DPP v Wagner
[2019] VCC 1335
•15 February 2019
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02219
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Adrian Albert Patrick Wagner |
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JUDGE: | HER HONOUR JUDGE MARICH | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 18 September and 18 December 2018 | ||
DATE OF SENTENCE: | 15 February 2019 | ||
CASE MAY BE CITED AS: | DPP v Wagner | ||
MEDIUM NEUTRAL CITATION: | [2018] VCC 1335 | ||
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic Ms A. Bhai Mr A. Malik Ms L. Spence | Office of Public Prosecutions |
| For the Accused | Mr A. Marshall | James Dowsley & Associates |
HER HONOUR:
Introduction
1.Adrian Wagner, you have pleaded guilty to an indictment containing one charge of intentionally causing serious injury, which carries a maximum penalty of 20 years’ imprisonment.
2.The circumstances in which you came to commit that offence are set out in the Summary of Prosecution Opening dated 17 September 2018, which was read into evidence at your hearing and Exhibited as Exhibit A. The prosecution relied on a written outline of submissions dated 7 February 2019, (Exhibit E), in addition to making oral submissions. I also received as prosecution exhibits a Victim Impact Statement of Charles Lovett dated 18 September 2018, (Exhibit B), a series of photographs, and a Forensicare Report dated 14 December 2018 (Exhibit D).
3.In addition to making oral submissions, your Counsel relied on a written Outline of Plea dated 19 March 2018, (Exhibit 1), and filed a Psychiatric Report prepared by Dr Lester Walton dated 6 September 2017, (Exhibit 2), a further Report prepared by Dr Walton dated 26 September 2018, (Exhibit 4), and an Arbias report dated 29 January 2019 (Exhibit 5), all of which were exhibited.
4.I have had regard to each of those Exhibited documents in formulating my reasons for sentence.
Circumstances of the offending
1.At the time of the offence you were residing at Unit 14, 151 Princes Highway, Dandenong. The victim in this matter, Charles Linden Lovett, was residing at the same complex as you, at Unit 25, 151 Princes Highway, Dandenong. You were both 38 years of age.
2.The two of you had known each other for about three years at the date of the offence, and were usually pretty friendly with each other. The victim had lent you money on approximately three occasions for cigarettes and drugs.
3.I was told that over the course of the week before 23 April 2017, you had “been on a bender” and had been yelling and screaming at other people living in the units.
4.On Sunday, 23 April 2017, at approximately 7.30 pm, Mr Lovett was dropped back at his unit by a friend. During that day he had been drinking with a Simon Green and another person at their unit, but had become difficult because he was drunk, so Mr Green had asked him to leave.
5.As he walked back to his unit, he could hear you verbally abusing him he said. On hearing the abuse, he decided to confront you about the money you owed him. He walked up the stairs to where you were standing outside your unit. He asked you, he says, “When are you going to pay me back? My debts are mounting". You had another versions of events. But when he said this, it is said, you got angry and “let go like an animal”.
6.Mr Lovett could not remember how he got on the ground, but could remember being there, and whilst he was on the ground you slammed his head on the security door of your unit a number of times. You kicked him to the head whilst he was on the ground. You were yelling and screaming “Get off my balcony or I’ll fucking kill you,” and seemed to be completely out of control of your faculties.
7.Other residents of the units had heard the confrontation, and watched you kick Mr Lovett three or four times to the head and then jump up in the air and “stomp” on him. Once you had done this, you went into your unit briefly, but then came back outside and did it again. A witness, Paul Wilson, saw you do this three or four times.
8.You then stopped, and walked down to the driveway to the units, yelling “Simon, call an ambulance. I’ve killed Charlie, I stomped on him, he’s dead.” The victim managed to get up and walk down the stairs to the driveway. As he did this, you yelled “Get the piece of shit off my balcony, don’t worry about an ambulance.”
9.Other residents then assisted Mr Lovett back into his unit, and Mr Green’s partner then called an ambulance.
Investigation, arrest and interview
1.At about 9.29 pm, police received a dispatch from Police Communications and attended at the address at 151 Princes Highway, Dandenong. They observed you pacing outside your unit with a beer in your hand.
