R v Dalby and Roach
[2005] VSC 190
•3 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1477 of 2004
| THE QUEEN |
| v |
| BRETT DAVID DALBY & TRAVIS LEE ROACH |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 13 – 15, 18 April 2005 | |
DATE OF SENTENCE: | 3 June 2005 | |
CASE MAY BE CITED AS: | R v Dalby and Roach | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 190 | |
CRIMINAL LAW – sentencing – intentionally causing injury – intentionally causing serious injury – joint enterprise as to part – ss.11, 14, 16 Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Office of Public Prosecutions |
| For the Accused - Dalby - Roach | Mr P Chadwick Mr G Meredith | Pearsons Lethbridges |
HIS HONOUR:
In the early hours of Monday, 3 June 2003 in Bourke Street, between Swanston and Russell Streets, Melbourne, one Thane Lebeter was stabbed seven times in the chest, back, left arm and hand. Each of you has now pleaded guilty to offences arising out of this stabbing and it is my duty to sentence you according to law.
Earlier in the evening of Lebeter’s stabbing he had been at the Carlton Hotel in Bourke Street where he met you, Dalby, probably in the course of trying to buy drugs. Earlier, again the two of you had met in the same bar and were drinking together for a considerable part of the evening of 2 June and the early hours of 3 June. Each of you and Lebeter left the bar of the hotel at one point to go outside – again probably for the purpose of a drug transaction of some kind. You, Dalby, returned to the hotel shortly afterwards in a distressed state and told bystanders that you had been sprayed with some kind of capsicum or similar spray by Lebeter. You washed your face, and some time afterwards, both of you went in pursuit of Lebeter. You caught up with him in the street and shortly afterwards, the stabbing occurred which very nearly led to his death. I have described this event in this way because of the concessions made by the Crown in respect of the criminal responsibility of each of you in respect of this assault upon Lebeter, which concessions affect the penalties I am about to impose upon you.
Each of you was subsequently arrested by police and charged with offences arising out of this vicious assault. You were committed for trial and in due course were the subject of a joint presentment in this Court. You, Dalby, were presented on counts of attempted murder, intentionally causing serious injury and recklessly causing serious injury. You, Roach, were presented on only the two latter counts.
Before your joint trial commenced the Crown accepted that you, Roach, although complicit with Dalby in an assault on Lebeter never agreed with him that a knife would be employed or that such assault would be such as to result in serious injury. As a consequence of these concessions by the Crown a new presentment was filed alleging one count of intentionally causing injury against you to which you pleaded guilty. At the time he announced the Crown concessions to which I have referred and the course which he expected you to take, the prosecutor also informed the Court that he did not intend to call you upon Dalby’s trial for attempted murder which was then still proceeding. You had made no statement implicating Dalby and indeed, the material before me strongly suggests that you have no memory of the events of that night due to your state of intoxication on that evening.
The injuries suffered by Thane Lebeter in this assault were life threatening. They included a knife wound to his heart, a punctured lung, pierced liver and diaphragm and stab wounds to his chest and arm. At one point following the stabbing he was said to have been clinically dead but was resuscitated by ambulance personnel and, subsequently by staff at the Royal Melbourne Hospital. He required surgery to repair damage to his heart and other internal organs and remained in hospital for three weeks. He was left with nerve damage as a result of his injuries, the effects of some of which, at least, will be permanent. At the time this matter was listed for trial in this Court the Crown was unaware of Lebeter’s whereabouts and he has filed no victim impact statement.
Your trial on the charges upon which you were presented, Dalby, proceeded after the case against Roach was resolved. However, after some days you sought to be re-arraigned so that you could plead guilty to intentionally causing serious injury to Lebeter. You were so re-arraigned and entered a plea of guilty to that offence whereupon the Crown led no further evidence on the charge of attempted murder. The jury acquitted you of that charge and convicted you of the charge to which you pleaded guilty. The Crown conceded that it could not establish that you actually wielded the knife which injured Lebeter although, of course, by your plea of guilty to intentionally causing serious injury you have admitted all the elements of that offence as a principal offender. It is on that basis that you will be sentenced.
