R v Donnelly
[2019] VSC 777
•28 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0282
| THE QUEEN | |
| v | |
| BRAYDEN DONNELLY | Accused |
---
JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 October 2019 |
DATE OF SENTENCE: | 28 November 2019 |
CASE MAY BE CITED AS: | R v Donnelly |
MEDIUM NEUTRAL CITATION: | [2019] VSC 777 |
---
CRIMINAL LAW – Sentence – Recklessly causing serious injury – Accused stabbed victim in the abdomen causing life-threatening injuries – Whether attack carried out due to fear or anger – No aspect of self-defence to the offending – Serious instance of offence of intentionally causing serious injury - Intellectually disabled offender – Verdins (2007) 16 VR 269 considerations - Prior convictions for violence – Just punishment – Denunciation - Deterrence – Protection of community – Rehabilitation – Sentence of five years nine months’ imprisonment with a non-parole period of three years six months – But for plea of guilty, sentence of seven years six months’ imprisonment with a non-parole period of five years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J Anderson | Camerons Lawyers |
HIS HONOUR:
Introduction
Brayden Peter Donnelly, you have pleaded guilty to recklessly causing serious injury (‘RCSI’) to Bradley Hayman on 24 February 2018, and have admitted prior convictions contained in a Criminal Record filed in this matter.
The maximum penalty for RCSI is imprisonment for 15 years.
As the contents of these reasons for sentence will clearly reveal, you have led a tragic life up to this point, blighted by your long-term drug abuse in the context of an impoverished and deprived background in which you have been abandoned and mistreated. In addition, you suffer from an intellectual disability which greatly limits your level of functioning and which in many ways has restricted your capacity to lead a more fulfilling existence.
Having said those things, neither your sad background nor your limited intellectual capacity, albeit that the latter, in particular, will have a mitigating effect on sentence, changes the essential nature of the serious crime to which you have pleaded guilty, or the inevitability of the fact that your offending can only be dealt with by a significant term of imprisonment.
Your background
It will be convenient to say something briefly of your personal background in setting the scene for a description of your offence.[1]
[1]That background is more fully set out in the Outline of Plea Submission filed on your behalf (Exhibit 1), and in the expert reports of Dr Jennifer McDowall and Ms Carla Lechner to which I will later refer in some detail.
You are 25 years of age, having been born on 27 December 1993. Your parents separated when you were 12, and you have no contact with either of them. You have three older siblings and two younger half-siblings, with whom you also have no contact. You were brought up in a violent and neglectful home, and involvement of Child Protection in the life of the family was a frequent occurrence.
You attended various primary schools in Shepparton, and then your secondary education went no further than Year 7, when you were expelled from McGuire College early in the year. For a short time the next year, you attended Leaps and Bounds, an education facility for troubled adolescents, but you did not progress.
You have little history of employment, having worked sporadically in labouring positions.
You were first diagnosed with an intellectual disability in your teenage years. An assessment of your intellectual capacity in July 2019 determined that your full-scale IQ was 51 and that you meet the criteria necessary for the diagnosis of a mild intellectual disability. That adjective does not do justice to the extent of your limitations. Amongst other things, you are virtually illiterate, and have very limited independent life skills and social skills.
In 2006, at the age of 12, you began associating with Joshua McLean and Joshua’s mother, Kelly McLean, an important figure in the offending to which you pleaded guilty. It became a regular occurrence for you to smoke cannabis while staying over at the McLean house from that age.
You commenced a sexual relationship with Ms McLean when you were 13 or 14. She was 18 years your senior. This relationship was concealed from DHHS until you attained the age of 18.
You and Ms McLean had two children together, Poppy who is now 8, and Tiana, 6.
During the course of the relationship which was described by your counsel as a toxic one, Ms McLean abused methylamphetamine, morphine and other drugs. She introduced you to drug use at an early age and the abuse of morphine became a serious problem for you.
When you were aged 15, your mother moved from Shepparton to Frankston. You remained in Shepparton living with Ms McLean.