2.Mr Lovett was taken by ambulance to the Dandenong Hospital.
3.Police arrested you, and you told them that they were probably there for you as Mr Lovett had crushed you emotionally, so you had crushed him physically. You were then taken to the Dandenong Police Station, where on 24 April 2017, approximately six hours after the incident, at 12.54 am, a record of interview was conducted.
4.During the record of interview, you told police:
•• You were having a beer and watching TV on mute and playing music before going to bed, and all of a sudden there was a banging at your door, and when you opened it you told Mr Lovett not to bang on your door, and you had told him not to do it before, and asked him nicely to go home, and Mr Lovett was mouthing off about your family and provoking you to hurt him, and you were not going to stand for it, so you gave Mr Lovett a hiding. (A47-58, 97).
•• That Mr Lovett is an alcoholic, and comes and wants to drink your beer, and is just a neighbour, and you told him not to do it and go home, and slammed the door in his face, but Mr Lovett started yelling all this stuff, and it was about your Mum and how you should kill yourself. (A59-61, 104).
•• You punched Mr Lovett in the face about six times, and dropped him “on his arse”, and kicked him in the head once, and you were yelling at him to get off your balcony, but he would not leave, and Mr Lovett was only in his own unit when the police arrived because he had finally done what he was told. (A64-83).
•• That if Mr Lovett comes at you again, “He won’t need an ambulance, he’ll need a hearse". A85.
•• That Mr Lovett had not hurt you physically, but had hurt you with his words. A89
•• That you “smashed his head in, fucked him up, smashed him and pummelled him, and he shouldn’t say shit and mention [your] mother". A107
•• That Mr Lovett has probably got a fractured eye socket, cheekbones, broken nose, and swollen forehead. A110.
•• When you were pressed on whether you had only kicked him once, you said that you could not remember how many times you kicked him, and you were extremely upset, and you saw him two days ago at the letterbox, and you had to call an ambulance for him before, when he was drunk and had hit his head, and you had saved his life about a year ago. A114-123.
•• That you had tried to help Mr Lovett multiple times, and he was drunk and very verbal, and you had tried to shut the door and shut him out, and that you had handled it in a “calmful” manner previously, but you were not going to be calm and collected “and put up with his shit forever and fuck the police,” you were not going to wait 45 minutes for them to turn up. A171-194
•• You said you do not have an anger management problem, and you respect people until you are disrespected, and Mr Lovett is a drunken idiot.
Effect on the victim
1.When the victim, Mr Lovett, was medically examined, the following injuries were observed:
Multiple facial bone fractures
•• Fracture of the bottom wall of the right eye socket.
•• Left cheek bone fracture.
•• Nasal bone fracture.
Herniation
•• Herniation of the fat in the eye socket.
•• Herniation and trapping of a muscle necessary for eyeball movements.
Haematoma
•• Blood collection under the scalp (right frontal subgaleal haematoma).
•• Blood collection in the soft tissue area of the left cheek.
1.Double vision relating to eye socket trauma was still noted on 5 May 2017. The eye socket required orbital floor reconstruction with the insertion of a metal plate, and various medications were needed, including painkillers, antibiotics, and anaesthetics.
Ankle fractures
•• Left Weber B ankle fracture, necessitating the use of crutches and rehabilitation at the Dandenong Hospital Physiotherapy Unit until 27 July 2017.
Broken/fractured teeth
•• The dental surgeon opined that trauma caused one tooth to die and get infected, requiring root canal treatment.
•• Another tooth was broken/fractured as a result of trauma, which may also require root canal treatment and restoration.
Victim impact statement
1.Charles Lovett provided a victim impact statement to the court, and this was read into evidence by Mr Lovett at the plea hearing.
2.In addition to his detailed description of the physical effects of the assault, he notes some of the practical effects of his extensive and debilitating injuries. His dental treatment for root canal impacted upon him financially about $800, he said. He is on a disability support pension, and this incident left him destitute as he needed to pay additional medical expenses, on top of his day-to-day expenses.
3.His injuries have left him unable to work in his IT business, as a result of the injuries themselves, the effects of the painkillers that he was taking, and his difficulties in concentrating.
