R v Condon
[2022] VSC 425
•29 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0342
| THE QUEEN | Crown |
| v | |
| DANIEL CONDON | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 July 2022 |
DATE OF SENTENCE: | 29 July 2022 |
CASE MAY BE CITED AS: | R v Condon |
MEDIUM NEUTRAL CITATION: | [2022] VSC 425 |
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CRIMINAL LAW – Intentionally causing serious injury in circumstances of gross violence – Prison assault – Offender, in company of co-offender who punched, kicked and stomped on victim, stabbed victim repeatedly and kicked him in the head – Profound incapacitation of victim – Offender suffered extremely difficult childhood – Principles in Bugmy and Verdins engaged – Reasonable prospects of rehabilitation – Youth – Totality – Imprisonment during COVID-19 pandemic and solitary confinement – Bugmy v R [2013] HCA 37; 249 CLR 571 – Byrne v R [2020] VSCA 289 - R v Verdins [2007] VSCA 102; 16 VR 240 – Worboyes v R [2021] VSCA 169; 96 MVR 344.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Solicitor for Public Prosecutions |
| For the Accused | Mr L Gwynn | Valos Black & Associates |
HIS HONOUR:
CIRCUMSTANCES OF OFFENCE
Daniel Condon, you pleaded guilty to the offence of intentionally causing serious injury in circumstances of gross violence, an offence which carries a maximum penalty of 20 years’ imprisonment. Your victim was Derek Collett whom you stabbed repeatedly. According to the plea indictment, the circumstances of gross violence were that you:
a. planned in advance to engage in conduct and at the time of planning:
i. was reckless as to whether the conduct would cause a serious injury; and/or
ii. a reasonable person would have foreseen that the conduct would be likely to result in a serious injury; and
b. continued to cause injury to DEREK COLLETT after DEREK COLLETT was incapacitated.
The prosecution summary, which you accepted save for one matter, encapsulated your offending this way:
The offence that is the subject of the current charges was committed at about 12.53pm on Friday 14 August 2020. At that time the accused was an inmate at Barwon Prison near Geelong. It is alleged that the offence occurred after Mr Condon, and another prisoner Jack Hall, approached the victim Derek Collett and invited him to walk with them in a garden known as the ‘Multi-faith Garden’ which was situated in the southwest corner of the Eucalypt Unit. Derek Collett had recently become an inmate at Barwon Prison.
The prosecution allege that as they were walking along a path in the ‘Multi-faith Garden’ the alleged co-accused Jack Hall assaulted Mr Collett and knocked him to the ground. Daniel Condon then took hold of a sharpened metal dinner knife and stabbed him in the back and side on multiple occasions. As a result of the assault, Mr Collett sustained serious life threatening injuries.
The incident was captured on a number of CCTV cameras which were situated around the Multi-faith Garden.
After the assault, Daniel Condon and Jack Hall walked away from Mr Collett as he lay bleeding on the ground. Mr Collett subsequently made his way to an area known as the ‘Movement Control compound’ where he collapsed and was provided with emergency first aid by a number of prison guards.
Daniel Condon and Jack Hall then returned to their cells in the Illawarra Unit compound.[1]
[1]Summary of Prosecution Opening pp 1-2.
Later in the prosecution summary, the following details about the attack were added:
While Mr Collett was laying incapacitated on his stomach on the footpath, Daniel Condon took hold of the sharpened metal dinner knife. He held the knife in his right hand and stabbed Mr Collette a total of 9 times in the lower back, upper back and neck area. He also kicked Mr Collett in the head.
While Daniel Condon was stabbing Mr Collett, Jack Hall kicked, punched and stomped on Mr Collett’s head multiple times.[2]
[2]Summary of Prosecution Opening pp 4.
I said that there was one matter in the prosecution summary you did not accept. At [26] of the prosecution summary, it was alleged that Mr Hall, who is still to stand trial, handed you the knife in the presence of Mr Collett. You dispute this and maintain through your counsel that you had the knife or ‘shiv’ all along. That is not a matter I need to decide.
The prosecution summary suggests a motive for your offending:
After he arrived [at the prison on 13 August 2020] , Mr Collett was outside the unit near some exercise equipment, when he spoke to a tall male who appeared to be of African descent. Mr Collett did not know the male’s name, and had never seen him before. The male appeared to be offended when Mr Collett said ‘hello’ to him. Mr Collett walked away from him.
