R v Artis
[2004] VSC 188
•26 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1467 of 2003
| THE QUEEN |
| v |
| SEAN PETER ARTIS |
---
JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 May 2004 | |
DATE OF SENTENCE: | 26 May 2004 | |
CASE MAY BE CITED AS: | R v Artis | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 188 | |
---
CRIMINAL LAW - Sentencing - Verdict of alternative count of recklessly cause serious injury after trial by jury on charge of manslaughter - Principles upon which Judge should act in determination of facts relevant to sentence.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie S.C. | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Balmer and Associates |
HIS HONOUR:
You Sean Artis have been found guilty after trial by a jury of your peers, of one count of recklessly causing serious injury. The maximum penalty for this crime is fifteen years imprisonment.
The circumstances under which you have been found guilty of this crime are as follows.
For many years prior to the events which bring you to this court there had been an acrimonious relationship between you and your father. The evidence given before the jury by your mother and your sister establishes that throughout your childhood your father was a violent, aggressive and belligerent person when he was affected by alcohol. The evidence is that when he was not so affected he was a pleasant man and a good husband and father. Regrettably the evidence is that he was regularly, if not daily, affected by alcohol. I accept the evidence, that on occasions over a period of many years, you and your mother and sister were subjected to both emotional and physical abuse. The evidence before me is that on one occasion, in your teenage years, you were whipped by your father with a whip which had a nail embedded in it and as a consequence you suffered from scarring to your back. There was other evidence before the jury that your father had been violent towards you and other members of your family throughout many years and in particular throughout the whole of your childhood and teenage years. Indeed the level of violence was such that as a teenager you learned kick boxing for the purpose of defending yourself from your father.
Some years before the events in question occurred you left home and married. You lived in Melbourne for a period of time before returning to the Wangaratta area.
In the weeks leading up to November 2002, you had resided with your mother and father in Wangaratta; your sister was also resident at the home. It is apparent from the evidence before me that the relationship between your father and you, during this period continued to be as strained as it had been in the past. There were two occasions when you and your father came into conflict in a physical manner in the weeks leading up to the 15 November 2002. However, it is apparent that on each of these occasions you achieved physical superiority over your father.
On 15 November 2002 you attended a local hotel where you met up with a former friend one John Senkic. In the course of a conversation at that hotel you heard that your father had borrowed five thousand dollars from Senkic and had not repaid the money. This caused you some considerable anger. Later that evening your father and your mother and your sister went out to dinner at a local hotel. Upon their return they found you at home and talking on the telephone to your wife. Clearly you were upset and angry at this time. Your mother and your sister each gave evidence that you were agitated, and that you kicked a Subway roll across the kitchen causing the contents to splatter over the kitchen and onto your mother and sister. Thereafter an angry discussion broke out between you and your father. Your father attempted to telephone the police but you pulled the telephone plug from the wall of the kitchen. He then went to another room where there was another telephone and made a further call to “000”. You followed him into the room and on your mother’s evidence you punched your father forcefully once to the head. The consequence of this punch was that your father was rendered unconscious. He was taken to Wangaratta Base hospital. Some hours later he was transferred to Melbourne. At that time he was in a critical situation, having lapsed into coma. He died after life support was withdrawn on 19 November 2002
Clearly the jury rejected the argument advanced by you that your actions were in self-defence. However there was an issue before the jury in relation to the charge of manslaughter, of which you were found not guilty, as to whether it was your punch which caused the death of your father, or whether there was an intervening event which was the principal cause of his death, in that a fall took place at Wangaratta Base Hospital after his admission to that hospital.
In my view the jury verdict indicates that they were not satisfied beyond reasonable doubt that your actions caused the intra-cranial bleed which resulted in the death of your father. There was evidence before them that your father had a fall from bed whilst in hospital, and although there was no direct evidence that he hit his head in that fall, there was evidence from Mr Vost that the fall was of some severity. There was evidence that the floor was constructed of vinyl over concrete. There was evidence of a sudden deterioration in your father’s condition immediately after that fall.
