DPP v Whittle

[2017] VCC 2017

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00542

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY WHITTLE

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July, 23 November, 20 December 2017
DATE OF SENTENCE:	21 December 2017
CASE MAY BE CITED AS:	DPP v Whittle
MEDIUM NEUTRAL CITATION:	[2017] VCC 2017

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Subject:  Sentencing

Catchwords:  Plea of guilty; Intentionally causing serious injury in circumstances of gross violence; repeated kicking and stomping on head of victim on ground; whether “special reason” exists to not impose mandatory minimum term; findings necessary under (c)(i) of “special reason”;  meaning of “causally linked”; intellectual deficit due to acquired brain injury; prosecution concession as to acquired brain injury.

Legislation Cited:  Sentencing Act 1991 ss 10(1), 10A, 6AAA.

Crimes Act 1958 s 15A

Cases Cited:DPP v Hudgson [2016] VSCA 254; DPP v O'Neill [2015] VSCA 325; R v Verdins [2007] VSCA 102; Ferrer v R [2016] VSCA 295

Sentence:  5 years imp; non-parole 3 years & 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	OPP
For the Accused	Mr A. Jackson	Tony Hannebery Lawyers

Pages 1 - 21

 

 

HER HONOUR: 

1Corey Whittle, you have pleaded guilty to a charge of intentionally causing serious injury in circumstances of gross violence. 

2The maximum penalty for this offence is 20 years' imprisonment.  Further, a term of imprisonment must be imposed and a minimum non-parole period of four years, unless the court decides that for a special reason, it should not apply.  I shall discuss those considerations later.  It has been conceded on your behalf that a substantial term of imprisonment must be imposed and I know you have been led to expect that.

3This charge arises out of events on 26 October 2016, in the front yard area of a house in Kookaburra Avenue, Werribee.  The events were recorded on CCTV from a building opposite, so are able to be described in some detail.  Late that morning, you and your then-partner, Samantha Vella, had been driving along that street when your car lost power and you pushed it into the driveway of a house.  You were apparently acquainted with the resident there but had not intended visiting that day. 

4Mr Freddie Koeleman, a man with whom you had some history, happened to be leaving the house at about that time.  A verbal altercation between you, your partner and Mr Koeleman commenced.  This developed into a physical fight between you and Koeleman with both of you striking each other, and then wrestling each other on the ground.  Your partner was yelling out that Koeleman had knives.  Although you were unaware of it, while you were wrestling on the ground, Ms Vella entered the house, obtained a knife and returned at a point where the two of you were again on your feet, but she approached and stabbed Mr Koeleman in the back.  It is not alleged that you knew she had a knife or was going to use it on him. 

5Mr Koeleman was still standing, and you had got to your feet and had separated from him.  However, as he was bending forward to pick up his shirt from the ground, you aimed a forceful kick at his lowered head, striking him to the head causing him to fall to the concrete driveway and it is believed that your kick rendered him unconscious at that time.  You then approached him on the ground and began to kick him there while he was not moving.  Further, you began to stomp on his head.  From the CCTV footage, the number of times you kicked him has been able to be counted.  At that stage, you kicked him six times to the head and violently stomped on his head nine times.  You were seen to use your car bonnet to brace yourself for extra force while stomping on him.

6Some other people emerged from the house and attempted to stop this.  They pulled you away from Mr Koeleman who was lying unconscious on the ground.  However only seconds later, you broke free and returned to Mr Koeleman and the two men who had restrained you walked away.  You resumed violently stomping on his head, this time, seven times. 

7Ms Vella then approached and had a brief conversation with you, and you and she then walked away from Mr Koeleman's unconscious body.  You then walked with the two other men to the front door of the residence.  However, you did not enter, and after a conversation there while the knife was being retrieved from your partner, you walked approximately ten metres back to Mr Koeleman's unconscious body, and commenced again stomping on his head, again bracing yourself on the car bonnet.

8From the CCTV footage, it has been seen that over the three stages I have described, you inflicted a total of eight kicks to his head and stomped on his head a total of 19 times while he was unconscious on the ground.  You then walked back to the front of the residence and spoke to another man there.  Your partner then approached the still unconscious body of Mr Koeleman and verbally abused him.