…
While [Condon and Hall] were in the foyer [on 14 August 2020 at about 12.51pm], they met Mr Collett. Mr Collett had never met either of the accused previously. Jack Hall asked him, “Are you Derek?’. Mr Collett replied, ‘Yes’.
Mr Hall then asked him, ‘What is your problem with the African?’. Mr Collett replied, ‘I don’t have a problem’.
Mr Hall then stated, ‘Come on mate, we’re trying to help you’. Mr Collett responded, ‘I don’t have a problem with anyone’. Mr Hall then said, ‘Let’s go for a walk to the chapel’.
The accused and Mr Collett then exited the Cassia Unit, and walked in a south-east direction along a concrete footpath towards the Movement Control Compound inside the exercise yard. As they walked, Mr Collett asked them who they were, and they told him that they were from the Illawarra Unit. They said that they were friendly with the Africans in the Unit but did not tell Mr Collett their names.[3]
[3]Summary of Prosecution Opening p 3.
As I said, these paragraphs suggest a motive — payback for some perceived slight to the African — but the paragraphs do not take it very far. You did not shed any light on your motive during the police investigation because, as is your right, you made a no comment recorded police interview.
But this is what you told psychologist Carla Lechner[4] as regards the motive for your offending:
Mr. Condon stated that he had heard “rumours” that the victim was “set up to get me”. Mr. Condon is aware that he has made enemies in the drug sub culture on account of his offending. He therefore decided to “act first or get attacked”.[5]
[4]Ms Lechner wrote two reports about you, one in 2018 and the other in 2022.
[5]Report of Carla Lechner, 1 July 2022, 2.
Ms Lechner did not question this claim and relied on it in expressing her opinions, which I will discuss later. But as I made clear to your counsel in the course of your plea hearing, I place no weight whatsoever on self-serving hearsay. You did not give evidence at your plea hearing. Consequently, the motive for your offending remains unclear.
Victim impact
The impact of your offending on your victim has been profound, both physically and psychologically. That is unsurprising given the seriousness of the injuries which were life threatening. Mr Collett suffered:
·A total of nine stab wounds, which included:
osix on his back;
oone on the left flank; and
oone on the right lateral abdomen.
·A penetrating injury to the abdomen;
·Left chest haemopneumothorax;
·Right chest haemopneumothorax;
·A splenic laceration;
·Lacerations to the descending colon;
·A 13mm left renal laceration; and
·A 2cm left diaphragmatic laceration.
The medical report of forensic physician Dr Jason Schreiber dated 8 December 2021 says this about the severity of the injuries:
·Injuries to the chest were deep impacting on essential organs (both lungs);
·The injuries to the abdomen were deep and resulted in extensive bleeding and multiple abdominal organ injuries which required two emergency specialist surgical interventions for the organs and tissues to have a chance to heal;
·There is no doubt that without the surgical and interventional procedures, he would have died of the injuries:
oThe lungs would not properly inflate resulting in breathing problems, deterioration and death;
oHe would internally bleed to death;
oThe injuries and abdomen may become severely infected with potential systemic blood poisoning;
·There is a future risk of abdominal organ and tissue adhesions (tissues glueing and clinging together) and life-threatening digestive system blockage (ileus); and
·There will be scars.
In Mr Collett’s victim statement dated 5 July 2022, he described his ongoing physical difficulties (especially bowel problems) consistently with Dr Schreiber’s prognosis. He also described how he is extremely fearful, depressed and isolated. Your counsel submitted that the medical material was not sufficiently up to date to infer whether Mr Collett will be permanently incapacitated. I disagree. Based on Dr Schreiber’s expert opinion and Mr Collett’s recent victim impact statement (which was not challenged in any respect) I find that Mr Collett is likely to be permanently and profoundly incapacitated both physically and psychologically.
Seriousness of offending
Your counsel submitted that your offending was an upper mid-range example of the offence in question. In my view, it is an upper range example of the offence. You inflicted life-threatening injuries which continue to cause Mr Collett intense suffering. I infer that your intention was to inflict really serious injury.[6] You used a potentially lethal weapon and you stabbed Mr Collett repeatedly when he was vulnerable, having been knocked to the ground by Mr Hall. The fact that yours was an assault in company and an attack in prison are also aggravating circumstances.
[6]Sensibly, your counsel did not dispute this: see Transcript of Proceedings (Beale J, Supreme Court of Victoria, DPP v Condon, 8 July 2022) 20.
Procedural history
Before turning from the circumstances of your offence to your personal circumstances, let me briefly sketch the procedural history of your case.