4.In his victim impact statement, Mr Lovett describes that the incident has left him “pretty messed up”, feeling isolated, and doing nothing socially. He has stopped mixing with friends, and, when he thought about the upcoming court case, he noted that he felt his anxiety building and he was becoming more scared.
5.He noted that his clinical depression has been exacerbated, requiring closer monitoring by his psychiatrist.
6.He describes having flashbacks of the incident. He is self-conscious about the scarring on his face and the loss of his teeth, and he does not like the way he looks.
7.I consider that the injuries suffered by Mr Lovett are serious indeed.
Plea of guilty and remorse
1.You were charged following your interview. On 1 November 2017, at a “submissions only” committal hearing in the Magistrates’ Court, and without any witnesses being called, you indicated your intention to plead guilty to the preceding count of intentionally causing serious injury.
2.I accept and take into account that you pleaded guilty at an early stage and, as submitted by your counsel, that this plea is indicative of remorse as well as having utilitarian value. Though your presentation and your record of interview did not necessarily reflect complete remorse, further to the issue of remorse, you told Dr Walton, “I’m smothered in remorse and sorrow for my actions. It was very foolish". You also expressed your remorse to Dr Remy Glowinski, who interviewed you for your Forensicare assessment. In addition to your sorrow for the extremity of your actions, you miss Mr Lovett’s friendship and I allow proper weight to be given to the indication of remorse.
Personal circumstances
1.You are now 39 years of age, and were 38 at the date of offending. You are unmarried, though you had a lengthy relationship up until around 2003, which I was told involved drug consumption.
2.Your parents are still alive, and separated from one another when you were four years old. You were raised in Doveton and you described your childhood as “pretty hard,” as your father was an abusive alcoholic.
3.You rely greatly on your mother for your day-to-day activities. Your mother is a part-pensioner, working part-time in a mailroom in Dandenong. She has a lesbian partner, and you also have a good relationship with her partner. Your mother will continue to support you after the resolution of this hearing.
4.You have limited contact with your father, who comes to family occasions from time to time.
5.Your maternal grandfather provided you with love and support; however, he died when you were 18 years old.
6.You were the youngest of three children. Your sister is a carer for the elderly, and has four children aged between 10 and 17 years. Your brother is a farmer, who has a daughter aged nine. You have an excellent relationship with them, and you see them frequently.
7.You were educated at a Catholic primary school, and then attended Doveton High School until part-way through Year 10, when you left to start work. You initially worked in warehousing until you were 18 years old, and the company for whom you worked stopped operating. You then worked for AV Syntec Chemicals for 18months, and then at National Australia Car Parts, stripping cars, for two years. I was told you then worked for a warehousing firm in Braeside for four years. This demonstrates that you had an excellent work history; however, unfortunately, issues relating to your mental illness, which I will discuss in due course, manifested in about 2005, and you commenced experiencing hallucinations. You have been on a disability pension since 2007 which is managed by your mother.
8.You continue to do occasional work, including working with your cousin at the Dandenong Market for cigarettes.
9.You have suffered several broken bones from skateboard and driving accidents. The last incident was a broken leg in 2016.
Prior criminal history
1.You have one prior court appearance. On 30 October 2000, you were convicted at the Dandenong Magistrates’ Court of the offence of wilfully damage property, and fined $400. I am told that this involved an incident where you broke a window, after falling asleep whilst drunk on a train, and you were woken by a security officer. You have never received a custodial sentence.
2.I am prepared to ignore this prior matter, given its modest seriousness, the passage of 18years since that conviction was imposed, and the fact that it was a finding of guilt for an offence entirely unrelated to the current incident. Accordingly, I sentence you on the basis of no previous criminal history which weigh substantially in your favour.
Medical and psychological history
1.Dr Walton notes that as far back as 2000, you were diagnosed with anxiety and depression, but by 2006, psychotic symptoms had emerged, and you attracted the additional diagnosis of schizophrenia.
2.You have attracted repeated psychiatric hospitalisations from the mid-2000s, variously at Casey, Monash Clayton and Dandenong Hospitals, in relation to relapses of schizophrenia. You told Dr Glowinski from Forensicare that you are treated with the antipsychotics Abilify and Zyprexa, and the anti-anxiety agent, Valium. However, despite receiving extended psychiatric treatment, you told Dr Walton that you have been experiencing auditory hallucinations on a daily basis for the past twelve years. Although when you are medicated, the voices tend to be quite benign and you can ignore them, as you were doing during your interview with him.