In the many years of your relationship with Ms McLean, family violence was a common feature. The relationship was very volatile, and there were a number of periods of separation, and intervention orders taken out on either side.
Your offending; 24 February 2018[2]
[2]Mr Anderson described the written Summary of Prosecution Opening for Plea as setting out a largely agreed position. To the extent that any witness statements in the depositions went beyond the opening, he urged me not to have regard to them. I have complied with that request.
At the time of your offence, you were in a period of separation from Ms McLean. An intervention order was in place preventing you from going within 200 metres of where she lived at 9 Phillips Street, Shepparton, your former place of residence. Nonetheless, it seems she permitted you to be present there from time to time.
At about 10.00 am on Saturday 24 February 2018, Joe Cavallaro, a former partner of Ms McLean, attended the premises to visit his son Jesse who lived there with his mother. Ms McLean was not there at the time. Shortly after the arrival of Mr Cavallaro, you attended at the premises looking for Ms McLean. You then remained at the premises for some hours awaiting her return. At some point during the day, she did come home, and spoke briefly with you. She left the address, leaving you there.
That afternoon, Mr Hayman and his 14-weeks-pregnant girlfriend Hayley Quirk attended at a house in Malcolm Crescent, Shepparton, occupied by Lisa Fisher. Mr Hayman was wearing only board shorts and shoes. The couple were trying to fill in time whilst they used the nearby laundromat.
Ms McLean, who was unknown to Mr Hayman, arrived at Ms Fisher’s premises in her motor car and was introduced to Mr Hayman and Ms Quirk. Others were also present. The group of people sat around chatting for some hours. Ms McLean told the group that you were at her home, and of the history of animosity between the two of you. She outlined her fears about returning to the house to get her belongings. Mr Hayman said that he was against violence towards women and that he would assist her to get her belongings and protect her if necessary.
At about 7.25pm, Mr Hayman and Ms Quirk indicated that they were leaving. Ms McLean offered them a lift, which they accepted. Mr Hayman grabbed a small, silver-coloured pocket knife that was on a table in the house. Ms Quirk asked him why he had picked up the knife, and he said to her, ‘I don’t know. Why not?’ In response to her assertion that he did not need a knife, he said, ‘You never know’. It seems that Mr Hayman attached the knife to his waist.
Mr Hayman and Ms Quirk got into Ms McLean’s car, and she drove away. She asked them if they would mind if she went past her house to get some clothes before she took them to the laundromat, and they agreed. The vehicle pulled up outside 9 Phillips Street at about 7.40pm. Ms McLean told her passengers she would only be about five minutes, but that they were welcome to come in. All three of them went inside the house.
Ms McLean walked down the hallway to her room, followed by Mr Hayman and Ms Quirk. She found you in the bedroom. The room was in a very messy state with clothes and other items strewn across the floor.
When Ms McLean entered the bedroom, you said to her, ‘What the fuck do you think you’re doing?’ She replied, ‘I’m just grabbing my stuff then leaving’. You said to her, ‘You’re not going anywhere’, to which she replied, ‘I’m leaving you Brayden, you’ve got no choice’.
Ms McLean began packing some of her belongings. You stood close by her while she did so, continually asking her why she was doing so. At one point when she picked up an item, you grabbed her arm and said the item was not hers. She replied that it was, and you snatched the item out of her hands and threw it onto the floor. You pushed her back a little, without much force. At this point, Mr Hayman told you, ‘Don’t make it physical, mate. Leave it alone. If you want to make it physical, we will step outside’. You told him to stay out of it because it had nothing to do with him.
In the oral plea opening provided by Ms Churchill for the prosecution, which was substantially based on the filed Summary of Prosecution Opening for Plea,[3] it was indicated that at this point, you struck Ms McLean, causing her to fall back onto the bed. Your counsel Mr Anderson indicated that whilst the opening was ‘largely an agreed position between the parties’,[4] you took issue with the proposition you had struck Ms McLean. In the circumstances, I do not need to make any finding on the question of whether or not you did strike her.
[3]Exhibit A.