On 14 August 2020, as mentioned, you committed the current offence. At the time, you were on remand for offences (mainly dishonesty, drug and driving offences) which were dealt with on 15 December 2020.
On 15 December 2020, you were sentenced to four months’ imprisonment for thefts of motor vehicles and theft. The drug and driving offences and an ammunition offence were dealt with by non-custodial orders. I will say more about your criminal antecedents later.
On 26 February 2021, you were remanded on a charge of attempted murder and alternative offences in respect of the current matter.
On 29 November 2021, after a contested committal at which Mr Collett was cross-examined, you were committed to stand trial on attempted murder and alternative offences.
On 29 March 2022, you made a written offer to the prosecution to plead guilty to intentionally causing serious injury if the attempted murder charge was withdrawn. This was the first time you made an offer to plead guilty to anything.
On 13 April 2022, the prosecution made a counter offer which you accepted the following day.
On 27 April 2022, you were arraigned on the current offence and pleaded guilty.
In my view, your plea of guilty was not made at the first reasonable opportunity. There was a contested committal at which the complainant was subjected to cross- examination, notwithstanding the CCTV footage of your offending. You made no offer to plead guilty until several months after the committal. But whilst not a plea of guilty at the first reasonable opportunity, the prosecution conceded that yours was still an early plea[7] and I will regard it as such.
[7]Transcript of Proceedings (Beale J, Supreme Court of Victoria, DPP v Condon, 8 July 2022) 39.
CIRCUMSTANCES OF OFFENDER
I turn then to your personal history and circumstances.
I accept that your childhood was an extremely difficult one. Your father was a heroin addict who was in and out of jail. Your mother re-partnered but unfortunately your stepfather, according to both you and your mother, turned out to be physically and emotionally abusive to both of you. Your mother says this in her written reference, which was tendered at the plea hearing:
Daniel was raised by myself on my own. His father was not around constantly after his birth due to his heroin addiction and then jail time. He has only met his father a handful of times when he was very young, I chose to keep him out of his life due to the nature of it.
Daniel was diagnosed with ADHD at around 6 years of age and was on Ritalin until his late teens.
When Daniel was around 8 years old we moved to Melbourne from Warrnambool as I had met my husband and also for me to further my work opportunities. This relationship ended up being an extremely abusive time in our lives. Daniel and myself were victims of extreme family violence over a very long period of time. The person we thought we could trust and who was at first a very caring father figure turned into the person who hurt Daniel and myself the most. I ended up having another child (Jaymee, Daniel’s sister) this made things worse for Daniel as I was distracted with a newborn with sleep problems and the aggressor was hurting Daniel without me knowing. It was an extremely horrible time for us and I have ended up with diagnosed PTSD and panic disorder due to this time.
This man has since been jailed for domestic violence and stalking of another family.
Ms Lechner writes in her 2018 psychological report at page 6:
His mother remarried a violent alcoholic who was verbally, physically and emotionally abusive to Mr. Condon and his mother. He reports walking home from school each day feeling “sick in the stomach” in anticipation of being abused in some way. In his teenage years he would step in to protect his mother and become the victim himself.
I accept that your childhood was an extremely difficult one and this impacts upon the assessment of your moral culpability. As the plurality said in the High Court case of Bugmy v R at [44]:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision.[8]
[8]Bugmy v R [2013] HCA 37; 249 CLR 571.
But I note that there was nothing spontaneous about your offending. It was planned. It was not an outburst in a moment of frustration or provocation which might be more readily linked to the abuse you suffered as a child.
Education and work
Your education was limited. You were asked to leave two secondary schools for fighting. You began Year 10 but did not complete it.
You have had jobs working in a butcher’s shop and as a roof plumber. You are said to have a good work ethic when employed. But, unfortunately, drugs undermined your commitment to work.
Drugs
You have longstanding drug issues. Your mother mentions in her reference that your ice addiction started in your late teens. You told Ms Lechner that by the age of 17 you were ‘running amok’.[9] Ms Lechner says this in her 2018 report at page 4:
Mr. Condon stated that he began smoking cannabis at the age of 13 years – “every day 4-7 grams a day”. He was unclear about when he commenced using other drugs but indicated that prior to being remanded he was using up to 3.5 grams of Ice a day (smoking). Over a six-month period, he was using 20 mls. of GHB and he would routinely mix heroin with cannabis in order to come down from Ice. He stated that he has “tried” cocaine and LSD; he denied use of Ketamine. He has used Ecstasy “when I’m out” and abused pills such as Xanax, OxyContin and Endone.