3.When considering any link between the hallucinations and the offending, Dr Walton stated, “While at the time of the alleged offending, Mr Wagner was experiencing hallucinations on a daily basis, he did not describe any so-called command hallucinations or other perceptual distortion with obvious relevance to the offending. Similarly, he was not troubled by relevant deluded thinking at the material time".
4.Dr Glowinski noted that your ongoing auditory hallucinations were currently telling you to kill yourself, and you said that those voices have heightened in anticipation of sentencing with some anxiety about being placed in prison.
5.In relation to your cognitive capabilities, Dr Walton considered you to be of normal intelligence and he described you as cognitively intact. Dr Glowinski expanded upon the significance of chronic schizophrenia and the other symptoms in your circumstances:
“It is … well established that chronic schizophrenia is associated with diminished executive cognitive functioning. This history alone suggests that Mr Wagner would have deficits in cognitive functioning, particularly in areas of planning and reasoning. The addition of a significant alcohol use history strongly suggests the presence of cognitive impairment in Mr Wagner. His presentation during interview is not inconsistent with this conclusion, although I did not conduct a comprehensive cognitive examination and do not consider myself expert in these types of examinations. Nevertheless, I disagree with Dr Walton’s statement that there is no evidence to suggest acquired brain injury or cognitive impairment in Mr Wagner. This matter could be further elucidated for the court through a neuropsychological assessment and report. The degree to which acquired brain injury was involved in the offending is not clear to me, especially in the presence of acute alcohol intoxication".
1.As a result of that opinion, the report of Dr Matt Treeby of Arbias was made available to the court, at the request of your legal representatives. Dr Treeby assessed your intellectual functioning, and concluded:
• • Your premorbid intellectual function was estimated to fall in the low-average range.
• • Your intellectual ability fell overall in the low-average range, relative to your similar aged peers (10th percentile).
• • Your verbal comprehension skills were an area of weakness and fell overall in the borderline range (5th percentile).
• • Your perceptual reasoning skills fell overall in the low-average range (18th percentile).
• • Your auditory attention span was intact and fell within the superior range, although your working memory and information processing speeds fell in the low-average range.
• • Your new learning and memory was impaired and fell into the borderline range.
• • Your basic literacy and numeracy fell into the low-average range.
• • Your levels of stress, anxiety and depression were all elevated to a moderate degree.
1.In Dr Treeby’s opinion, your assessment confirmed that you had a mild acquired brain injury which can be attributed to your chronic schizophrenia and past substance misuse.
2.In Dr Treeby’s opinion, you satisfied formal DSM-5 criteria for a diagnosis of mild neuro-cognitive disorder due to multiple aetiologies (schizophrenia and substance use).
3.Dr Walton noted that there is also a documented history of substance abuse. You commenced drinking alcohol at the age of 11 years old, and the pattern in your recent years has been drinking all day, four days a week to a point of intoxication, typical consumption being around 14 stubbies.
4.You had consumed alcohol on the day prior to the incident, though not to that extent – you accepted in your interview with Dr Matt Treeby from Arbias, that you had consumed “eight or nine beers” on the day of the offending and I was told that you had a blood alcohol content of .07% perhaps several hours after the incident, perhaps a little more. This information does not appear in the depositional material, but it is not disputed by the prosecution I am told and you have told each of the experts who assessed you of the .07 blood alcohol content.
5.You have suffered the effects of alcohol abuse for a long time, and have engaged in detoxification programs with De Paul House in Fitzroy on at least two occasions.
6.When you were first assessed on 5 September 2017 by Dr Walton, you were pleased to report that you had completely abandoned alcohol use six weeks prior to your assessment. You went through a period of uncontrollable shaking, night sweats, and full-blown delirium tremens. Notwithstanding this difficult process, you told Dr Glowinski you had a six pack of beer at your niece’s party the day before the Forensicare assessment.