9There was then assistance given to you and your partner to push your car which could not be started out of the driveway, and it was positioned further up the road.  You and she departed from that address, but only after she had thrown the knife onto the roof of the house wrapped in a white cloth which was provided to her by someone inside the house.  All of this time Mr Koeleman was lying on the driveway with people stepping over him without attending to him.  Eventually the home resident came out of the house and briefly attended to Mr Koeleman then walked away.  Other people left the premises and drove away in another vehicle. 

10A few minutes later, a member of Victoria Police was driving past, observed Mr Koeleman lying in the driveway, and attended at the premises and spoke with the householder who said that an ambulance had been requested.  When an ambulance and more police arrived, Mr Koeleman was rushed to Royal Melbourne Hospital in a critical and life-threatening condition.  On the way, the ambulance had to stop for him to be intubated. 

11There was reluctance by others who had been present to cooperate with police.  However as I have said, CCTV footage from the house opposite was obtained and shows the incident in its entirety.  I am told that you had watched that CCTV footage before it was shown in front of me in court, and that you have expressed surprise to see yourself acting as violently as you are shown to do.  I have watched that CCTV footage again since the hearing and in preparing these reasons.

12I must assess both the objective and subjective seriousness of this offending.  The maximum penalty of 20 years' imprisonment reflects that causing serious injury intentionally is regarded by Parliament on behalf of the community as objectively a very serious offence.  Your kick to Mr Koeleman's head while he was bending forward and not in physical contact with you was in itself very serious, visibly delivered with force when he was in a vulnerable position and posed no imminent threat to you.  What followed after he had fallen to the ground, three separate bursts of you kicking him and stomping on his head while he was lying immobilised and probably unconscious on the ground, was brutal, cowardly, reflects repeated outbursts of angry violence towards another person who was defenceless at the time, and that you returned twice to resume that kicking and stomping is particularly callous and disturbing.

13Further, the injury inflicted was very serious indeed as is reflected in his being rushed to hospital in a life-threatening condition and the ambulance having to stop for him to be intubated.  He required urgent surgery to relieve a subdural haematoma both that day and again the next, suffered further complications as a result of intubation, and has clearly continued to suffer serious consequences through an ongoing rehabilitation process. 

14I take into account that no weapon or implement was used by you to inflict injury, and that this was not a planned confrontation.  I also accept that Mr Koeleman was at least as responsible as you for initiating confrontation, and for progressing a verbal confrontation into a physical one.  Nevertheless, as I have said, objectively this was a very serious instance of this offence.

15From a subjective point of view, as I have said, this was not a confrontation which you planned or sought out and I find that you did not initiate it.  I am satisfied that your belief that it was Mr Koeleman who had attacked you with a hammer and had seriously injured you some two and a half years earlier, probably influenced your actions in that you unexpectedly found yourself in confrontation with a man of whom you had some fear, and heard your partner saying that he had knives with him, and with whom you had already entered a physical exchange of blows and wrestling.  I accept that you had reason to exercise greater caution about his actions than you might towards someone else.  A neuropsychological opinion which I shall discuss further is to the effect that you had some fear of Mr Koeleman.  That opinion describes you having an emotional reaction towards Mr Koeleman, which I take to include the fear mentioned.  For these reasons, I consider that the subjective seriousness was lower than the objective seriousness, but this was still a brutal instance of this offence.

16In a victim impact statement, Mr Koeleman describes in fact needing assistance to write it due to ongoing difficulty finding the words for his thoughts.  He describes the impact of his injuries on him and on the people closest to him.  He needs help with much of his daily living, and now lives in the household of his two sons and their mother so that they can all help him.  His sons are now young adults, but the younger has autism and there has been particular impact on him because the closeness of their friendship has been disrupted.  He says that his elder son has stopped work to take care of him. 

17OFFENDER:  No, he's running around with his son robbing people, shooting people (indistinct).

18HER HONOUR:  Well, Mr Whittle, I have not had that information provided to me.  I have to take into account what is in the victim impact statement which I am summarising here.

19OFFENDER:  Yeah, all right.

