R v Bendix
[2004] VSC 133
•22 April 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1409 of 2004
| THE QUEEN |
| v |
| CARL JAMES BENDIX |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2004 | |
DATE OF SENTENCE: | 22 April 2004 | |
CASE MAY BE CITED AS: | R v Bendix | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 133 | |
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CRIMINAL LAW– Sentencing – Intentionally causing serious injury – Stabbing – Prisoner suffering from serious psychotic illness – Three and a half years with non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Michelle Williams | Kay Robertson Solicitor for Public Prosecutions |
| For the Accused | Mr P.J. Morrisey | Victoria Legal Aid |
HIS HONOUR:
Carl James Bendix, you have pleaded guilty to a charge that you did at Dromana on 3 May 2003 without lawful excuse intentionally cause serious injury to Andrew Richard Ristrom. It is now for me to sentence you.
At the time of the offence you were living alone on your family’s farming property at Dromana. Mr Ristrom and his family owned a weekend farming property close by and leased areas of your family’s property for the agistment of cattle. You had been living alone at the farm for about 18 month but the leasing arrangement with Mr Ristrom had been in existence for some four years.
On the evening of Friday 2 May 2003 you telephoned Mr Ristrom at his home in Melbourne and asked him whether he planned to come down to the farm during the weekend and if so whether he would then return to you a whip which your mother had given to Mr Ristrom’s daughter a couple of years before. Mr Ristrom said that he did intend to come down and that he would return the whip.
On the afternoon of Saturday 3 May 2003 Mr Ristrom drove with one of his sons, James, down to their weekend farm. They arrived there at about 2.15 pm and took a tractor and a four wheel motor bike across to your family’s property to feed their cattle. When they arrived at your property they found that the paddock gates had been left open and that the cattle were not where they were supposed to be, and after searching they found three mobs of their cattle mixed together in one paddock without any water.
Andrew Ristrom called Mrs Ristrom by mobile telephone to drive across and help sort out the cattle. Upon her arrival she and Mr Ristrom discussed the situation and Mrs Ristrom suggested that Mr Ristrom go and speak to you to find out why the several mobs of cattle had been mixed together. In accordance with her suggestion Mr Ristrom drove the four wheel motorbike across the paddocks to your farmhouse.
After parking the four wheel motor bike (with engine still running) outside the fence that surrounds the farmhouse lawn, Mr Ristrom walked through the gate in the fence and across the lawn towards the front door of the house. As he walked your dog came running out to greet him and you strode out behind the dog towards Mr Ristrom. Mr Ristrom said hello to you and asked you what had happened to the cattle. Then without any warning you punched Mr Ristrom in the mouth with your left fist, breaking his front false tooth and sending it flying out of his mouth. As he grabbed for the tooth and caught it you said “I am going to stab you”.
At that point you walked towards Mr Ristrom with a knife in your right hand and as he lifted his left arm to protect his chest you stabbed him at least twice in the upper left arm. The blow caused Mr Ristrom to lose feeling in his left arm and as he reeled backwards in an attempt to get away from you said “You hurt my dog”. Mr Ristrom answered “I did not touch your dog” and you then stated “I am going to kill you”.
Mr Ristrom continued to attempt to move sideways and away from you towards the gate. But as he moved you followed. Then as he passed through the gate into the outer paddock you swung the knife again, this time under Mr Ristrom’s arm, and struck him twice with the knife in the area around his armpit. Mr Ristrom fell again to the ground and as he fell you kicked him in his side. Then as he attempted to get up from the ground you swung at him again with the knife and struck him with the knife in the side of his head.
Your dog was by that stage jumping around and barking wildly, which distracted you, and Mr Ristrom seized the opportunity and ran for his life. After going a short distance he glanced back and saw that you were no longer immediately behind him. But as he kept running he could feel himself becoming faint and nauseous from the loss of blood from his wounds and as a result of the shock. He was terrified that you would come after him on the four wheel motorbike that he had left running at the gate.
Somehow Mr Ristrom managed to get back to where his tractor had been left in the middle of the property and then onto to the tractor and to drive it towards the back of the property where Mrs Ristrom and James Ristrom were working on collecting the cattle. But by that stage he had lost a considerable amount of blood. He was close to passing out. And it was all that Mrs Ristrom and James Ristrom could do to lay him out in the back of Mrs Ristrom’s car and tend to him as best they could until an ambulance arrived. After initial treatment from the ambulance officers he was taken immediately by ambulance to the Frankston Hospital.