7.You reported that you have experimented with a variety of drugs over the years including: cannabis, LSD, heroin, magic mushrooms, amphetamine and methamphetamine. When you were 21, you were addicted to amphetamine for around six months, but otherwise you have not been drug-dependent. In 2017, you said to Dr Walton, you were using methamphetamine intermittently, after having used that drug daily, but at the time of the September 2017 assessment, you were pleased to report that you completely ceased illicit drug use around three months earlier.
8.However, you told Dr Glowinski on the other hand that you had dabbled with ice a few times with friends, but it was never a regular habit, and that you said you might have used twice a month. You told Dr Glowinski that you stopped using ice a few months ago, that is a few months before 14 December 2018.
9.According to Dr Glowinski, you expressed a reasonable level of insight into your illness and the need for medication. However, there seemed to be a relatively poor understanding of the nature and quality of your substance abuse problems and how they contributed, particularly to the index incident Dr Glowinski said, and that there seemed to be a pattern of you minimising your substance use problems.
10.You remain at a loss, according to Dr Walton, to explain why you became so intensely angry in the face of your described taunts by Mr Lovett. You told Dr Glowinski that you assaulted the victim because of what the victim had said about your mother, and that you then added that:
“I shouldn’t have assaulted him to that point. I shouldn’t have stomped on his leg, but he made me really upset. He wouldn’t get up so I told him I'd make sure he wouldn’t get up … I've got a lot of remorse and guilt and anxiety and depression about this leading up to court. I sort of also miss him as a friend and I'm pretty sorry for what I've done.”
Reason for offending
1.I am satisfied that your reason for offending was your intense reaction to the words that you attributed to Mr Lovett in your police interview. You have accepted that, when he said this, you got angry and “let go like an animal”. You then, as I have said, reduced him to the ground and then slammed his head on the security door of your unit a number of times. You kicked him to the head while he was on the ground and I have already summarised that evidence.
2.Your response to his provocative words was deeply and violently excessive and caused his very substantial injuries from which he has yet to fully heal. The protracted nature of the violence that was perpetrated upon Mr Lovett, and the extent of his injuries are serious and very deeply troubling.
The application of Verdins principles Verdins, Buckley and Vo (2007) 16 VR 269, [32]
1.As the Court of Appeal has held in DPP v O’Neill [2015], VSCA 325, [59], [68], I am obliged to undertake a rigorous evaluation of the evidence in considering whether the evidence establishes that your mental capacity has been impaired, and which of the circumstances set out in Verdins is activated, if at all. The hearing of your plea in mitigation was adjourned on a number of occasions so that I could be certain that the application of Verdins principles of your case could be properly explored.
2.In Dr Walton’s initial report, he expressed the view, that: “it is my opinion that this man’s mental disorder is centrally relevant to the offending. It is highly likely that Mr Wagner would have been more than usually sensitive to any adverse comment about his mother and overreacted with anger. It is well recognised that persons suffering from chronic schizophrenia, even when the illness is not florid, are prone to exercising poor social judgment without properly considering the consequences of their actions. Mr Wagner’s behaviour seemingly arises as quite out-of-character, which tends to underscore the relevance of any psychiatric illness.”
3.I considered that Dr Walton’s report fell short of compliance with this Court’s Practice Note dealing with Sentencing Hearings and Expert Reports on Mental Functioning of Offenders, given his lack of consideration of qualifications to his opinions, based upon your admissions of substance use prior to the incident, including alcohol, and requested of him (inter alia) that Dr Walton consider whether, if you had been ingesting “ice” in the time prior to the assault, this would have impacted upon your condition. In his report dated 26 September 2018, Dr Walton stated that:
“The effect of methamphetamine upon a person suffering from paranoid schizophrenia may be two-fold. Firstly, there is the simple stimulant effect, the direct pharmacological response to the drug which may disinhibit aggression and actually induce paranoia. Secondly, the drug may aggravate the underlying schizophrenia, in particular, hallmarks symptoms as hallucinosis and also deluded thinking, which could include paranoia as well. While Mr Wagner did report having experienced hallucinations and some deluded thinking around the material time in his account to me, my impression was that that remained of modest proportions. However, as a general proposition it is highly likely that ingesting ‘ice’ would aggravate schizophrenia.