20HER HONOUR:  He had been diagnosed with post-traumatic amnesia and has no memory of the actual assault or going to hospital, and has also lost considerable other memories from the past.  Physically he says he can no longer live independently, that his eyesight on the left side has diminished so he cannot drive safely and, when his victim impact statement was made which was in July of this year, now some five months ago, he was still undertaking physiotherapy, occupational therapy and speech therapy.  He does not want to be as dependent as he was at the time of writing his statement on his former partner, and says he wants to work and have his life back to normal but was still a long way from that. 

21I have also read a victim impact statement from Mr Koeleman's former partner, the mother of his two sons with whom he was living at the time the statement was written which was July of this year.  She describes his dire condition when she first saw him in hospital, the effect on herself, her elder son and his mother and the fears that he would not survive two rounds of urgent neurosurgery.  She also describes that when ten days later he was moved from ICU to a neurology ward, they were confronted with the prospect that he may never fully recover.  She describes how distressing for her it was and for her sons, whose distress she witnessed at seeing their father like that.  He was eventually transferred to a rehabilitation hospital where he had to learn to eat, feed himself and begin to speak, at first not making much sense.  She describes the slow process of recovery, and her sons' involvement with it, but at the time of her statement she did not foresee him ever fully recovering or becoming the same person he had been.  Further, at that stage, she said he was not able to work and he had previously been earning a satisfactory living to help support them all. 

22As I have already said, it is clear that your offending inflicted life-threatening injuries on Mr Koeleman, which have required intense treatment and left him with ongoing physical and mental impairments from which he had not at the time of his statement, and may never fully recover.  I accept that this has had very considerable consequences not only to him but also to his sons and their mother. 

23You have pleaded guilty to this charge and are entitled to considerable leniency for that.  You indicated that you would plead guilty to this charge at a stage I am prepared to treat as attracting the full benefit of the utilitarian value of an early plea of guilty.  You saved the community the time and cost of disputed hearings, both committal and trial, saved the victim and his family the stress of a trial, and inconvenience to other witnesses.  Further I take your plea of guilty to indicate a willingness to facilitate the course of justice and an acceptance of responsibility for your actions.  It cannot be said that you did that immediately, as you left the scene without checking on Mr Koeleman's condition or whether medical help had been called for him.  When arrested and interviewed by police nine days later, you initially tried to make no comment, asserted that you acted in self-defence because he had three knives down his back, maintained that you had not stomped on him more than two or three times, and wavered between saying that you might have gone a bit too far to saying that this was not as bad as how he hurt you. 

24I accept that your plea of guilty does indicate a degree of remorse.  Although not initially, I accept that you have come to feel some degree of remorse for your offending, particularly from your comments after watching the CCTV footage of what you describe as it not being you in the sense of not being how you believe you behaved. 

25I shall tell you after I impose sentence what it would have been had you not pleaded guilty but being found guilty of this charge after a trial.

26I turn now to your personal circumstances.  You are now aged 40.  It is sad that you have spent your 40th birthday some months ago in prison where you have indeed apparently spent a number of periods in the past. 

27You were born in Bendigo to teenage parents who separated when you were aged about five and by then you had two younger siblings.  You then lived with your mother in various outer areas of Melbourne.  You told a psychologist that you left her home when aged 13 or 14, “couch-surfed” between friends for a while, and then lived with your grandmother in Werribee until aged 17 or 18.  You described yourself as “running amok” with other youths in the area.  You were expelled from your last secondary school in Year 10 when caught smoking marijuana.  In a letter from your mother who is again present seeking to support you, she gives a different timeframe, stating that until you got involved with drugs at around age 16 to 17, you had never given her trouble and always went to school.

28You worked as a carpenter and then on labouring jobs including as a concreter and landscape gardener, those jobs being between terms of imprisonment that you have served since age 20.  Your last job was in the meatworks in Brooklyn about four years ago. 

29As I have said, you have served a significant number of previous terms in prison, although all much shorter than you are facing on the present charge. 

30You have a long and entrenched history of drug abuse, using cannabis from about age 14 and amphetamines from age 16, heroin intravenously from age 17 up to your arrest for the current charge, and methylamphetamines from 2007 up to the time of your arrest.  You have been on methadone continuously for years, and that has continued while you have been in custody.  You were also apparently abusing Xanax pills at the time of the offending.