The verdict of guilty on the charge of recklessly causing serious injury demonstrates that the jury was satisfied beyond reasonable doubt that at the time you punched your father you foresaw the risk of causing serious injury to him and nevertheless chose to proceed to punch him. In circumstances where the jury were satisfied that you foresaw the probable consequences of your act, it is improbable in the extreme that in their consideration of the charge of manslaughter, they would not have concluded that a reasonable person in your situation would have appreciated that the act of punching your father to the head would expose him to an appreciable risk of serious injury.
If my analysis of the jury verdict is correct, and I observe that neither the prosecution nor the defence submits to the contrary, it is necessary for me to form my own view of the facts and in particular of the nature of the serious injury you caused to your father. Of course no view I form may in any way conflict with the verdict of the jury[1].
[1]R v Harris [1961] VR 236 at 237 and R v Kane [1974] VR 759 at 762.
I am satisfied beyond reasonable doubt that you punched your father at least once, as stated by your mother in the course of giving her evidence. I am satisfied that the punch was of considerable force and that it knocked your father from his chair to the floor and caused him to suffer immediate unconsciousness. You told police that you punched him hard and that you intended to do so[2]. There is no suggestion but that you caused your father to lose consciousness, and to suffer a laceration to the right ear which required suturing, together with significant bruising to the temple. The effect of the expert opinion of Dr O’Donnell is that the punch also caused a fracture to the temple. I accept his opinion. To do so, is not inconsistent with the finding of the jury on the charge of manslaughter, which is to the effect that they were not satisfied that your actions caused the death of your father. There was evidence before the jury from Professor Cordner and from other experts that a person could sustain a fracture of the skull without suffering the intra-cranial bleeding which clearly developed some hours later and after the fall from bed. Furthermore the evidence of Dr O'Donnell does not establish that the fracture he observed on the plain X-rays taken before the fall from bed, was necessarily of the length of or the severity of that found upon operation.
[2]Record of interview question 460 and 461.
That said, I should note that your father had what might be described as a classic eggshell skull and that he was in receipt of prescribed Warfarin, which made him more susceptible to bleeding. Although the law is that those who use violence must take their victims as they find them, I accept that you did not know of your father’s particular medical vulnerability and that although the jury verdict was to the effect that you foresaw the risk of serious injury, I accept that you did not foresee the full and particular consequences of your actions.
It is clear that the explanation for your behaviour was an inability to control your anger at your father, but also at your mother and your sister and your wife. You told police that you hit your father because it was "payback time". That, no doubt, was how you saw it at the time, but it should be observed that your anger at the time was not confined to your father but appears to have arisen in a context of your incapacity to cope with difficulties with your relationship with others and with your wife in particular. There is evidence before me that your mother and your wife had an acrimonious relationship and that caused conflict in your loyalty to each of them, which you found distressing. That relationship is part of the background in which this offence occurred.
Clearly this is a serious offence. The combination of injury caused was most serious. It must be understood clearly by the community that persons who have issues in dispute between members of their family should not seek to resolve those issues by violence.
That said however there are a number of matters of mitigation which weigh in your favour. First, I take into account the most unhappy family history which surrounded you and other members of your family throughout your teenage years by reason of the violence and aggression of your father when affected by alcohol. Regrettably, this court regularly sees the consequences of such family abuse, in the reduction in self-esteem of family members and in inculcating in young people a culture of violence, often in a context of alcohol abuse. Mr Joblin expressed the opinion that your alcohol abuse and demonstrations of aggression when drinking were the result of "modelling behaviour".
Furthermore, and notwithstanding the fact that you pleaded not guilty to the charge of which you were convicted, I accept that you suffer from real remorse for the consequences of your actions. In this regard I note that some months ago you offered to plead guilty to the charge of which you were ultimately convicted. It is apparent from the record of interview conducted with police that soon after you realised the seriousness of the injury which you had caused to your father you suffered real remorse. As I have said, I do not consider that your defence to the charge of which you have been convicted, is reflective of lack of remorse. Although it is true that you at first expressed to police the view that you were pleased your father was seriously injured, because of what he had done to you and your family over the years, I note that you told the informant on 17 November 2002 that you did not feel like that. You said you just “wanted to cry”. You said, “I have hurt him and he is still my dad.” Having listened to the tape recording of the record of interview I accept the genuineness of this statement.