Travis Lee Roach
You are 26 years of age having been born on 30 July 1978. Your present situation, according to Dr Lester Walton, psychiatrist, and Mr Ian Joblin, forensic psychologist, whose reports are before the Court, is that you have a very serious alcohol problem of long standing which will inevitably lead to your early death unless you do something about it.
Your history, as recounted to Dr Walton and Mr Joblin in similar terms is accepted by the Crown as being at least broadly accurate. Accordingly I propose to act upon it in determining an appropriate sentence in your case.
You were born in Bega, New South Wales of parents who, themselves, exhibited serious social and psychological problems. Your father, who was part Aboriginal, left your mother when you were an infant. They both had longstanding alcohol problems. You have six siblings, all of whom, together with you, spent a traumatic childhood and teenage years in care involving both institutions and foster carers. Between the ages of four and eleven you were subjected to sexual abuse by one of your mother’s subsequent partners, after which time you began to live a transient and homeless existence. You attended a number of different primary schools and three different secondary schools. You did not progress beyond Year 7 at school and, although you have made some progress with literacy in the various penal institutions in which you have been more recently confined, you still remain, according to Dr Walton, substantially illiterate. You have held down a number of short term periods of employment in unskilled occupations but have had no such employment in recent years.
Since the age of thirteen you have consumed alcohol in what appears to have been increasing amounts. Dr Walton reports your regularly having consumed in excess of 4 litres of wine daily in the period before he saw you in 2003. You have made numerous suicide attempts involving motor vehicles, self-inflicted lacerations and an attempted hanging. You have been the subject of psychiatric treatment in a number of different public psychiatric hospitals and you have been an outpatient of the Aboriginal Health Service in Fitzroy where you were treated by a specialist psychiatrist.
Dr Walton is of the opinion that nothing short of a residential program involving close supervision will save you from an early death. You have displayed, at times, evidence of psychosis involving hallucinations and other severe symptoms. Ongoing psychiatric treatment is seen as problematic, having regard to the fact that medications used to control alcoholic hallucinations which you have been suffering can actually aggravate liver dysfunction, as does, of course, your persistent alcohol intake.
Mr Joblin is of a not dissimilar opinion to Dr Walton. He considers you to have grave psychological and psycho-social problems although, when he saw you in 2002, he did not consider you to be psychotic. Like Dr Walton, he was of the opinion that you should not be left to your own resources and that you require supervision.
Your history of criminal offending commenced in 1995 when you were a teenager. It has involved some seventeen court appearances, mainly for offences of dishonesty, some street offences and one offence of assault. As Mr Joblin commented, they are offences which are commonly associated with the sort of lifestyle you have led over the last ten or more years, stealing and begging to survive and coming into contact with the justice system as a result.
During the time you have been in custody you have undertaken rehabilitation courses with respect to alcohol and drug abuse. You have had contact with AA and its program within the prison system. It is to be hoped that your willingness to engage in these programs demonstrates a real desire on your part to overcome your problems.
Your counsel, Mr Meredith, submitted that although your history, in terms at least of your lifestyle and your alcohol and drug abuse is appalling there is some possibility at least of your receiving help from your one relative who has taken some significant interest in your welfare. Christine Parker described herself as your father’s niece. She lives at Geelong and has rescued you on at least one prior occasion when you were in trouble with the law. She gave evidence to the effect that if you were released from gaol you could live with her, provided you undertook some remedial action with respect to your alcohol abuse and associated activities. She told the Court that she would accept you only on the basis that you did not drink. Whilst laudable, such a condition must be seen to be somewhat unrealistic. Without help of a serious kind the inevitability of your succumbing to your alcoholism is obvious. However, she is to be commended for her willingness to assist you and, whatever happens as a result of the sentence I am about to pass upon you, she will be a very useful person to have on your side. You need all the help you can get to try to turn your life around and Mrs Parker could be at least part of that help.