1.Dr Glowinski from Forensicare noted that you have described infrequent, but regular use of methylamphetamine over the last few years, but have denied any escalating use of methylamphetamine in the week prior to the incident. Dr Glowinski was prepared to conclude that, in the absence of evidence of methylamphetamine use just prior to the incident, he took your account at face value and accordingly I eliminate any consideration of whether methylamphetamine was used prior to the incident. However, you acknowledged that you had consumed about eight or nine beers in the hours preceding the incident. Dr Glowinski thought that substance intoxication contributed significantly to disinhibition and impairment in reasoning and judgment, during the course of the offending in your case.
2.Dr Walton opined that, if you had been breath tested as having a .07 blood alcohol content, that this relatively low level of blood alcohol, he said, might have a minor impact in elevating the disinhibition of aggression and possibly misjudging the actions of others, but he would rate this as minor as a contributor to the offending. But Dr Walton’s opinion does not make any allowance for a diminution in blood alcohol content in the hours between the offending and any testing. Further, Dr Glowinski’s opinion is that your history regarding your alcohol use is somewhat unreliable and further, you did not tell Dr Walton about the consumption of eight or nine beers prior to the incident.
3.Dr Glowinski concluded that there was little in your account to suggest any significant influence of psychotic symptoms, such as command auditory hallucinations.
4.Each of the experts is in agreement that, by reason of your condition, you will endure incarceration as more onerous than others.
5.Furthermore, Dr Glowinski opined that imprisonment will likely interrupt your psychiatric treatment and may jeopardise your accommodation, which was a stabilising influence on your mental illness.
6.Your counsel urged me to apply all Verdins (see Verdins, Buckley and Vo (2007) 16 VR 269, [32]) factors, to reduce the relevance of denunciation, general and specific deterrence in your case, to find that your moral culpability was reduced, and to observe that the existence of your condition will mean that a given sentence will weigh more heavily upon you, than it would on a person in normal health. It was also submitted that there was a serious risk that imprisonment would have a significant adverse effect on your mental health, and your condition would have a bearing on the kind of sentence that was imposed, and the conditions in which it should be served. In short, all Verdins principles were relied upon.
7.The prosecution accepted that you have a psychiatric illness, but submitted that the expert evidence in this case failed to establish a realistic connection between the mental impairment and the offending behaviour such as to enliven principles 1-4 of Verdins.
8.I have given the application of Verdins principles in this case very careful consideration, as is my obligation.
9.For the first four principles to apply, there must be a connection between the mental impairment and the offender’s moral culpability for his or her offending, or between the mental impairment and the need for general or specific deterrence. To demonstrate that connection, an offender must establish that at the time of the offence, the mental impairment:
• • affected his or her ability to appreciate the wrongfulness of his conduct; or
• • obscured his or her intent to commit the offence; or
• • impaired his or her ability to make calm and rational choices, or to think clearly.
1.In the circumstances of this case, the evidence at its highest points to your mental impairment impairing your ability to make calm and rational choices, or to think clearly. In addition to your chronic schizophrenia, I note your mild acquired brain injury as a result of your schizophrenia and past substance misuse, and diminished intellectual functioning. Dr Treeby certainly concludes that you had poor behaviour inhibition at the time of the alleged incident, with your mental illness seeming to be particularly relevant.
2.However, you also acknowledged that you had consumed about eight or nine beers in the hours preceding the incident, which led to Dr Glowinski’s conclusion that (self-induced) substance intoxication contributed significantly to disinhibition and impairment in reasoning and judgment, during the course of the offending in your case. Given Dr Walton’s lack of qualification of opinion to his understanding of your blood alcohol content being .07, as I have discussed, I accept Dr Glowinski's opinion and conclude that any disinhibition is not exclusively attributable to your medical condition. Notwithstanding the consumption of that amount of alcohol on that occasion, you have continued to drink, from time to time since the incident, which also troubles me.
3.I find that I am prepared to allow some modest moderation of your moral culpability, and of the weight to attach to general, and specific deterrence, on the basis of Verdins factors 1, 3, and 4.