Upon presentation at hospital Mr Ristrom was found to be suffering from numbness in his left little finger and reduced movement in his left hand and forearm. His left shoulder and upper arm had been bandaged by the ambulance officers but blood was penetrating through the bandage. He was taken to theatre where his wounds were explored and debrided under general anaesthetic. He was found to have four separate wounds. There was a 2 cm slightly cured laceration on the left parietal scalp. He had two further small stab wounds to his left anterior axilla, each approximately 1 cm long. The upper wound extended into the subcutaneous tissues just under the skin for a distance of approximately 3 cm. The lower wound just penetrated the skin into the subcutaneous fat but did not extend. The fourth and most significant wound was to the back of his left arm and shoulder extending up into his armpit. It was a Y shaped laceration with the stem of the Y pointing upwards . One branch of the Y was 15 cm long and the other 20 cm long including the stem. The lateral 15 cm wound extended down through skin and fat but did not penetrate into muscle. Contrastingly, the medial 20 cm wound extended right through the triceps muscle on the back of the arm for a depth of approximately 5 to 6 cm and then continued up into the axilla. In that area it had divided two large axillary veins/venae comitantes each of approximately 5 mm diameter. They are major veins which drain blood back from the arm. The blade had also divided one of the major cords or nerves of the brachial plexus in the armpit with a small division of a second smaller branch of the brachial plexus. A third large nerve branch in the region had lost its outer perineurium or covering although the nerve fibres remained intact.
Fortunately, the blade narrowly missed the axilla artery by some 3 to 5 mm. Otherwise Mr Ristrom may have lost his life due to blood loss. But the significant injury to the medial cord of the brachial plexus, which forms the ulna nerve, has resulted in the loss of sensation in the carpi ulnaris muscle, flexor digitor and profundus tendons of Mr Ristrom’s little finger and ring fingers and the intrinsic muscles of his hands. That will have long-term sequelae as the likelihood of recovery of those muscles is very low. It is hoped that Mr Ristrom will regain protective sensation in his little and ring fingers but the quality of sensation will never be normal.
Immediately after committing the offence you behaved as if nothing had occurred. Shortly after the stabbing you telephoned Mr Ristrom’s daughter at the Ristroms’ property and asked if Mr Ristrom had brought the whip down from town. A few minutes later another neighbour, Mr Leahy, drove his tractor down to the gate where Mr Ristrom’s four wheel motor bike was parked and you approached him and began speaking to him about harrowing the fields. He had not witnessed the stabbing and had no idea as to what had occurred. Just after 4.00pm you telephoned Mrs Leahy and asked her if she could call by your house and collect a watch which you wished to give to Sarah Ristrom in return for the whip. A short time later, after police had spoken to the Leahys, Mrs Leahy called you back and asked you what had happened. You replied that nothing had occurred.
When police later came to your home you refused to surrender to them and locked yourself in the house and a stand-off followed. It came to an end only some hours later after the police Special Operations Group forced entry and effected your arrest.
Nature and Gravity of the offence
The offence to which you have pleaded guilty is a serious offence. It carries a maximum penalty of 20 years imprisonment[1]. You inflicted a number of wounds to Mr Ristrom of which any one could properly be considered a serious injury and which in aggregate are beyond question so to be regarded[2]. By your actions you have caused serious bodily injury to Mr Ristrom and it is only by the greatest of good fortune that one of the wounds which you inflicted missed his axilla artery and thereby spared him from the chance of death due to blood loss.
[1]Crimes Act 1958, s16 (although under current sentencing practices the length of sentence imposed tends not to exceed about 10 years even for the worst cases of the offence)
[2]Crimes Act 1958, s. 15
Personal circumstances of the victim
As has already been recorded, your offence will leave Mr Ristrom with lasting pain and disorder. Over and above the physiological injuries which he has suffered his victim impact statement reveals that he has been subjected to considerable pain and discomfort in the course of surgery and treatment and that he faces a good deal more in the period ahead. The episode has also had significant psychological effects upon him. His self esteem is reduced and his concentration span is affected. He is concerned for the effects of the ordeal upon Mrs Ristrom and their son James. He can no longer and perhaps will never again enjoy life on the farm or alone in the bush in the way in which he was able to enjoy them before the attack. It does not overstate the position to say that your actions have had a deep and lasting detrimental effect upon the quality of life of at least three members of the Ristrom family.
Culpability and responsibility
You alone are to blame for the offence. Your attack on Mr Ristrom was unprovoked and unwarranted. He did not offer you any offence and he had not ever offered you offence or other cause for anger, but on the contrary had been a good friend and neighbour to you and a good and reliable tenant of your family’s land. He was unarmed and wholly unprepared for what you were about to do to him and even after he fell wounded to the ground you maintained the attack by pursuing him and kicking him on the ground and stabbing him to the head as he endeavoured to flee.
