R v Black
[2007] VSC 385
•23 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1530 of 2006
| THE QUEEN |
| v |
| ANTHONY MICHAEL BLACK |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2007 | |
DATE OF SENTENCE: | 23 February 2007 | |
CASE MAY BE CITED AS: | R v AM Black | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 385 | |
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Plea – attempted murder – reckless serious injury – young offender – motiveless crime – no prior criminal history – savage attack – remorse – 13½ years’ imprisonment, minimum 8 years six months’ imprisonment before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | J Rapke QC | Office Public Prosecutions |
| For the Defendant | M Taft QC | Rob Stary & Co |
HER HONOUR:
Anthony Michael Black, you have pleaded guilty to attempted murder of Laurinda Asher and one count of recklessly causing serious injury to her son, James Anelzark, in the early hours of the morning of Sunday 9 April 2006. You have no prior convictions and from the evidence before me, you have not been engaged in any sort of illegal activity whilst growing up. You are currently aged 20, having been born on 1 April 1986 and at the time of the commission of these offences, you were aged 19.
The maximum penalty for the crime of attempted murder is 25 years and for recklessly causing serious injury, 15 years' imprisonment.
The crimes occurred in the early morning of 9 April 2006. In the hours prior to the commission of these offences, you had attended various nightclubs. Between 6pm, when you commenced your social activities, on the Saturday night, and 6.30am on the Sunday morning, when you committed these horrific crimes, you had attended approximately eight bars at different times, travelling from Williamstown to the city, back to Williamstown, then to Prahran and from there, finally back to Williamstown to the 7 Eleven store. You had been with a variety of friends during those times and, on the last trip back, dropped some friends off in Newport before continuing in the taxi on to the 7 Eleven. There you purchased some cigarettes, used the toilet and then headed off, to walk home. As you walked home, you went past the home of the victims in this matter, who lived just a few hundred metres from where you resided, with your family. For reasons that will unfortunately forever remain a mystery, you walked down the side path of the home where both Ms Asher and her son were in bed asleep. You walked in through the unlocked back door, picked up a knife in the kitchen, went to the bedroom where Ms Asher, who was aged 39 at the time, lay sleeping and you attacked her with a knife, stabbing her in the left-hand side of the body, the right upper abdomen and severely slashing her throat, with several wounds, severing her oesophagus and narrowly missing her carotid artery. Ms Asher also received what are clearly defensive wounds to her left and right hands and wrists. From there, you walked across the hallway to where Ms Asher's son lay asleep, walked to the head of the bed and woke him. You then said that you had done something very bad. Ms Asher's son, James, told you to get out and from there a fight ensued. It started with you jumping on top of James and attempting to strangle him. You also hit him in the side of the head with the knife that you were still holding and James received a stab wound to the side of his head near his ear. As indicated, there was a fight that ensued. James hitting you with an oil burner that he found sitting on the hall table. That knocked you off balance, enabling James to run towards the back door. He looked backwards and saw his mother, covered in blood, crawling out of the bedroom. You then jumped on the profusely bleeding Ms Asher, but on noticing James heading towards the back door you left Ms Asher and pursued James, catching up with him in the rear yard, tackling him, and you began wrestling on the ground with him. James started yelling for help and, at that stage, you got up and ran out through the side gate, towards the road. By a series of different roads and laneways, you ran down to the foreshore, leaving a trail of blood as you went. You removed your bloodied shirt and began washing it and yourself in the sea. You then moved away from the bay area and began running along a grassed area, where you were seen by police who noticed that you had what appeared to be blood on your body and no shirt. The police were, at that stage, looking for the suspect in this matter, the crime already having been discovered. You walked into a public toilet and when police arrived you were seen to be washing blood from your body. It is apparent from reading materials in the hand-up brief that you were arrested by the use of capsicum spray and baton, not because you were resisting arrest, but because the police believed, correctly, that you were the offender responsible for a violent attack upon two people and they did not know if you were still in possession of the knife.