You are now aged thirty-three years of age. You completed your HSC in 1988. Thereafter you undertook a four year apprenticeship in building and you have generally been in employment since then. No prior convictions are alleged against you. In particular it is significant that you have no previous conviction for violence. I accept that you are a person of good character. However, I was informed by your counsel that you have been convicted of two .05 offences: one of .13 in 1992 and one of .08 in 1996. These matters are of relevance only in that they demonstrate that alcohol abuse has caused you difficulty in the past. Indeed you told police that “beer was your poison”. Regrettably this appears to be a path followed by your father and which to some degree you have followed. I heard from Mr Ian Joblin who assessed you in relation to a bail application in December 2003 and once again in relation to the plea upon your conviction only last week. In Mr Joblin’s assessment prepared for the purposes of bail in December 2003 he noted that you had consumed alcohol at various times and that you appeared to have used alcohol when life became difficult for you and when issues arose in your life and which you were incapable of resolving. The evidence before me is that on the night in question although you had consumed some alcohol, there is no basis to say that you were severely effected by alcohol. Nevertheless, it is apparent that alcohol has played a significant part in the strained relationships which you have had with your wife her parents, and your parents and your sister. It should be noted that at various times in the past you have used cannabis although there is no suggestion that you had been using cannabis on the night in question. In his report Mr Joblin stated that he had discussed the issue of alcohol abuse with you. You told him that you began drinking when you were a teenager and that usually you had consumed beer. Mr Joblin noted that you have developed some insight into the problems you have with alcohol. For example you acknowledge that you have a “low threshold of tolerance” and that you are “easily provoked when drinking”. You told him that you can answer provocation with aggression under those conditions. You told Mr Joblin that your wife would say, had he asked her, that she considered you had a problem with alcohol and aggression.
Mr Joblin did not conclude that you are an alcoholic but he saw your drinking as a means to an end. He stated:
“Mr Artis would drink to try to self-medicate or deal with issues he could not otherwise comprehend. There is, however, no doubt in my opinion that the impact of watching demonstrations of aggression and being the recipient of aggression under conditions of alcohol abuse when he was young has been significant for him.”
Mr Joblin concluded as follows:
“The future for this man would be positive, dependent on two factors. One is the resolution of issues involving his wife and the seriousness of that cannot be emphasised enough. The second is absolute abstinence from alcohol. The longer he is coerced in that regard the better. He does have a history of trying to answer psychological difficulties with alcohol abuse and he will face further difficulties at some point. He must learn means of resolution other than simply trying to dissolve his problems in alcohol abuse. He would benefit from counselling to learn alternative methods of conflict resolution and obviously in dealing with the future of his relationship he will need assistance.”
This opinion appears to me to be clearly justified by the circumstances of your relationships with your family and with your wife and her family and thus the issue of rehabilitation is an important matter in relation to my task of sentencing you.