But in view of what I am about to say about your mental condition at the time, I do not regard you as having been wholly responsible for what occurred. You have been judged fit to plead and to have understood the nature and quality of your acts and that they were wrong. But in light of the facts to which I now turn I am satisfied that at the time of the offence you were suffering from a chronic major psychotic illness which was of central relevance to the offence.
Previous character
You are 57 years of age and you had a privileged upbringing. You have never had to work and you have never wanted for anything material. But your father died when you were only 12 years of age and from that point you began to exhibit significant behavioural problems. By the age of 16 years you had begun to abuse alcohol and after completing the Leaving Certificate year at Scotch College you moved to Sydney and began to drink heavily.
So it was in Sydney and no doubt as a result of the effects of alcohol that you made the first of many subsequent appearances before the courts. On 13 December 1965 you were convicted at the Court of Quarter Sessions at Parramatta on one count of break enter and steal and one of receiving stolen goods and you were sentenced to be released on entering into an undertaking to be of good behaviour for a period of three years on both charges.
In 1968 you travelled to England and continued to drink massive amounts of alcohol and, as a consequence of your alcohol abuse, on 11 November 1968 you were convicted at the Magistrates’ Court at Dartford, Kent on one count of malicious damage and one count of larceny. You were sentenced to pay £ 5 on each count.
After returning to Australia you continued to drink heavily and you began also to abuse cannabis, amphetamines and LSD, and I infer that by that stage you had become well and truly addicted to alcohol. On 18 February 1969 you were convicted at the Court of Petty Sessions at Prahran on a charge of driving a motor vehicle under the influence of intoxicating liquor and sentenced to pay a fine of $100. Your driver’s licence was cancelled and you were disqualified from obtaining any such licence for a period of 12 months. Despite that disqualification, however, on 29 August 1969 you were again convicted at the Court of Petty Sessions at Malvern of driving a motor vehicle under the influence of intoxicating liquor, and convicted of driving a motor vehicle whilst licence cancelled, refusing a lawful breath test and using indecent language. For those offences you were sentenced to imprisonment of one month on both of the first and second charges, seven days imprisonment on the third charge and fined $20 on the fourth charge.
In 1970 you married and thus became stepfather to two young children born to your wife as a result of an earlier relationship. But as a result of what has been described as a black-out drunken dispute, on 22 July 1970 you were convicted at the Magistrates’ Court at Hawthorn of two charges of unlawful assault and one charge of causing wilful damage and sentenced to be released on probation for a period of two years on all charges. Your marriage failed after only about six years and your contact with your daughters has since been minimal.
Your documented psychiatric history dates back to the early 1970s when you were admitted to Royal Park Psychiatric Hospital, typically exhibiting violent behaviour; not infrequently directed at yourself.
Meanwhile your alcoholism continued unabated. On 5 December 1974 you were convicted at the Magistrates’ Court at Hawthorn of driving a motor vehicle whilst exceeding 0.05%, being an unlicensed driver and failing to keep left of carriageway. You were sentenced to one month imprisonment on the charge of driving whilst exceeding 0.05% and sentenced to pay fines totalling $325 on the remainder of the charges and disqualified from driving for a further two years. On 26 May 1975 you were convicted at the Magistrates’ Court at Prahran of driving whilst exceeding 0.05% and driving whilst disqualified and again sentenced to a term of one month imprisonment, fined $70 and further disqualified from holding a driver’s licence for a period of a further two years. Then, shortly after your marriage broke up, you were on 6 June 1977 convicted before the Magistrates’ Court at Hawthorn of allowing a dog to attack a person for which you were fined $30.
In 1979 your brother, who was afflicted by narcotic dependency was killed in a motor accident.
On 30 October 1980 you were convicted before the Magistrates’ Court at Prahran of unlawful assault and two charges of causing wilful damage and sentenced to be released on entering into a bond in the sum of $200 to be of good behaviour for a period of one year. This offence too, it is said, was the result of heavy drinking.
Another two years later, on 3 November 1982 you were convicted before the Magistrates’ Court at Melbourne on yet another charge of driving under the influence of intoxicating liquor and sentenced to a term of imprisonment of one year and disqualified from driving for 10 years. Remarkably, that sentence was reduced on appeal to the County Court, and you were released on probation for a period of three years with a special condition to receive such treatment as might be directed by Dr Zelwer. Your licence was cancelled and you were disqualified from driving for five years.