Upon being arrested, you almost immediately provided an explanation for your presence in the victim's house, which involved the assertion that you had gone to assist them, after hearing yelling. This, of course, was untrue, but you persisted with this explanation during the two interviews with police that ultimately followed your arrest. During your interviews you told the police about your alcohol consumption that night and, after detailing your movements from bar to bar, estimated that you had consumed between 20 to 25 alcoholic drinks of bourbon, Barcardi Breezer, or Vodka raspberry. When asked how you felt, you said, at question 129 of your record of interview, that you were, "Drunk, very drunk". On your estimation of that number of drinks, it would equate to between one-and-a-half to two drinks per hour, over the 11-and-a-half-hour period, in which you were drinking. You equally describe yourself at question 121 as, "I could hardly walk". There is material in the statements of your friends as to their impressions of your level of intoxication at this time and during the evening. Mr Jantzen Sharp indicated that you may have had a dozen drinks at Chasers in Prahran, but also said that when he left you in the taxi you seemed to be yourself. Ms Kate Gialamatzis said that you had, she thought, about half a dozen drinks at Chasers and also said that you seemed to be your normal self, that there was nothing different about you. She was also one of the people who you dropped off in the taxi after attending at Chasers. Mr Cody Ballard described you as having had a few drinks and not appearing overly drunk or unusual in any way. He last saw you before you went to Chasers, which was about 2am. Mr Jarrod Ford, who also last saw you before you went to Chasers, said the whole night you were happy and you were all just having a good time.
In respect of intoxication, I do accept that you were to a degree intoxicated, but not even close to a level that would have robbed you of the ability to reason and understand what you were doing. You may well have been at a level that reduced your inhibitions, but reduced inhibitions, surely, would not have led to behaviour of this type. Your ability to reason was evident from your immediate lies to the police, your removing yourself from the scene of the crime, your hiding from the police as they were searching for you after this incident. All of those matters bespeak someone who was behaving in a relatively ordinary manner. What was not ordinary was the offences that you perpetrated upon complete strangers, for unknown reasons.
The injuries suffered by Ms Asher were appalling and the consequences for her, severe, life-altering and permanent. The injuries inflicted upon her son were not as severe in terms of physical injuries, but, at his young age, the consequences are, equally, likely to be with him forever.
When Ms Asher was taken to hospital she had the following injuries: left internal jugular vein laceration; left internal carotid laceration with thrombosis; middle cerebral artery occlusion, which resulted in a stroke; abdominal stab wound, resulting in stomach perforation; lacerated laryngeal cartilage; liver laceration; seven stab wounds to the neck; perforated oesophagus and two lacerations to her left wrist.
She required the following by way of surgery: laparotomy repair of stomach and haematosis to liver; a bronchoscopy; a gastrotomy; suture and debridement of multiple stab wounds in the neck, arm and abdomen; a craniectomy; a tracheostomy; a laryngoscopy and a neck dissection with exploration of stab wounds.
I do not know if you have ever seen any photos of her injuries. If you have, I am sure you would realise the shocking and appalling state of the injuries she received.
She was admitted to the Alfred Hospital and her treatment involved the following medical teams: neurosurgery; ear, nose and throat specialist; general surgery; vascular surgery; intensive care unit; stroke unit; eventually admission to the general ward and then ultimately to rehabilitation. She remains a person who is severely affected by your actions on that night.
In the victim impact statement it lists in some detail the consequences of your actions upon the life of this woman. As a result of the wounds that you inflicted she suffered a stroke a very short time after the stabbing. The consequences of that, and the physical injuries you inflicted, means that she is in a wheelchair, trying to relearn all of the things that we take for granted in our lives, things such as speaking, walking, thinking clearly, making a meal, being able to be a mother to her two children, a daughter to her own mother, or a sister. Currently, her mother is her carer, with occasional support. Her sister has provided a great deal of support since this time as well. She awaits a placement in a hospital transitional house, which may still be some time off yet.