[4]Transcript 25.
You apparently walked over to Mr Hayman, who was standing in the doorway of the bedroom, holding the top of the door frame with his right hand. You asked him if he was trying to intimidate you, which he denied.
At about this point, Mr Hayman started recording events in video mode on his mobile phone. The recording commenced at 8.03pm. The recording was tendered as Exhibit D on the plea hearing, and I have viewed it carefully a number of times. The recording is of great assistance in understanding the events in the immediate lead-up to your stabbing of Mr Hayman. It is also of great assistance in showing the dynamic between you and Mr Hayman, in light of the claim made on your behalf before me that you stabbed him out of fear, and that your actions were, as put by your counsel, ‘a notch above self-defence’.
The first two minutes of the recording showed you in the bedroom, close to Ms McLean while she sorted through her possessions on the floor. On several occasions, you raised your voice at her. At 2:02,[5] Mr Hayman told you to let Ms McLean go through her own possessions. You responded, firmly, ‘Don’t tell me what to do’.
[5]All references are to minutes and seconds from commencement of recording.
About two minutes and twenty seconds into the recording, Mr Hayman warned you not to touch Ms McLean again, and told you he was recording you for the police. He warned you that if you touched her again, he would beat you. He then handed the phone to Ms Quirk and she recorded events from then onwards for a time.
You moved closer to Mr Hayman and asked him why he was recording you. He said it was because you were pushing Ms McLean around, which you denied. When he told you not to touch Ms McLean, you said, ‘I am talking to my woman’. By this time you were standing close in front of Mr Hayman, and raising your voice at him.
Mr Hayman made it clear to you at this time that he was there to stop you assaulting Ms McLean.[6]
[6]3:23.
At 3:41, Ms McLean passed an item through the doorway to Mr Hayman. You grabbed the item, and a fight then ensued between you and Mr Hayman. At the start of proceedings, you pushed him forwards and appeared to grab at his throat. During the struggle, Mr Hayman at one point, said, ‘Grab my throat again, fuck head. I’ll snap your neck’. After about a minute, Mr Hayman having got the better of you, asked if you were going to stop, and said that if you didn’t, he would knock you out. You said you would stop, and he released you.
During the course of the fight, Ms McLean yelled abuse at you, threatened you, and punched you a number of times. It should be noted, however, that Mr Hayman himself did not deliver any blows to you, and seemingly did no more than endeavour to control you, which he successfully did.
On being released by Mr Hayman, you went and stood right in front of him and stared at him. After about a minute of this, Mr Hayman said to you, ‘You can’t stand over me’, and you replied, ‘It’s not about standing over you, bro. I’m sitting here thinking’.
At this point, Mr Hayman asked you to pick his sunglasses up. They had apparently been knocked from his head during the scuffle. Upon your refusal to do so, he asked you to move over so that he could look for them. You complied with this request. He found the sunglasses after looking for a minute[7].
[7]8:03.
Shortly after Mr Hayman located his sunglasses, he received his phone back from Ms Quirk.
About 9 minutes and 25 seconds into the recording, Mr Hayman proceeded down the hallway and apologised to Mr Cavallaro who was still seated in the lounge room. He also asked for a cigarette but Mr Cavallaro did not have any. Mr Hayman then walked back to the doorway leading to the bedroom.
Although this was not shown on the footage, you grabbed a filleting knife that was in a scabbard under a blanket on the bed. Ten minutes and nine seconds into the recording, Ms McLean, having seen you pull the knife from the scabbard, screamed out, ‘Ahhh knife!’.
You then charged past her and into Mr Hayman, pushing him up against the wall in the hallway. He dropped the mobile phone onto the floor but it continued to record, catching snippets of the vision and all of the audio of your attack upon Mr Hayman. Mr Hayman could be heard to yell out, ‘Oi, dude, dude, don’t cunt, fuck off dude, don’t fucking stab me cunt. I swear to God, don’t stab me’, as he ran away from you in the hallway and you advanced upon him.