Dr Zelwer diagnosed you as suffering from bipolar disorder (manic depressive psychosis) and you were admitted to Trentwood Private Psychiatric Hospital on more than one occasion. But despite the treatment that you received at that time, throughout 1985 and 1986 you were again admitted to Royal Park on a number of occasions and were observed to be increasingly psychotic and in particular to be suffering from persecutory delusions. I infer that it was in that state of mind that you were on 31 October 1986 convicted before the Magistrates’ Court at Prahran of threatening to damage or destroy property and handling stolen goods. On that occasion you were sentenced to be released on entering into a bond in the sum of $500 to be of good behaviour for a period of 11 months on all charges.
Still, however, the alcoholism and cannabis and amphetamine abuse continued and as you reached your forties you added a heroin habit of proportions which it is said only the very wealthy would be able to maintain. On 10 June 1987 you were yet again convicted before the Magistrates’ Court at Prahran of driving a motor vehicle whilst disqualified and driving a motor vehicle whilst exceeding 0.05% and you were on that occasion also convicted of stating a false name and address and you were sentenced to imprisonment of six months which was wholly suspended for 12 months and you were fined a total of $775.
While you were on remand in H Division of HM Metropolitan Reception Prison in 1988 you engaged in a serious act of self-injury by lacerating your scrotum and causing significant testicular damage. As a consequence, you were transferred to the Forensic Unit at Mont Park Psychiatric Hospital under the care of the consultant psychiatrist Dr Lester Walton. You were there treated for some time and I gather that your condition was stabilised. But in a fashion that has been repeated several times since you were first diagnosed as being psychiatrically disturbed, after a time you were lost to continuing psychiatric follow-up.
You were therefore soon back before the courts. On 14 November 1991 you were convicted at the Magistrates’ Court at Prahran on two charges of property damage and sentenced to three months imprisonment on each charge to be served concurrently and wholly suspended for 12 months, and fined $500 on each charge. On September 1992 you were convicted before the Magistrates’ Court at Oakleigh of driving a motor vehicle whilst disqualified and of two charges of driving a motor vehicle whilst exceeding 0.05%. On that occasion you were sentenced to be released on an intensive correction order for a period of six months and a community based order for a period of two years and to continue treatment as directed, and you were further disqualified from driving for five years. But you may just as well have been sent straight to gaol. After breaching the conditions of those orders you were brought up before the Magistrates’ Court again on 28 January 1993 and sentenced to imprisonment for a periods of 117 days and three months respectively.
Then during the 1990s you began to appreciate the seriousness of your condition and you voluntarily underwent multiple periods of detoxification, albeit apparently without any lasting success. Despite your attempts to stop, the pattern of marked alcohol intake continued together with intermittent heroin use. On 13 January 1993 you were convicted before the Magistrates’ Court at Prahran of possession of a dangerous article and being drunk in a public place, for which you were sentenced to prison for a period of one month on each charge, and on 11 February 1993 you were convicted before the same court, yet again, of driving a motor vehicle whilst disqualified and whilst exceeding 0.05%, and on that occasion you were sentenced to periods of imprisonment totalling nine months.
There was then, however, a significant period in which you seem not to have not offended and, I infer therefore in which you were partially successful in your attempts to free yourself of your drug and alcohol dependence. But on 22 June 1998 you were convicted before the Magistrates’ Court at Sunshine of using a drug of dependence (heroin) and fined $150; on 18 February 2000 you were convicted of armed robbery after holding up a service station with a syringe and stealing $300, and sentenced to 12 months imprisonment which was wholly suspended; and on 2 March 2000 you were convicted before the Magistrates’ Court at Frankston of yet again driving a motor vehicle whilst disqualified, and convicted of driving in a manner dangerous to the public, refusing a breath test and failing to report an accident in which a person was injured. Upon the first three charges you were sentenced to periods of imprisonment totalling 12 months, which was wholly suspended for two years. On the charge of refusing a preliminary breath test you were fined $1,000 and disqualified from obtaining a licence for five years. And on the charge of failing to report an accident you were released without conviction upon entering into a bond to be of good behaviour for two years with a special condition to attend upon Dr B Monheit for treatment.
But Dr Monheit’s treatment was to prove of no avail. On 15 October 2000 you were brought up again for breaching the suspended sentence and convicted of driving a motor vehicle under the influence of intoxicating liquor and whilst disqualified.