Her youngest child Tilly, who was very fortunately not home this night, is now living with her father and Ms Asher has, to a very great extent, lost the joy of being a mother to Tilly. Her son, James, who you injured this night, is now virtually homeless as he is not old enough to rent premises himself and he is still hoping that he can live with his mother. He seems to have a somewhat unrealistic view that his mother is just going to return as she was prior to the injuries you inflicted. He also suffers fairly constant pain from the stab wound to the side of his head, which damaged his upper right jaw bone and causes problems for him in eating. He was off work for about two months and has been living a very hand-to-mouth existence. In his words as he says he is "jumping from house to house", staying with friends where he can. This was as at December 2006 and I have no current information as to his living circumstances.
The only way I can really describe what you have done to Ms Asher, her son, her daughter, her mother and her sister, is to say that you have shattered their world and, like the words of the nursery rhyme, you cannot put the pieces together again. I have no doubt that you would like to be able to put the pieces together again not only for your own sake but for theirs. In her victim impact statement, parts of which were read to the court, Ms Asher, through those who assisted her in the making of the statement, said this: "Finally Ms Asher is left with one question for which she is yet to receive an adequate answer. In spite of her limited ability to express her thoughts, feelings and ideas, she wishes to know why."
It is a more than reasonable question to ask and counsel appearing on your behalf dealt with this matter by saying, quite simply, that you cannot provide an explanation for your behaviour. He informed the court that he would be unable to advance any answer to the question that Ms Asher has asked and agreed that the absence of motive makes these events more terrible for all of the victims in this matter.
In a letter written to the victim in this matter, dated 11 July 2006, and delivered to your solicitor, who then decided to retain the letter, rather than forward it to Ms Asher, you wrote, "My name is Anthony Black. I am a normal person. I have a great family and great friends. I really don't know what to say to both of you, apart from I'm sorry. I have wrecked your lives beyond repair. I don't know why I did what I did, to you. It is still a mystery to me and to everyone, who has ever met me." That remains the position to this day.
Not surprisingly, you were examined by two psychiatrists and a forensic psychologist seeking some explanation for your behaviour, some reason for the offences occurring. Each of the examinations by Dr Lester Walton and Dr Danny Sutherland failed to find any psychiatric explanation for your behaviour. By that I mean they found no evidence of any cognitive defect, no evidence of delusions, mood disorder or psychosis. Both stated that, although you remember to a large degree what you did, you simply had no explanation for why you did it. I accept that you have no explanation because if you had an explanation, I have no doubt it would have been put forward. Everyone would be in a much better position, including you, if there was an explanation, so I really do act upon the basis that you cannot explain.
The psychological report prepared by Mr Patrick Newton refers to your remorse for what occurred as well as your depression over what you have done. In his report he stated, "Mr Black expressed strong empathy for his victim's suffering and told me in tears that the recognition that his actions had permanently affected both his victims (and most especially the primary victim) was something that led him to the verge of suicide. Indeed, Mr Black told me that he felt only his own death could provide a sufficient atonement for his crime and that, had it not been for the love of his family, he would have already killed himself."
There is no doubt that these are horrific crimes that you have perpetrated upon two persons who were unknown to you. The court recognises and acknowledges that fact, together with the fact that no matter what punishment is imposed by the court, nothing will bring back the missing parts of the lives of the people who have suffered in this crime.
I have read the victim impact statements and I have taken into account what has been said in those statements but, as I indicated during the hearing, there are many victims in this case not just the two persons who were violently assaulted in this manner, but their immediate relatives who have been caring for them, the children and partners of those relatives, their friends, their work colleagues, their school colleagues. Equally, your own parents, sister, relatives and friends are in some part victims of your behaviour, wondering what went wrong, what they might have done to change or prevent this occurring. What you have done is you have thrown a very big rock into a still pond, creating eddies that go out in diminishing circles. The centre, where you have thrown the rock are the two people that you attacked and the consequences are those circles that spread so far and so wide and affect so many people.