In spite of his retreat from you, and his repeated demands not to be attacked, you stabbed him once with the knife to the upper abdomen. This caused him to immediately lose his breath, and his vision went dark, as he described it. He saw blood squirt out of the hole in his chest. He yelled out, ‘Don’t cunt, don’t, you’ve already fucking got me, yeah?’.
In spite of that, you continued your attack upon Mr Hayman as he tried to get away from you. You stabbed him twice to the right bicep, and also slashed him to the face, cutting his chin.
Mr Hayman ran into the lounge room past Mr Cavallaro. You proceeded quickly in pursuit of him, holding the knife in your right hand. Ms McLean yelled out, ‘Stop him, Joey. He’s got a knife’. Mr Cavallaro grabbed your arm and said to you, ‘If you do this shit, Brayden, you’ll go to gaol. Think about it’. Mr Hayman continued to yell at you, ‘Don’t stab me, don’t stab me’.
Mr Cavallaro told Mr Hayman to get out the front door. You said to Mr Hayman, ‘Do you still want to fight me now?’ Mr Hayman escaped out the door.
During your attack upon Mr Hayman, Ms Quirk, frightened for her safety and that of her unborn child, hid in the bathroom. From outside the house, Mr Hayman repeatedly asked for you to let her out of the house. You did so.
Having run out of the house, Mr Hayman ran into the front yard of the adjoining property at 7 Phillips Street. You followed him, still armed with the knife.
Ms McLean and Mr Cavallaro also went outside. Seeing you close to Mr Hayman, and fearing that you would further attack him, Ms McLean went to her vehicle, and with Mr Cavallaro in the passenger seat, drove to the driveway of number 7, intent on running you over.
Mr Hayman was hunched over leaning up against a fence inside number 7, struggling for breath. He had by this time pulled out the pocket knife in self-defence. You walked towards him, still armed with the boning knife. Jardi Law, a person who had pulled up in a car in the street at about this time, knew both you and Mr Hayman. He saw that Mr Hayman had been stabbed and observed you with the knife in your right hand. He told you to fuck off. You said, ‘I’m trying to help him’, to which Mr Law responded, ‘Fuck off mate, you stabbed him’. You denied this.
Another witness in Phillips Street, Ivan Novoselec, observed Mr Hayman backing away from you as you proceeded towards him with the knife. Mr Hayman repeatedly yelled at you, ‘Leave me alone’. Mr Novoselec himself asked you to leave Mr Hayman alone.
At one point, Ms McLean put her car into gear, and drove forwards in the driveway of number 7, striking you with the vehicle. You went onto the bonnet before sliding onto the ground. You were uninjured.
A witness from number 7, Clint Lammon, observed you being struck by the car. He saw the obviously severely injured Mr Hayman struggling for breath in the front yard of the house. Mr Lammon asked you to drop the knife you were holding. He described you as being angry and aggressive as you paced around. He said you were mumbling about having spent 10 years with Kelly. You then, according to Mr Lammon, aggressively approached Mr Hayman, leading Mr Lammon and his brother to yell at you to desist. You told them that you were going to help Mr Hayman into the car so he could go to the hospital.
Mr Hayman was then assisted into the front seat of Ms McLean’s vehicle. There is some evidence that you were one of those who assisted. Ms McLean reversed out of the driveway and drove towards the hospital. The vehicle ran out of petrol a short distance into the journey. Another vehicle was flagged down, and Mr Hayman was driven to the Goulburn Valley Hospital Emergency Department where he was treated.
After Ms McLean drove away from 7 Phillips Street, you walked over to Mr Lammon and his brother with the knife still in your hand. You said to them, ‘I have to get rid of this or I’m going back to gaol’. You returned inside 9 Phillips Street and reappeared shortly afterwards without the knife. You then ran away from the scene along Phillips Street and out of sight.
Police investigation
Police were called to the crime scene and an examination commenced. The knife you had used to attack Mr Hayman was found inside a wall cavity in the hallway of 9 Phillips Street where you had hidden it. The knife sheath was located in the bedroom. Mr Hayman’s mobile phone was found on the floor of the dining room of the house.