Your counsel informed me in the course of the plea that soon after the events which resulted in the death of your father you were charged with one count of making a threat to kill and one count of intentionally threatening serious injury. I am informed by your counsel that these threats were made to your father-in-law, and to your maternal uncle. You pleaded guilty to these charges on 8 May 2003. It should be noted that the date of these events makes it clear that they were related to the background circumstances of the crime the subject of the jury verdict. These events took place on 17 November 2002, two days after the assault upon your father and two days before his eventual death. They appear to me to be reflective of your incapacity to cope with the issues in your life at that time. In this regard I note from Mr Joblin's report of 18 December 2002 that these offences took place after you were released on bail and at a time when you had nowhere to live and in the stressful circumstances following the hospitalisation of your father. It is of significance that you were at least partly affected by consumption of alcohol on this occasion. The Wangaratta Magistrates’ Court sentenced you to serve five months in prison. Furthermore in relation to the charges which were laid in respect of these matters your bail upon the charge of manslaughter was revoked. The effect of this is that you have now served 399 days in custody in respect of the matter with which I am now required to pass sentence. By reason of these antecedent matters, you have served an additional five months in prison. The effect of the additional prison sentence is that you have now been in custody for a total of approximately sixteen months or 510 days. Your counsel relies upon the fact that you were sentenced in May 2003 in relation to these additional matters as a relevant factor in sentencing you today. Your counsel submits that had those matters been adjourned to be dealt with at the same time as the manslaughter charge, the overall sentence in relation to these matters might have been lessened. That may be so, although it does appear to me on the limited material which is available to me that the sentences imposed by the Magistrate in May 2003 for a threat to kill and a threat to cause serious injury cannot be said to be disproportionate. Nevertheless I accept that the circumstances of these offences are related indirectly to the matter before me and there is some weight in the submission made on your behalf in this regard. I have thus taken into account in your favour the fact that you have served five months in relation to other matters which are related in an indirect way to the matters about which I am required to now sentence you. I accept that by reason of that fact a considerable part of your pre-sentence detention is now no longer available to be deducted from any sentence which I might impose upon you.
As stated above I accept the evidence of Mr Joblin that you have reasonable prospects of rehabilitation, particularly if you can take control of the issues of anger which arise in your life, and if you can abandon the abuse of alcohol. I note that you have made some progress in prison and that in particular you have become a “prison listener” and that you have undertaken a variety of programs. I note with some concern that although you have been prepared at all times to undertake an intensive anger management course, that a course has not been provided to you by Port Phillip Prison. It appears to me to be imperative that you undertake such a program either inside or outside of prison. Furthermore you should have the opportunity to engage in counselling and family relationship programs. This is particularly important to support you in coping with the strains of your marriage breakdown and the possible access issues which may arise in respect of your young daughter. For this reason in particular I consider that a longer than usual parole period is appropriate. I note that you have attended the Alcoholics Anonymous program at Port Phillip Prison and that you appear to have been a model prisoner throughout your time in prison. Taking into account your history and taking into account all the matters which are before me I accept that you are a person who if provided with appropriate supports is unlikely to re-offend in a similar manner. However, for this to be the case you must understand the necessity for you to accept such support, and in particular, understand the necessity to resolve the issues of anger, and alcohol abuse which have affected your relationships in the past.
Accordingly and notwithstanding the significance of the matters which have been put forward on your behalf in relation to matters of mitigation and which I accept; the issues of special deterrence and general deterrence in particular are important. You must understand that the use of violence to resolve the issues which you have in your life will not be accepted by the community. Furthermore, the community must understand that the courts will treat the use of violence in domestic circumstances as serious breaches of the law. Regrettably the use of violence to resolve domestic issues is commonplace and can as here lead to tragic consequences. Those who resort to such violence must understand that the community will not tolerate it. In all the circumstances I see no alternative but to sentence you to a term of imprisonment. I sentence you to 28 months imprisonment. I direct that you not be eligible for parole before you have served a period of 14 months. Pursuant to s.18 of the Sentencing Act I declare that you have already served 399[3] days in custody in respect of the matter for which I now sentence you and I direct that such matter be noted in the records of the Court. I direct that a copy of these sentencing remarks and copies of Mr Joblin's reports be sent to the Adult Parole Board forthwith, so that they may before your earliest eligibility date, obtain appropriate reports and a parole assessment report with a plan to enable you to be paroled with the necessary supports in relation to suitable accommodation, and provision of counselling, and alcohol, family relationship, and anger management programs.
[3]In handing down the above sentence I stated, as advised by Counsel on the plea, that 387 days had been served as pre-sentence detention in this matter. Within minutes of handing down the sentence both Counsel informed my Associate that the calculation of 387 days is incorrect and that the correct calculation is 399 days. Pursuant to s.104A of the Sentencing Act 1991 I have corrected the sentencing order (before it passed into record) to accord with the revised calculation of Counsel.
---
0
0
0