4.I find, consistently with the opinion expressed by all three of the experts, that your condition will mean that a sentence will weigh more heavily upon you than it would on a person in normal health, and considerable mitigatory weight will attach to the operation of Verdins factor 5 in this case. Though the evidence falls short of establishing a serious risk, that imprisonment will have a significant adverse effect on your mental health (Verdins factor 6), given Dr Glowinski’s opinion that imprisonment will likely interrupt your psychiatric treatment and may jeopardise your accommodation, which was a stabilising influence on your mental illness, I am also prepared to allow for modest mitigation of sentence on the basis of Verdins factor 6 as well.
Prospects of rehabilitation
1.I consider that, notwithstanding the seriousness of this offending, you have very good prospects of rehabilitation.
2.I reach this conclusion based upon the combination of the following facts in your case:
•• your very limited and dated criminal history; which I have said I have ignored for the purpose of sentencing;
•• there is no subsequent offending, you have no police charges pending; and I have been told that you have been living in a rooming house with a strict curfew, essentially shortly after the offending and you have not come to their attention for any reason;
•• I take into your plea of guilty at an early opportunity;
•• I take into your remorse for the severe pain and injury suffered by Mr Lovett as a direct result of your offending;
•• Your management of your consumption of alcohol since the offending; and
•• that you have strong support from family.
1.There needs to be some caution in expressing the prospects of rehabilitation, because of your temptation to return to alcohol from time to time which I do not think does you any favours. I consider that you will return to your meaningful life after your sentence concludes.
Relevant sentencing principles
1.I take into account the other purposes beyond rehabilitation for which sentence must be imposed, including the need for deterrence, particularly general and also specific, but moderated as I have mentioned.
2.I must also denounce your conduct and impose a punitive sentence.
Sentencing submissions
1.Intentionally causing serious injury is a category 2 offence under the Sentencing Act 1991, and pursuant to s 5(2H) of that Act, in sentencing I must make an order for immediate imprisonment, (other than a sentence of imprisonment imposed in addition to making a community corrections order), unless 5(2H)(c)(ii), "The offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment". There is an onus on you to satisfy me on the balance of probabilities that this provision operates to exclude this case from that rule.
2.Your counsel submitted that your mental condition justified the operation of s.5(2H)(c)(ii) of the Sentencing Act, thereby justifying the imposition of a sentence other than immediate imprisonment, or at highest, a combination of immediate imprisonment of up to 12months from the date of sentence and a community corrections order. That was opposed by the prosecution.
3.Certainly your illness, which I have discussed in close detail will mean that a term of imprisonment will weigh more heavily upon you than it would for a fellow prisoner without such a condition. (See the report of Dr Glowinski at [77], and the report of Dr Treeby at [9]). Mitigatory weight has been allowed for that fact, in the operation of Verdins factor 5 and 6, as I have mentioned. However, the material provided to the court in this case falls short of proof on the balance of probabilities, that your impaired mental functioning would result in you being subjected to a "substantially and materially greater burden" than the ordinary burden or risks of imprisonment. Accordingly, I am bound to apply s 5(2H).
4.I have been mindful of the fact that this is your first term of imprisonment and I trust and infer that it will be of great salutary effect upon you. Given my conclusion as to your prospects of rehabilitation, I intend to impose an extended period of parole eligibility.
Sentence
On the count of intentionally causing serious injury, you are convicted and sentenced to five years and nine months’ imprisonment. I order that you must serve three years and three months’ imprisonment before you are eligible for parole.
S.6AAA declaration
1.Pursuant to s 6AAA of the Sentencing Act 1991 of Victoria, I declare that had you pleaded not guilty to these charges and been found guilty of them, the total effective sentence that I would have imposed would have been seven years’ imprisonment with a non-parole period of four years and six months.
Ancillary orders
83.In relation to ancillary orders, I will make the disposal order as requested.
84.Under s 464ZF in view of the seriousness of the offence, I make the order. Is it a retention or the taking of a sample?
85.MS SPENCE: The taking of a sample, Your Honour.
86.HER HONOUR: I order that the taking of a swab from the accused and should the accused refuse to give such a swab from the inside of the mouth, then a blood sample may be taken by force if necessary. Thank you, I will stand down.
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