[9]Report of Carla Lechner, 1 July 2022, 3.
I was told by your counsel that you are abstaining from drugs in prison. I hope that is the case because it is critical to your rehabilitation.
Mental health
In her 2022 report, Ms Lechner said this about your mental health issues:
Mr. Condon presents with symptoms of Stimulant Use Disorder – in early remission in a controlled environment (DSM 5-TR). He has long-standing symptoms of depression, anxiety and features of Complex PTSD arising from his exposure to violence and abuse in his formative years. He has largely masked his psychological distress with his drug use…. In addition, he has symptoms of adult ADHD that contribute to impulsivity, poor judgement and decision-making.[10]
[10]Report of Carla Lechner dated 1 July 2022, 6.
It was submitted by your counsel, and not disputed by the prosecution, that, because of your mental health issues, I should moderate specific and general deterrence (Verdins 3 and 4) when working out an appropriate sentence and that I should also take into account that jail will weigh more heavily on you than it would on a person in normal health (Verdins 5).[11] I accept those submissions.
[11]R v Verdins [2007] VSCA 102; 16 VR 240.
However, I do not accept that your offending was due wholly or in part to the hypervigilance you continue to experience as a result of childhood physical abuse. That was Ms Lechner’s view, but it was based on a claim that I do not accept — namely, that you assaulted the victim in a pre-emptive strike to avert being assaulted yourself. As indicated, I am not prepared to accept such a claim without a proper evidentiary basis.
Criminal antecedents
I turn to your criminal antecedents.
You have multiple prior convictions for drug and dishonesty offences and some driving offences.
More significantly, you have prior convictions for offences involving violence, although they are few in number.
In 2019, at Broadmeadows Magistrates’ Court you were sentenced to five days’ imprisonment for an assault in company.
In 2018, you were sentenced by the County Court to 12 months’ imprisonment and a two-year community corrections order (‘CCO’) for armed robbery, intentionally causing injury and theft. In March 2020, you were fined for breaching that CCO, but the order was confirmed. On 26 May 2021, you were again breached on the CCO and re-sentenced on the original offences, receiving a sentence of 17 months’ imprisonment with a declaration of 454 days of pre-sentence detention. You completed that sentence on 28 July 2021.
Your counsel submitted, and the prosecution did not dispute, that I should have regard to that 17 month sentence, which you have completed, in working out an appropriate sentence for the current matter. In other words, I should apply the principle of totality. I accept that submission.
Consequently, I need to refer in further detail to the armed robbery and related offences. Judge Cahill of the County Court, who sentenced you in 2018, described the offending this way:
In summary, on 14 November 2017, at around 4 am, the victim, Brian Kneebone, left his apartment and took the lift to the car park basement in response to a telephone call. He armed himself with a metal pole for protection.
In the car park, you approached him, holding a meat cleaver, and demanded his wallet. You head-butted him, and he tried to run away, but fell over. You grabbed him by his jumper, to pull him up. He said his wallet was upstairs, and you walked with him to the lift. He dropped his keys, and you picked them up.
On the way to his apartment, you said words to the effect, “I’ll cut you if you make a noise and wake the neighbours.” At his apartment, you made him unlock and open the door and grabbed the keys. Inside his apartment, you demanded his wallet. You said words to the effect of, “Show me where the wallet is. I’ll cut you if I have to.” When he did not reply, you punched him to the right eye.
He said he would give you his wallet if you returned his keys. He gave you the wallet. You looked inside and said, “That’s not enough. I’m going to take your car.” There was $340 in the wallet. You took the car key from his set of keys, which you returned to him. You said if he called the police, you would come back and kill him. You drove off in his car.
As a result of the assault, Mr Kneebone suffered pain and swelling to his forehead, a sore neck, and two black eyes.[12]
[12][2018] VCC 1955, [4]–[8].
In applying the principle of totality, I will also have regard to the sentence of four months’ imprisonment that was imposed on you on 15 December 2020.
Prospects of rehabilitation
You have pleaded guilty to the current matter and I accept that, apart from its utilitarian value, it also bespeaks remorse for your actions. You are still relatively young (24 years of age)[13] and you have expressed a desire to receive counselling to deal with the underlying issues identified by Ms Lechner stemming from your difficult childhood. You have a supportive mother. Your antecedents are limited. Consequently, I consider you have reasonable prospects of rehabilitation.