31In January 2014, you were the subject of a violent attack in which you were hit while in bed with a mallet to the head.  You believed that was committed by Mr Koeleman, who of course is the victim of the offence for which I sentence you.  Apparently no one including you was willing to make statements to police or give evidence in court about that incident so he was not ultimately prosecuted.  However, I accept that you suffered a serious head injury resulting in your initially being paralysed, treated at Royal Melbourne Hospital, and subsequently undergoing rehabilitation at Royal Talbot Hospital.  You suffered slurred speech, could not walk initially and your balance was affected for several weeks.  It was considered that an injury to your brain had been detected on CT scan. 

32In July of this year, you were assessed by consultant psychologist, Ms Gina Cidoni.  She administered certain intellectual capacity tests which generated results putting you in a borderline range where 97 per cent of your peers would do better.  Your verbal comprehension was extremely low while other features were higher, such as working memory which was your highest score.  Your mental processing speed was regarded as borderline.  She assessed your personality profile to be in the moderate range, and found underlying restlessness, periods of overactivity and impulsivity and a tendency to act in rebellious ways with antisocial traits in evidence.  You described to her experiencing periods of anger or irritability with unrealistic and overly optimistic thoughts, and difficulty seeing your own limitations.  She felt that you do not plan activities in advance or well and often act without considering the consequences of your behaviours, and that you show poor judgement and risk-taking behaviours. 

33You also described fluctuations in mood.  Ms Cidoni described your symptoms as consistent with depression and anxiety.  She considered that your suspiciousness of others and their motives, and feeling that someone else was able to control your thoughts, was a reflection of some psychotic symptoms. 

34She carried out what was called a violence risk appraisal which, although it has limitations, put you as falling into the medium risk category.  Specific factors indicating risk included the offences and injury that are the subject of this charge, previous conditional release failure, school maladjustment, drug use and prior criminal history. 

35Ms Cidoni noted a chronic drug abuse problem with daily methylamphetamine and heroin abuse for ten or more years, and that you had been dependent on heroin from age 18.  She considered that this exacerbates your already-mentioned symptoms, disturbed thinking processes, and judgement, and makes you disinhibited.  She understood that many of your previous offences were committed under the influence or related to substance abuse, and you have been to prison multiple times, but aggression or acts of violence did not feature heavily in your prior history.

36In relation to the current offending for which I am sentencing you, you told Ms Cidoni that you had taken Xanax, “ice” and heroin that day.  When you were confronted by the man who had previously harmed you, the issue with that man having continued to simmer through your hospitalisation and rehabilitation, you rightly or wrongly perceived that you were in danger.  However you did admit to her that your actions were extreme.

37She, as I have said, assessed you as at medium risk of reoffending in a violent manner.  She considered you potentially have an acquired brain injury and recommended investigation of that.  Her diagnosis was of chronic substance abuse disorder that alters your thinking and decision-making processes and makes you disinhibited.  She also found you have antisocial traits and there are signs of institutionalisation following your many terms of imprisonment and evident poor coping in the community upon release.  

38Partly as a result of her recommendation, you were assessed by a neuropsychologist, Mr Martin Jackson, in late October of this year.  You outlined to him your background and full educational history up to leaving school without completing Year 9.  You said you had been expelled for smoking marijuana.  You described yourself to him as an average student at school and pretty good in class but messing up out of class.  You described to Mr Jackson having had a number of past head injuries - in 2008 when hit in the head with a fire extinguisher and you spent a couple of days in Werribee Hospital; in 2009, when you were struck to the head with a baseball bat but you did not go to hospital, and in 2010 when you were hit in the face with a motorbike helmet and suffered a fractured skull and facial fractures for which you were admitted to Royal Melbourne Hospital for about a week and then discharged.  You did not receive any formal rehabilitation at that stage.

39There was then the incident in January 2014 which I have already described, and that, as assessed by Mr Jackson, was by far the most serious head injury.  You were attacked while you were in bed and hit several times on the head with a mallet.  As I have already said, you were taken to Royal Melbourne Hospital where you remained for about two weeks and then at Royal Talbot Hospital for rehabilitation.  Documents which Mr Jackson read suggested that your speech was slurred and that your balance was affected for several weeks. 