You were arrested on Monday 26 February 2018, walking south along Wyndham Street, Shepparton. You were later interviewed and denied being at 9 Phillips Street, Shepparton, at any time on 24 February 2018.
The pocket knife in the possession of Mr Hayman was found in a rubbish bin close to the Goulburn Valley Hospital on 26 February 2018. Ms McLean admitted having disposed of it there.
Medical treatment of Mr Hayman and description of injuries
Having arrived at the Goulburn Valley Hospital, Mr Hayman was airlifted to Royal Melbourne Hospital in a critical condition. The injuries sustained by Mr Hayman and the treatment he received were outlined by a Forensic Physician, Dr Jason Schreiber.[8] On presentation into the Emergency Department, Mr Hayman was observed to have penetrating injuries to the breast-bone area of the abdomen, the face and two to the right bicep. He went into cardiac arrest due to his injuries. He required resuscitation before being intubated. He had sustained damage to the right lower lobe of his lung, the outer lining of his heart (the pericardium), his diaphragm, his liver, and the pulmonary artery, all consequent upon the stab wound to the abdomen. All of these areas of damage required emergency surgery to save the life of Mr Hayman. He had air and fluid in his pleural space. He had a collapsed lung. There was what was described as massive blood loss and a subsequent state of hypovolemic shock. There was bleeding to the brain. Complications experienced by Mr Hayman included acute renal failure and sepsis. After multiple life-saving surgical interventions involving teams from numerous surgical areas, he spent five weeks in the Intensive Care Unit receiving a vast array of specialist medical treatment.
[8]Depositions 210.
Dr Schreiber described the injuries received by Mr Hayman as ‘severe and life-threatening’. He said that there is no doubt that without the treatment by ambulance paramedics and in hospital Mr Hayman would have died. As to future risks, he noted that there would be scars, and that there will be a high risk of failure or spontaneous injury to a variety of organs including the lungs, heart, kidney, liver, and brain, with a risk of future seizures. He stated that Mr Hayman was likely to have a poor quality of life in future due to his injuries.
The reason for your offending
It was asserted on your behalf during the plea hearing that your crime was one committed by you in an act of excessive self-defence, in which you had been put in fear by a combination of Mr Hayman’s actions and the surrounding circumstances, impacted upon by your intellectually disabled state and the effect of that upon your thinking processes. It was submitted that your conduct was ‘a notch above self-defence’. It was submitted that when you stabbed Mr Hayman for the first time, inflicting the wound to the abdomen, you did so in the belief that your conduct was necessary in self-defence, although it was acknowledged that the conduct was not a reasonable response in the circumstances as you perceived them.
Mr Anderson based this submission on a number of matters. He pointed to the physical confrontation between you and Mr Hayman, during which Ms McLean, a very significant person in your life, being both your partner and a parent figure, struck you, goaded you and threatened that you were going to get stabbed and killed. This happened in the context of her having brought a large, muscular stranger, that is, Mr Hayman, to the location. Mr Anderson pointed to the fact that Mr Hayman was equipped with a knife clearly visible at his waist, which although not produced by Mr Hayman before you stabbed him, would have been seen by you and would have been a cause for concern. Counsel submitted that Mr Hayman, by his words and conduct towards you, exerted physical dominance over you. He asserted that in the moments before you stabbed him, Mr Hayman transferred the mobile phone he was holding from his right hand to his left hand, freeing up his right hand for possible use of the knife, at the same time as saying, in an aggressive tone, ‘Fuck this’. He submitted that in the circumstances which existed here, an ordinary person would have had good cause to fear that his life was in danger. This was especially so for you due to the importance of Ms McLean in your life, and the intellectual disability from which you suffer, which, on the expert material, to which I will turn in detail later, may have interfered with your decision-making ability, and your ability to process rapidly evolving and unpredictable situations such as this one. Mr Anderson pointed also to your appearance in the mobile phone footage in the minutes leading up to your attack upon Mr Hayman. Although it might be considered that at some points, you were ‘staring Mr Hayman down’, in reality, your appearance was consistent with someone overwhelmed by the experience you were undergoing.
