will be on your way to staying out of trouble.
33 Because of the seriousness of the offences, and the aggravating features that I have found, I do not consider that an adequate sentence would be at the bottom of the range as your counsel submitted. However I do agree with him that because of your age and the other factors in your favour I will be setting a longer term of parole. It is up to you to make the most of any opportunity you are given and any assistance you are offered.
Ancillary orders
34 Application has been made for the retention of an intimate forensic sample previously taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offences, that in all the circumstances I order the retention of that sample.
35 I have also signed the order for disposal of the two weapons you used, as well as some clothes. I note that you consented to this.
Sentence
36 You are convicted and sentenced as follows:
Charge 1: Intentionally causing serious injury – three years’ imprisonment
Charge 2: Assault - six months’ imprisonment
Charge 3: Criminal damage - 12 months’ imprisonment
Summary charges of possessing a prohibited weapon: on each charge, six months’ imprisonment.
37 Charge 1 of three years’ imprisonment is the base sentence. I direct that two months of the sentence imposed on Charge 2, four months of the sentence imposed on Charge 3 and one month of each of the sentences imposed on the summary charges are to be served cumulatively on the sentence imposed on Charge 1.
38 That results in an effective sentence of three years, eight months’ imprisonment.
39 I direct that you serve a minimum term of one year, six months before becoming eligible for parole.
40 I declare that the time you have already spent in custody is 135 days. not including today. That will be of course taken off the sentence you will now serve.
41 If you had not pleaded guilty, but been found guilty after a trial the sentence I would have imposed on you is five years with a minimum of three years imprisonment.
42 Yes, the copies of the ancillary orders can be handed down with one reserved for the court file.
43 MS LINZNER: As Your Honour pleases.
44 HER HONOUR: There are no questions?
45 MS LINZNER: No, Your Honour.
46 MR RATTRAY: No, Your Honour.
47 HER HONOUR: Yes, all right, thank you. Thank you, Mr Swanson. He can be removed.
48 MR RATTRAY: If the court pleases. Your Honour, thank you for allowing me to appear unrobed. It is going to make my transition next door to the Magistrates' Court a little bit easier.
49 HER HONOUR: Yes, certainly. Thank you, I will stand down then till 10.30.
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