I have to express the community's abhorrence and denunciation of crimes of this nature. These two people were at home, asleep in their beds in a suburban Melbourne street, entitled to feel safe and secure and protected from harm. This type of random criminal behaviour understandably causes real fear amongst the citizens of Melbourne and, accordingly, general deterrence must be, and is, of real significance.
In relation to specific deterrence, it is very hard to say that you need to be deterred, but it is equally clear, from your background, that you were not a person in need of special deterrence prior to the commission of the offence, and it makes the assessment of that very difficult. That is why the question of motive, or the reason for the commission of the crime, causes such problems.
You are now aged 20, having been brought up in Williamstown. Your father is a fencer. Your mother is a nurse in an aged care facility. Your sister, who is three years older than you, is finishing an honours degree in psychology. You went to a local Catholic primary school and then Williamstown High School. You left in the middle of Year 11. You went for 12 months to a trade orientation program, which introduced to you to a variety of trades, with the ultimate aim of choosing a trade. You performed well and decided to return to school, which you did, but once again you didn't complete that year. You then went to work with your father. You worked hard. He was involved, as I said, in fencing and you worked for him. Shortly before these events, you had stated working with a friend who was a carpenter with the ambition of completing a carpentry apprenticeship. Your hobby has been trail-bike riding, which you did with your father and friends, you played sport: cricket, football basketball and indoor soccer.
Your life has not revealed any abnormal incidents, which may have helped explain your behaviour. You have led a perfectly normal, decent life up until this point, which is why everyone is so concerned about what occurred.
You have been held on remand since the commission of these offences, under protection, which I accept is a more onerous regime than that undergone by mainstream prisoners.
Equally, where you reside in Williamstown is a relatively small community. Many of the people there, who know you or your family, equally know Ms Asher or her family.
I have a report from Mr Patrick Newton which indicates that you are suffering from a significant form of depression, to which I have already alluded. In that depression, he says, is a large reaction to your feelings of guilt in relation to this, as well as other concerns, but, predominantly, your feelings of guilt. He referred to it in the following terms: "Mr Black was suffering significant depressive symptoms when he assessed him. These were seen across his emotional, cognitive, physical and interpersonal domains of experience. At an emotional level, he is profoundly sad. Mr Black told me that he was prone to tearfulness and broke down into tears from time to time during our consultation. He feels a crushing weight of guilt for his actions and is plagued by an internal dialogue that focuses on his culpability and his heinousness as a person. He views himself so negatively, that his self-esteem borders on overt self-loathing. The level of punitive self talk that Mr Black describes is extreme, even compared with those whom I have assessed who have been facing the most serious of crimes. Mr Black's thoughts centre around morbid imagery. In his waking, he continues to turn the events of the night in question over and over in his mind, in a futile search for explanations. Even when he sleeps, his rest is disturbed by intrusive dreams, in which he relives the events or is faced with other traumatic scenarios. Perhaps most concerning, Mr Black experiences prominent suicidal ideation. He admitted openly to the view that death would provide some sort of relief from his suffering and seemed to believe that his own suicide would provide some sort of atonement for his offending."
Our law, thank goodness, does not require that people atone in the manner that you have talked about. The punishment is one to be imposed by the courts, but I will ensure that the psychological report by Mr Newton will be forwarded to the prison authorities at the conclusion of my sentencing remarks, to ensure that they are aware of how you feel and to ensure that nothing untoward does happen to you. We do not need any more damaged people.