[13]You were born on 16 December 1997.
Although specific deterrence still has significance in punishing you for your offence, it can be given less weight because of your rehabilitative prospects.
Solitary confinement
Prison conditions are harsher nowadays because of COVID-19 measures. I will take that into account in your favour. But over and above those measures, you are undergoing solitary confinement because of the nature of your offence. I was informed, and it was not disputed, that you are required to spend 23 hours a day in your solitary cell. I will reduce your sentence because of the harshness of those arrangements, but I must also bear in mind what was said by the Court of Appeal in Byrne v The Queen.[14] In that case, the Court of Appeal considered an appeal against the severity of a sentence in a prison stabbing case. Kyrou and Osborn JJA said this:
[21] It is also relevant that the applicant’s lockdown has been the product of his own behaviour. In particular, an assault of the kind here in issue gives rise to questions of protection of the community including obvious and significant issues of ongoing duty of care to prison staff and other prisoners. Whilst the burden of the circumstances in which the applicant has been held must be acknowledged, the origin of that burden must moderate the mitigatory effect which can be given to it. It is also relevant that the applicant’s circumstances within the prison system may change.
[22] Finally, the prison context in which this sickening assault took place necessarily requires substantial weight to be given to the factors of general and specific deterrence.
[14][2020] VSCA 289.
Summary of mitigating circumstances
I will now summarise what I consider are the mitigating circumstances in your favour.
First, your early plea of guilty.
Second, the fact that you have pleaded guilty in a time of pandemic where there is a massive backlog of cases to be tried.[15]
[15]Worboyes v R [2021] VSCA 169; 96 MVR 344. At [39] of Worboyes, the Court said “…a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
Third, the fact that you are in custody when conditions are harsher because of the pandemic.
Fourth, the fact that you are in solitary confinement because of the nature of the offence.
Fifth, your remorse.
Sixth, your youth.
Seventh, your extremely disadvantaged childhood.[16]
[16]Bugmy v R [2013] HCA 37; 249 CLR 571.
Eighth, your mental health issues.[17]
[17]R v Verdins [2007] VSCA 102; 16 VR 240.
COMPARABLE CASES
In working out an appropriate sentence to impose on you, I have had regard to a number of sentencing cases concerning the infliction of serious injury,[18] including some cases where serious injury or injury was inflicted in prison.[19] Each case has to be decided on its own facts but I derived some assistance from those cases.
[18]Chol v R [2016] VSCA 252 – PG to ICSI – D punched and kicked V – TES of 4y9m with NPP of 3y3m; Gence v v R [2021] VSCA 188 – PG to ICSI (GV) – V set on fire by N who was in company with D – V also struck with metal poles by N and D when trying to escape – On appeal, D sentenced to 11y with NPP of 7y6m; DPP v Hudgson [2016] VSCA 254 – PNG to ICSI (GV) – D struck V with a hammer – On appeal, D sentenced to 5y with NPP of 4y; Lukudo v R [2019] VSCA 248 – PG to ICSI – D chased and stabbed V eleven times – D sentenced to 9y with NPP of 6y9m; R v Nash [2013] VSCA 172 – PG to ICSI – D kicked V in face – D sentenced to 7y; DPP v Zullo [2004] VSCA 153 – PG to ICSI – D kicked and punched V repeatedly – On appeal, D sentenced to 7y with NPP of 5y.
[19]DPP v Bennett & Teuira [2020] VCC 737 – PG to ICSI (GV) – knife/shiv attack on Tony Mokbel by two offenders in their early 20s – Sentences of 9y9m; Byrne v R [2020] VSCA 289 – PG to ICI (sic) D, unprovoked, attacked V with his fists – 5y6m; Hope & Pua v R [2018] VSCA 230 – PG and PNG to ICSI et al – D1 and D2 punched and stomped on prison officer – D1 fell to be sentenced as a serious violent offender – D1 sentenced to TES of 10y and NPP of 7y; D2 sentenced to 8y with NPP of 5y.
SENTENCE
I sentence you to eight years’ imprisonment.
I set a non-parole period of five years.
I declare that you have served 366 days by way of pre-sentence detention, not including today.
S6AAA declaration
But for your plea of guilty, I would have sentenced you to 11 years’ imprisonment with a non-parole period of eight years.
Miscellaneous
As requested by your counsel, I direct that Ms Lechner’s two psychological reports be provided to Corrections Victoria to assist them with responding appropriately to your mental health issues.
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