Beginning in July 2001 you attempted to abstain totally from alcohol and other drugs and thereby rid yourself of the addiction which had by then so long plagued you. In furtherance of that attempt you ceased to live with your mother in the city and you moved full time to the farm at Dromana in order to be free of the of temptations and distractions of city life. You worked on the farm to maintain it and improve it. But even then the exercise was not wholly successful. On 15 October 2002 you were convicted before the Magistrates’ Court at Frankston of yet again driving a motor vehicle under the influence of intoxicating liquor and driving whilst disqualified. And for that you were released on an intensive correction order for an aggregate of nine months and disqualified from driving for five years on both charges.
Total abstinence also had serious side effects. Since you attacked Mr Ristrom you have been re-examined by Dr Walton and he reports that after you first presented in the late 1980s as a classical picture of bipolar mood disorder, over the years your persecutory delusions have been prominent in the absence of marked mood disturbance and there is now evidence of persisting hypomania. Dr Walton considers that your self-imposed total abstinence from the alcohol and the absence of appropriate medication may well have exacerbated your underlying psychosis and led to the development of persecutory delusions surrounding Mr Ristrom. Thus while Dr Walton’s opinion is that you did not have a defence of mental impairment, he cannot exclude the proposition that you may not have been able to reason with a moderate degree of sense or composure on the wrongfulness of your actions at the time of the offence. Dr Walton’s assessment, which I accept, is that your mental illness was central to your offending.
Sentencing considerations
For the reasons already expressed I regard your offence as a serious offence of intentionally causing serious injury. It is made worse by your long history of offending. Ordinarily such an offence would call for a sentence sufficient to deter others from committing offences of the same or similar character and to deter you from offending again. The fact that you were suffering from a serious psychiatric illness, albeit falling short of insanity, means that this is not an appropriate case for the promotion of general deterrence and reduces the moral culpability of your offence and the need for denunciation of your conduct[3]. But I consider that there still a need for specific deterrence.
[3]R v Tsiaras [1996] 2 VR 398 at p. 400
Granted that your psychiatric condition may make it the more difficult to achieve deterrence, your criminal history is littered with lenient sentencing dispositions that have done nothing to assist you to realise the error of your ways. Thus even after the change of heart which is said to have begun in July 2001 you re-offended again in 2002 in a fashion which it seems likely you knew to be wrong. Given your history and recidivism, and despite your condition, I think that there is a need for you to be punished and to understand that you are being punished for what you have done.
It is said on your behalf and I accept that you are truly remorseful for what you have done and that you are determined not to re-offend. As Dr Walton put it in evidence, you are a man of mature years, and while you have a history of repeated failure to apply yourself consistently to proper treatment and rehabilitation, you have now achieved a sustained period of sobriety and have developed insight into the need for ongoing psychiatric treatment and, perhaps for the first time, a real insight into the fact that to this point you have wasted your life. You are being well and appropriately treated under psychiatric supervision and so far as can be assessed your condition is for the time being in remission. Your prognosis is now as favourable as it has been in your life to date. I also take into account your plea of guilty as something that in itself warrants a discount on the sentence which it would otherwise be appropriate to impose and as further evidence of your remorse and wish to spare the Ristroms from the ordeal of a trial.
As against that, it remains that you have committed a serious offence which has severely affected the victim and his family and which as such calls for serious punishment[4]. Putting aside questions of condonation and general deterrence, which in the circumstances may be regarded as inapposite, it is necessary to impose a sentence sufficient to protect the community from you and to do what can be done to facilitate your rehabilitation. In my judgment there is a need for you to remain in gaol under treatment for some considerable time.
[4]cf. R v Lee , Unreported, VSCA, 21 August 1997 at pp. 8-9
Bearing in mind the considerations to which the Sentencing Act 1991 directs attention, and in particular those which I have mentioned, I have concluded that you should be sentenced to a term of imprisonment of three and a half years and that you should serve not less than two of those years before becoming eligible for parole.
In accordance with the submissions which were made on your behalf, I have endeavoured to see my way clear to an even shorter non-parole period. I have taken into account your plea of guilty, the remorse which you have shown, your prognosis and the fact that you are supported and will continue to be supported by your mother and your good friend Jan Noreen Duncan. But having listened to Dr Walton very carefully and considered his report at length, and mindful as I am of your history of relapses, I judge it necessary that there be a further sustained period of detention and treatment in detention before parole should be considered.
Sentence
Carl James Bendix, for the reasons which I have expressed, I sentence you to a term of imprisonment of three and a half years. I fix a period of two years as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served under the sentence is 356 days inclusive of today’s date and I direct that there be noted in the Court’s records the fact that the declaration has been made and its details.
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