In short, Mr Anderson submitted that I should conclude that you attacked Mr Hayman with the knife because you feared that he was about to attack you with the knife in his possession, and that you believed your life was in danger.
He submitted that the first limb of the defence of self-defence was engaged. He acknowledged, however, that your conduct was unreasonable, and hence, the defence of self-defence would not apply.
In advancing these submissions, Mr Anderson asserted that the fact of Mr Hayman having accrued a number of convictions for crimes of violence is a relevant matter for me to take into account as showing that, to the extent that you had formed a perception of Mr Hayman that he was a menacing person, that that was a reasonable and accurate perception.
In addition, in support of the excessive self-defence contention, Mr Anderson asserted that the fact that you did not further attack Mr Hayman in the front yard of 7 Phillips Street when you could have done so, but rather, assisted him into Ms McLean’s car, showed that once Mr Hayman had been incapacitated, your aggression towards him ceased.
In her submissions to me, Ms Churchill conceded that there would have been an element of fear in your conduct, but she submitted that there was also an element of violence, anger or aggression. She submitted that the prior criminal history of Mr Hayman was irrelevant, as it could not inform your state of mind, that is, your subjective level of fear at the time, as you knew nothing about it. She submitted that the excessive self-defence argument mounted on your behalf failed. One thing which weighed against the self-defence contention was the disproportionate nature of your response. Furthermore, as you knew, Mr Hayman was clearly present for the purpose of protecting Ms McLean, and only intervened when you had assaulted her. Things settled down after the initial physical altercation between you and Mr Hayman. There was no ongoing threat to you, other than a conditional one relating to your treatment of Ms McLean. In those circumstances, the prosecution took issue with the characterisation of the claim on your behalf that your conduct was ‘a notch above self-defence’.
The detailed oral submissions made before me by Mr Anderson as to your reasons for stabbing Mr Hayman and the characterisation of what you did as ‘a notch above self-defence’ were supported, also, by a comprehensive analysis of the mobile phone footage and other available evidence set out in the Outline of Plea Submissions filed on your behalf. The overall submissions were comprehensive and detailed. I must say however, that I consider that the submissions were without force, and I reject them.
In my view, there is nothing at all which supports the contention that you were in fear of Mr Hayman at the time you attacked him, and had a belief that your attack was necessary in self-defence.
First, I note that you must have been well aware that Mr Hayman’s purpose in being at the premises was to offer physical protection to Ms McLean rather than to present a physical threat to you. He made that clear to you from the start. It is true that Mr Hayman spoke to you in an aggressive tone at times, and offered to fight you, but this was in the context of his seeking to control your aggressive and intimidating behaviour towards Ms McLean. The only physical altercation between the two of you before you stabbed him was instigated by you. Mr Hayman quickly quelled your conduct, and then, from that time onwards, offered no more physical force towards you.
Secondly, throughout the minutes leading up to your attack upon Mr Hayman, there was nothing about your appearance or your words that supports the contention that in any sense, you were in fear of him. Quite to the contrary. Before the physical altercation, you questioned Mr Hayman’s right to be there, you challenged his right to film and record you, and you forcefully denied his assertions that you were standing over and being violent towards Ms McLean. After he quickly bested you in the physical altercation, you stood up very close to him for an extended period, looking directly at him. When Mr Hayman said that you could not stand over him, you denied that you were doing so, claiming, instead, ‘It’s not about standing over you, bro. I’m sitting here thinking’. When asked by Mr Hayman to pick up his sunglasses which had been knocked off his head during the scuffle, you immediately and assertively answered, ‘You pick them up’.
Your conduct after the scuffle between you and Mr Hayman, in standing right up in his face as you did, and the other aspects of your behaviour, are inconsistent with your claim of having been in fear of him. In fact, your appearance and demeanour was that of someone who was put out and potentially embarrassed at having lost the physical confrontation, and was still unwilling to take a backward step.