In sentencing you I am required to take into account the matters referred to in s.5 of the Sentencing Act 1991. In your case, it would seem that the paramount consideration in selecting an appropriate sentence must be providing you with the greatest possible opportunity of taking your life in a direction different to that which it has taken so far. Other considerations relate to general and specific deterrence and a denunciation of the violence in which you were prepared to engage in aid of your co-accused, Dalby.
The sentence which will be imposed upon you will mean that you will be eligible for parole almost immediately. You will have a period of parole during which it is to be hoped you are assisted by the parole authorities to make some inroads into the alcohol problems which beset you. You would be fortunate indeed if, with their assistance, you were able to obtain a residential placement in an alcohol rehabilitation program. On the medical evidence which I have read that would give you the greatest possibility of success in overcoming your destructive habit. However that may be you will have Mrs Parker as a backstop provided you are prepared to face the enormous but achievable object of ensuring that your alcoholism goes into remission. Dr Walton is of the opinion that if you do not achieve this object you will not be a concern to the criminal justice system in this state or indeed anywhere else for very long. You will die.
Brett David Dalby
You were born on 15 August 1977. You are accordingly 27 years of age.
I have read a report of Ms Caterina Volny, a psychologist, who assessed you in August 2003 with respect to a sentence you were about to receive for two counts of attempted armed robbery arising out of an event which occurred in December 2001. On 18 August 2003 you were sentenced by his Honour Judge Ross in the County Court to three years’ imprisonment with a minimum of two years in respect of these offences. Thus, were it not for the offence for which I am about to sentence you, you would have been eligible for parole in August of this year.
Ms Volny took an extensive history from you for the purposes of her report, which history is not contested by the Crown. Accordingly I shall have regard to it for the purpose of determining your antecedents and your situation generally.
Your parents separated when you were four years old. You had one sibling who, significantly, has apparently had no contact with the criminal law. You told Ms Volny that you did poorly in school, particularly in English. When you left you completed a few months of a building course and from time to time worked in your brother’s building business for periods of up to a year. On each occasion that you have ceased employment with your brother it has been because of your relapse into drug use. You have some contact now with your parents but none with your brother and none with a 3 ½ year old son.
Your mother told Ms Volny that you had a long history of heavy drug use, particularly heroin and that that habit had commenced when you left school in Year 10.
When you were in Year 7 you were assessed at the Royal Children’s Hospital with respect to a number of cognitive skills as being some three years behind your peers. A test administered by Ms Volny demonstrated a depressed capacity to complete visual tasks, language skills in the “borderline” range of functioning, a poor capacity for the expression of ideas and impulsivity.
The history you gave Ms Volny with respect to your substance abuse included that you commenced drinking alcohol at the age of fifteen or sixteen and that when you were seventeen or eighteen years of age you were using marijuana as well on a daily basis. You reported using heroin at that age and then daily for a period of two years. You also told Ms Volny that you used amphetamines and that at some point in about 2001 you commenced on a methadone program with respect to your heroin habit. Ms Volny’s opinion was that you have suffered from severe substance abuse from a young age which has affected your employment and general lifestyle. She thought that you suffered from a chronic, mild form of depression and that you had some indications of language disorder. She considered, in August 2003, that you then had good motivation to cease your drug addictive behaviour and that you ought to attend an intensive drug rehabilitation program.
The further presentment in this case, which has been conceded on your behalf, details some 19 court appearances since 1995 involving a range of offences many of which are for dishonesty but some of which involve the possession of a regulated weapon. It may be reliably inferred that in each of those cases you were carrying a knife. They are not atypical of a drug addicted young man existing on the fringe of society, engaging in dishonesty to exist and to support a drug addiction. Indeed, as you are probably well aware, many young men similar to you are dealt with by the criminal justice system every year in this State.
These prior convictions are significant when one considers the matter upon which you are about to be sentenced.