40Mr Martin Jackson also took details of your long history of substance abuse, which I shall not repeat in full.  You were, you said, using “ice” from 2007, and using a couple of points a day up until your arrest for the current charges.  You also used Xanax to help you come down off the Ice on that day.  You told Mr Jackson that you have had a couple of overdoses, and were given Narcan on each occasion, but you do not believe there were any long-term effects from those overdoses.

41You told Mr Jackson that apart from a rehabilitation program in Geelong in 2016, out of which you had only been for about a week prior to the incident that is the subject of this charge, you had not had other formal treatment or counselling for your drug abuse.  You told him that you would like to do a live-in rehabilitation program when you leave prison. 

42Mr Jackson took into account the records of Royal Talbot Rehabilitation Centre, and that you had wanted to self-discharge and subsequently were discharged only five days after being admitted, at which stage you required some assistance with dressing and otherwise were independent in your personal activities of daily living.

43A neurosurgeon's report of September 2014 indicated that you had made a good recovery in rehabilitation, although still got feelings of light-headedness, and pain and pressure in the back of the neck.  You reported that you were no longer using drugs but were on a methadone program.  Physiotherapy for your neck was recommended but there were no further neurosurgeon appointments made.

44Prior to entering prison for the present charge, you were living independently, and able to perform your personal activities of daily living, domestic activities, and were able to drive.  You were living with your partner of some five years, Samantha Vella, and I have already mentioned her role in the events of the offence.  You told Mr Jackson that you had only got out of gaol seven months prior to the current offending, and had been spending the seven months trying to stay drug-free, feeling you were actually doing okay. 

45On the basis of all of that information, Mr Jackson considered it clear that you sustained a moderate to severe traumatic brain injury in the assault, that is the assault of January 2014.  He considered that you demonstrate a range of mild cognitive impairments in the areas of perceptual intellectual abilities, visual new learning and memory, working memory, and most executive skills and multiple task processing.  In contrast he found more serious - that is, moderate to severe - deficits in more complex processing speed and other features that relate to verbal abstract reasoning and more complex planning and organisation. 

46He considered that the condition of your mental capacity at the time of the offending is not a simple situation to analyse.  He considered your cognitive impairments would have been exacerbated by your use of substances at the time, as would the probability of enhanced emotional content to your thinking.  He considered the combination of these would have made you far more likely than the average person to have become extremely emotional and angry at the time, which in his opinion then led to the excessive violent behaviour which you demonstrated.

47Mr Jackson was asked some specific questions going to the legal issues that have arisen in this case.  He was asked his opinion on whether your condition impacted on your moral culpability.  He was prepared only to offer a hypothetical conclusion, and your counsel conceded that it was not really a matter on which a neuropsychologist could necessarily give expert opinion, and the issue is ultimately and primarily a decision for the court.

48Mr Jackson was asked whether your condition would make a sentence of imprisonment more onerous for you to experience than for a person in normal health.  He thought that it would; he considered from watching your behaviour on the CCTV in the incident that there were several factors that led to your behaviour including some of which were beyond your control, namely enhanced emotions, and he thought that in the prison context, it is more likely that your enhanced emotions will be exacerbated in stressful or difficult situations. He also noted that being in prison and being sentenced to prison was likely to have the emotional result.

49Your prospects of rehabilitation according to Mr Jackson  -  and indeed clear from the opinion of Ms Cidoni, and all of the material  - are dependent on you remaining abstinent from substances.  If you could do that, it would significantly reduce the risk of you reoffending, and of you being a risk to the community.  Mr Jackson thought treatment by a neuropsychologist might assist to alleviate some of your symptoms from your severe traumatic brain injury.