You have been held in wide esteem by many friends and family members, who are present in court in significant numbers to offer their support to you and to your family. There is a clear acknowledgement by them of the criminality of your actions and all of them speak about the fact that this crime is so inexplicable and so out of character with the person they have known and cared about for so long. That is clear and evident from the various character references that were tendered on your plea and that I have read before the passing of this sentence. Whilst I accept that it is out of character for you to have behaved in this manner, because there is no explanation as to what caused or even may have caused you to behave like this, it is difficult to know what can be done to prevent a recurrence. It is similar to a Jekyll and Hyde personality problem, except no one has been able to find the other personality at all, except for the totally inexplicable behaviour on this night.
A witness was called on your behalf, who was a thoughtful and considered young man, Mr Jack Avery, a Year 12 student who lives in Newport. He has been your friend for a number of years. He was only 16 at the time of the commission of these offences. He told the court about receiving a letter from you. He said he was surprised and shocked by its contents because it was an admission by you of your responsibility for the commission of these crimes. It was about six weeks after you had been placed in custody. You had written at that stage to him and a number of your friends. That letter is an exhibit in this case. He told the court that initially the group of six friends were very easily swayed to believe that it was not you who had committed this crime and to believe the story you initially told the police, as it was so out of your nature, so much not like the person that he knew. He said to this day, although he accepts that you have done it, he just cannot imagine how you did.
After receiving this letter, the friends all came together and spoke about it. They worked out how they were feeling and talked about it and what they were going to do. Ultimately, they decided that they would support you and they now have a roster, so that three of them see you each week, alternately, that is, three one weekend and three the next. In that letter you apologised for lying to them and said that you understood if they no longer wished to visit you in prison. He indicated that each of the persons to whom you have written had struggled in dealing with the confession and just could not understand, because it was just not the person they knew in their hearts and in reality. According to him, you had always shown such love and respect to your own mother, to their mothers and to women around you, but they are determined to continue to support you as best they can. They are to be admired. It is a difficult decision to make.
The law requires me to take into account certain matters in your favour when I am imposing sentence, and I do. They include your youth, your absence of prior convictions, your plea of guilty and the early stage at which it was indicated, and your demonstration and expressions of remorse, which I do accept as genuine.
Equally, though, I must balance those matters with the seriousness of the offences and the fact that this is a particularly serious example of the offence of attempted murder, the consequences that have flowed to the victims of the crime, the community's need for a just and appropriate punishment for crimes of this nature, the need for both general and specific deterrence, although I do not believe that there is such a high need for specific deterrence, as you seem to have at the very least comprehended the impact of what you have done and caused in the way of traumatising so many people.
I have attempted to read all of the cases on attempted murder that have been dealt with in the last five years in an attempt to ascertain if there was any particular pattern to sentencing offenders for crimes of this nature, and I have not been able to determine a pattern as such, but I have found the cases useful in gauging the range of level of criminality involved in cases of such a nature. Each of the cases are unique, although there may be an occasional common factor between them and this matter. There is one thing that all of the cases heard by the Court of Appeal state and I will give but one example of that. In Kasulaitis[1], Callaway JA said:
Sentences are not precedents which must be applied unless they can be distinguished, and the paramount duty of the court is to do justice in individual cases.
[1](1998) 4 VR 224.
Nothing I impose or could impose in the way of sentence will probably appear as justice to Ms Asher and the family and I well understand if that is her view, but I have to balance all of the matters to which I have referred, and in doing so, and having regard to the considerations set out in s.5 of the Sentencing Act 1991, I convict and sentence you in relation to Count 1, a count of attempted murder, to a term of 13 years' imprisonment; in relation to Count 2, the count of recklessly causing serious injury, to a term of two years' imprisonment.
After taking into account the principles of totality, and particularly in relation to the non-parole period, I direct that six months of Count 2 be served cumulatively upon the sentence on Count 1. That makes an effective overall sentence of 13 years and six months' imprisonment, and I declare that you are to serve eight years and six months' imprisonment before becoming eligible for parole.
I direct pursuant to s.18(4) of the Sentencing Act that you have already served 420 days in custody.
I make the order for retention of the forensic sample and the disposal order.
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