The offence for which you are to be sentenced was about as violent an attack as one can imagine short of one which ended in the victim’s death. As I have already noted he was but millimetres away from death. You are indeed fortunate that he was treated so competently by ambulance and hospital staff. Had he not been you would now be facing a sentence for murder.
Further, the attack on your victim was premeditated. You left the hotel where you were drinking with the intention, at least, that he be done a serious injury and that a knife be used to do it. This, and the violence of the attack itself, places this assault at the more serious than average point on any scale of seriousness.
Your counsel has made a plea on your behalf which emphasised the fact that you have been in custody for a large part of the last ten years and that you now realise that you must change if you are not to spend the greater part of the rest of your life in the violent and destructive environment of the prison system. He referred to your having had an “attitude rethink” as a result of a violent assault upon you at Barwon Prison. He pointed to the support your parents have invariably shown you and the efforts which you have made whilst incarcerated to better yourself, understand your drug abuse problem and change your ways for the better.
I must take into account your plea of guilty to this offence, albeit made late but as soon as the Crown indicated its preparedness to abandon the charge of attempted murder. Even if it signifies no more than an acceptance of the inevitable result of a trial it still enures to your benefit when your sentence is being fixed.
I am also required to take into account the matters referred to in s.5 of the Sentencing Act. In your case denunciation by society of violent assaults, particularly with weapons, is a significant sentencing consideration as are general and specific deterrence.
Although you and Roach have each pleaded guilty to an offence arising out of the assault on Lebeter the offences for which you are each being sentenced are quite different and yours is, of course, far more serious. Accordingly, questions of parity have little or no significance in fixing your sentence and the principle of proportionality demands that your sentence reflect the full gravity of your offending.
Although it was initially thought that your attack on Lebeter was carried out whilst you were on bail, the Court has ascertained since the plea hearing that that was not the case. You should have been on bail in June 2003 but, due to an administrative oversight, you were not. You will receive the benefit of this oversight in that you will not have to serve your new sentence without the benefit of some concurrency with the sentence you are serving at present. Sections 16(1)(e) and 16(3C) of the Sentencing Act 1991 do not apply to your case. They would have required that any term of imprisonment imposed for this offence be served cumulatively on the sentence you are currently undergoing unless the Court ordered to the contrary. Taking into account the principle of totality, that is to say the total sentence appropriate to all of the offences for which you are to be imprisoned (including those dealt with in the County Court by Judge Ross), it is appropriate that there be some degree of concurrency between the sentence you are presently undergoing and that which is about to be imposed. That concurrency will be reflected in the order which I make.
It is to be hoped that in the time that you must now remain in gaol you will reach a realisation that if you continue to offend in the way you have in the past your future will be indeed bleak. It is also to be hoped that you will take advantage of whatever programs are available to you whilst you are serving your sentence to assist you to take a new direction in your life. Difficult as that will be it is not impossible.
Conclusion
Travis Lee Roach
It is the sentence of the Court that you be imprisoned for two years. It is further ordered that you serve a minimum of nine months before being eligible for parole. There will be a declaration that the period of 258 days is to be reckoned as a period of imprisonment already served under this sentence. This declaration and the fact that it was made will be entered in the records of the Court.
Brett David Dalby
It is the sentence of the Court that you be imprisoned for five years. It is further ordered that four years of that sentence be served cumulatively on the sentence imposed by the County Court on 18 August 2003 which you are presently serving. It is further ordered, pursuant to s.14(1)(b) of the Sentencing Act 1991, that the new single non-parole period in respect of all sentences which you must serve or complete is 4 ½ years, such non-parole period dating from 18 August 2003. It is further declared pursuant to s.18 of the Sentencing Act 1991 that the period of 94 days be reckoned as a period of imprisonment already served under the sentence you have still to serve or complete. This period is calculated as being 79 days referable to the sentence for the offence of 3 June 2003 (2 June 2003 to 17 August 2003) and 15 days with respect to the sentence imposed by the County Court on 18 August 2003 for the offences of 3 December 2001. This declaration and the fact that it was made will be entered in the records of the Court.
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