50I must take into account that you do have a substantial criminal history, which according to the official record reflects that at age 18, you had 18 days of a breached ICO restored which I assume was your first time in adult prison.  Subsequently, you had 32 further court appearances resulting in numerous sentences of imprisonment, many for dishonesty, driving offences and drug-related offending, and some for possession of prohibited weapons or ammunition and for breaching other sentencing orders.  Apart from a 12-month sentence for causing injury, which was imposed more than 20 years ago, and a month restored of a suspended sentence in 1996 for assaulting police or a person assisting police, you do not have a history of violent offending and indeed there are some personal references which support that the current offending was out of character for you.  Your mother has written a letter which I have of course read and taken into account.  Her assessment of your offending is mainly supported by the criminal record.  She says - "My son has been a menace to the police although not a violent menace.  He hasn't hurt anyone, only himself when doing drugs and crime."

51Your criminal history reflects long-entrenched antisocial behaviour, much of it probably connected with drug abuse.  It also shows that various sentencing options including repeated terms in prison have not deterred you, in that you have resumed abusing drugs and engaging in other illegal behaviour.  I do note that despite your abysmal history before courts, there is minimal history of violent offending.  That is consistent with there having been a change at least partly caused by the effects of your head injury in January 2014, and the resultant acquired brain injury.  There is reference to, and it is accepted by Mr Martin Jackson that, although you had previous anger problems, they markedly increased after your head injury in January 2014.  While that attracts some moderation of your sentence for reasons which will follow, it does leave open that there is quite high risk of you reoffending in future in various ways, including unfortunately with violence, and in my view protection of the community must be a factor to be considered in your sentence. 

52As this is a charge of causing serious injury in circumstances of gross violence, amendments enacted some three years ago to s.10(1) of the Sentencing Act require that this court must impose a term of imprisonment and fix a non-parole period of not less than four years, unless the court finds under s.10A that a “special reason” exists. Your counsel submitted that I should find that “special reason” is established in your case, and as a consequence I should not impose as high a minimum term as four years, although it was conceded that a substantial term of imprisonment is warranted.

53Reliance for a “special reason” under s.10A(2) is placed on s.10A(2)(c), both subparts (i) and (ii). Under those provisions, a court may find that a special reason exists if the offender proves on the balance of probabilities that under (i) at the time of the commission of the offence, he had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or under (ii) has impaired mental functioning that would result in the offender being subject to significantly more than the ordinary burden or risks of imprisonment.

54Both the prosecution and defence referred to the only Court of Appeal decision so far that has dealt with the provisions of s.10A(2), DPP v Hudgson[1].  However, as in that case, the Court of Appeal did not accept that the evidence supported a mental health condition to satisfy the definition of impaired mental functioning, there was no further consideration of subpart (c) of the section, and the case turned mainly on whether subpart (e) which is not relied upon in the current case was satisfied.

[1][2016] VSCA 254

55As I read s.10A(2)(c)(i), there are three issues or findings that the court must decide, and on each of them must be satisfied on the balance of probabilities for it to apply. First, the offender must at the time of the commission of the offence have had impaired mental functioning. Secondly, there must be a causal link between the impairment of mental functioning and commission of the offence. Thirdly, such impaired mental functioning must substantially reduce the offender's moral culpability.

56I sought further submissions from both counsel about this construction and how it applied in this case, and particularly as there was evidence of more than one cause contributing to the offending conduct, whether that had bearing on reduction of moral culpability.  Both prosecution and defence counsel agreed that there were three findings necessary, as I have just set out above.

57Turning to the first issue, the definition in s.10A of “impaired mental functioning” includes amongst other things an acquired brain injury. The prosecution does not dispute Mr Martin Jackson's expertise as a neuropsychologist nor that his opinion is that you have an acquired brain injury that is most likely due to the incident on 31 January 2014 when struck to the head with a mallet. I am satisfied from Mr Martin Jackson's opinion, on the balance of probabilities, that at the time of the offending, you had an acquired brain injury which satisfies the definition of “impaired mental functioning”.

58As to the second issue, counsel for the prosecution helpfully referred me to the discussion in DPP v O'Neill[2] where in relation to the enlivening of the application of the first four principles in Verdins' case, it was noted that the expressions that had been used as to what was necessary were that there must have been “a realistic connection” with the offending, or a mental condition must have “caused or contributed”, or be “causally linked” to the offending.  Both prosecution and defence counsel in this case submitted that the statutory expression "causally linked" in subpart (c)(i) should be construed as meaning the same as each of those expressions discussed in O'Neill's case, and require the judge to be satisfied on the balance of probabilities that the impaired mental functioning was a cause or contributed to the commission of the offence, even if there were other causes shown on the evidence.  The prosecution conceded that in the presence case, Mr Martin Jackson's opinion could and did satisfy this requirement.  I take that concession into account, and my own reading of Mr Jackson's report, and I am satisfied as to that second issue.

[2][2015] VSCA 325

59Turning to the third issue, both prosecution and defence agree that this requires a third finding which does not necessarily flow from the first and second requirements being satisfied.  The prosecution submitted that if the evidence does satisfy the court that the impaired mental functioning substantially reduced moral culpability, then the court should be cautious about embarking on considering any countervailing contributions to the offending and whether moral culpability should be assessed or adjusted for those.  Defence counsel agreed.  On the basis of those submissions, I have proceeded to take into account solely whether the causally connected impaired mental functioning substantially reduced moral culpability for the offending in this case.

60In this case, the prosecution conceded that it would be open on the evidence to find a substantial reduction in moral culpability from the acquired brain injury, and so did not really dispute that a special reason be found under sub-s.10A(2)(c)(i).  I make the third finding on the balance of probabilities in this case.  As this basis for a finding that special reasons exists, it is not necessary to also consider subpart (ii) in this case.  I note that the prosecution argued that there was insufficient evidence to establish that basis in this case.

61As I have found that special reason exists, I am not bound to impose the minimum term mandated under s.10(1). I must therefore return to all usual sentencing principles and apply them to decide the sentence in this case. I have already outlined a number of them.

62The opinions of Mr Martin Jackson and of Ms Cidoni are again relevant for consideration under Verdins[3] principles, and I shall not repeat the relevant parts of their opinions.  I am satisfied for the same reasons as under sub-s.10A(c)(i) that the first principle in Verdins' case, of reduced moral culpability because of the contribution of your acquired brain injury to the offending, is enlivened, and that some moderation of your sentence for that reason is required.  I am also satisfied that because of the causal link between your acquired brain injury and the offending, both general and specific deterrence should be moderated in this case although neither should be totally disregarded.  In my view both are still important sentencing factors, having regard to the serious nature of the offending. 

[3] [2007] VSCA 102

63I am not satisfied that there is evidence in this case to support that you will find imprisonment significantly more difficult or burdensome than had you not had the acquired brain injury, however I note that the medication which you are being prescribed in prison and the state you were in - which I am told was largely from methadone - when you were before the court yesterday and on a preceding occasion - may be making you less alert to your surroundings.  I do consider that potentially may make you more vulnerable to harm in prison.  I am not suggesting that the methadone dose should be adjusted nor that it should not be prescribed, but I have taken into account that if you are taking such medication, it may render you less alert to your surroundings.

64In Hudgson’s case, the Court of Appeal referred to the effect of the operation of s.10(1) imposing a mandatory minimum term and the entire sentencing process becoming problematic and unorthodox because a sentencing judge may have to start with the non-parole period and work upwards from there, rather than imposing an appropriate sentence and then deciding what proportion of that sentence should be served before eligibility for parole. As I have found “special reason” in this case and I am not bound by that mandatory non-parole period, I do not think I need to be particularly concerned about those comments in the Hudgson, but rather I have returned to the general and orthodox sentencing principles. 

65Those include that I must take into account current sentencing practice, although recent High Court authority makes clear that is only one of many sentencing considerations applicable and does not create boundaries for a sentence in a particular case. 

66I was referred to Sentencing Snapshots for the charge of intentionally causing serious injury. For the period 2010 to 2015, approximately 75 per cent of sentences were of imprisonment, and the average length of those was from four years four months, to five years two months in 2014-15.  The average non-parole periods were three years one month, to four years two months, the highest being in the last of those years.  There are a number of limits on the usefulness of these statistics.   They do not distinguish cases where there were pleas of guilty from verdicts after trial.  They do not record prior criminal history nor personal circumstances or particular mitigating factors.  Further, the earlier years of those statistics which had the lower averages, were more likely to have included cases based on the previous definition of “serious injury” under which the gravity of what amounted to a serious injury was lower and the seriousness of the offending in itself may have not been considered quite as high as under the present definition. 

67I was also referred to the only two Court of Appeal cases involving the present charge, that is, intentionally causing serious injury in circumstances of gross violence - under s.15A of the Crimes Act. In Hudgson, serious injury was caused to the victim's leg in a frightening incident which also caused lasting psychological harm. A sentence after trial combining 23 months followed by a two-year CCO after a finding of special reason, was overturned by the Court of Appeal, and replaced with a head sentence of five years and a non-parole period of four years, special reason not being found. It was noted that there were insufficient cases yet decided to establish current sentencing practice for the s.15A offence.

68In Ferrer v R,[4] there had been a planned revenge attack against the victim, taking a hammer and cable ties.  The victim was struck repeatedly to the back of the head with a hammer by the defendant before a co-offender also struck such a blow.  The victim suffered open wounds and skull fractures, underwent intensive treatment and suffered long-term psychological effects from the attack.  The offender was in his 40s with a prior criminal history including violence.  The violence of the particular offence was described as a most serious example of intentionally causing serious injury due to the extent of planning, duration and persistence of the attack, but the moral culpability mitigated to a small degree by his motivation to avenge his co-offender's rape.  In that case, a sentence of eight years' imprisonment on that charge was not overturned.  It was part of a total effective sentence of nine years on which a minimum term of six years was fixed.

[4] [2016] VSCA 295

69I am not satisfied that those two cases are sufficient to reflect a current sentencing practice, and although I have had regard to them, and also to the Sentencing Snapshots for intentionally causing serious injury, I have been wary of using any of those as a particular guide to current sentencing practice for this sentence.

70Notwithstanding some moderation due to the connection between your acquired brain injury and the offending, sentencing principles of general and specific deterrence, and community condemnation of such conduct, must still be important factors in your sentence.  Taking into account all of the considerations I have mentioned, and as was conceded by your counsel, no sentence other than imprisonment would be appropriate.  Giving some moderation for the lowered moral culpability and for the application of general and specific deterrence all based on the cognitive impairment from an acquired brain injury found by Mr Jackson, as well as significant leniency for the plea of guilty and expression of remorse, I nevertheless find that a substantial period of imprisonment is required to adequately reflect the serious nature of this offence.

71Would you stand up now please, Mr Whittle.

72Corey Whittle, on the charge of intentionally causing serious injury to Freddie Koeleman in circumstances of gross violence, you are convicted and sentenced to five years' imprisonment. 

73I fix a minimum term before you can be eligible for parole of three years and four months.

74I declare 412 days of pre-sentence detention reckoned served, and I direct that that be recorded in court records.  That will be deducted administratively off both the head sentence and non-parole period. 

75I state for the purpose of s.6AAA of the Sentencing Act that if you had not pleaded guilty but been found guilty of the same charge after a trial, and had all other circumstances including your acquired brain injury been the same, I would have imposed a sentence of eight years' imprisonment with a non-parole period of six years. 

76You can take a seat while the orders are prepared.  Were there any ancillary orders?

77MR STEFANOVIC:  Nothing, Your Honour.

78HER HONOUR:  No.  I didn't have a note of any, thank you.  Because of the time of day, I will wait here and sign those orders.

79MR JACKSON:  Yes, Your Honour.

80HER HONOUR:  Do you want to approach your client?

81MR JACKSON:  I'll go - I'll see him downstairs, Your Honour.

82HER HONOUR:  Yes, all right.  I did say yesterday that there's to be no physical contact but while this is happening, I'll let his family talk to him.

83MR JACKSON:  Might I approach the dock?

84HER HONOUR:  Yes, certainly.

85MR JACKSON:  Thank you, Your Honour.

86HER HONOUR:  I did say no physical contact.

87OFFENDER:  Sorry.

88HER HONOUR:  That's because you are in custody, Mr Whittle.  But you can talk if you wish.  With your mother.

89All right, the order has been signed so I will now ask that Mr Whittle be removed from the courtroom please.  Counsel in this matter can be excused.

90MR JACKSON:  Thank you, Your Honour.

91MR STEFANOVIC:  Thank you, Your Honour.

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