Thirdly, the ten minutes or so of footage filmed by the mobile phone of Mr Hayman before you stabbed him shows that he had ample opportunity to take the folding knife from his waist if he had any intention of doing so. It is perfectly apparent that he felt, with some justification, that he could take care of you physically without resort to a weapon, and that he had no intention whatsoever of using that knife. From your perspective, you, also, were aware of the physical mismatch between you and Mr Hayman, and would have had no reason at all to suppose he might resort to use of the knife he had.
In the five-and-a-half minutes from the time Mr Hayman released you at the end of the physical confrontation to the time you armed yourself with the boning knife and moved towards him, you had ample opportunity to leave the scene if you wanted to. You had no reason to fear any attack from Mr Hayman in circumstances where he had shown you his concern was to protect Ms McLean from attack. At no time during this period did Mr Hayman physically attack you, or move towards you, or make any move to arm himself with the knife at his waist.
Fourthly, when you armed yourself with the boning knife, you did so surreptitiously and rapidly, giving Mr Hayman little time to respond or retreat.
Fifthly, you advanced quickly upon him, causing him to retreat. You stabbed him to the abdomen with that dangerous weapon in spite of the fact that he was retreating from you and repeatedly asking you to desist.
Sixthly, you continued to advance upon him, and to stab him three more times, even after you had inflicted the very substantial stab wound to his abdomen which had punctured his lung and damaged other vital internal structures.
Seventhly, you followed Mr Hayman as he retreated outside, intent, I am satisfied beyond reasonable doubt, on further attacking him. There was no other sensible reason why you would have gone outside at that time. That you did not carry out any further attack upon Mr Hayman outside, and that you apparently helped him into Ms McLean’s vehicle, does not change the fact that your following him outside was inconsistent with the claim you now make that your attack upon him was motivated by a belief in the need for self-defence. You only helped Mr Hayman in circumstances where he was clearly and obviously seriously incapacitated at that time, and many people were present who could observe your conduct towards him.
Eighthly, your statement to Mr Lammon, ‘I have to get rid of this or I’m going back to gaol’, and your conduct in then secreting the boning knife in the wall cavity of the house, are items of incriminating conduct inconsistent with a belief that you had acted in self-defence in stabbing Mr Hayman.
Ninthly, in a consultation you had with Carla Lechner preceding her report to the Court dated 9 September 2019, you falsely claimed that you stabbed Mr Hayman because he stabbed you first and you were scared of him. You asserted that he had hurt you and that you wondered why he did not get locked up himself. When asked what injuries you had sustained in the stabbing attack upon you, you could not outline the injuries, and pointed out that the police had not photographed them.
When asked by me what I should make of the lie told by you to Ms Lechner about having been stabbed by Mr Hayman, in circumstances where it was central to the account you gave to her of having carried out your crime because you were fearful of your victim, Mr Anderson urged me not to attach any significance to it in view of your intellectual disability. It did not follow, he submitted, from your telling of that lie, that all you had said about being in fear should be ‘out the window’. That may be so, but it seems to me in the circumstances that it was a very telling lie for you to have told, and was something inconsistent with you having had any real reason to fear Mr Hayman at the time you stabbed him.
In conclusion on this matter, I do not accept that you stabbed Mr Hayman because you feared that he was about to attack you. Nor do I accept that fear had any significant input into your conduct. Specifically, I do not accept that there was any aspect of self-defence behind your conduct.
Before I could have acted on the basis asserted by your counsel that you acted out of fear, and believed it was necessary to attack Mr Hayman to prevent an attack upon you, those being matters in mitigation, the burden of establishing them was upon you. For the reasons I have outlined above, you failed to discharge that burden.
Indeed, I would go further. I am satisfied beyond reasonable doubt that in stabbing Mr Hayman, you acted principally out of anger and annoyance. Frustration and embarrassment may also have had a part to play.
Your mental condition at the time of the crime and now
I have already briefly touched upon two expert reports which were tendered on the plea hearing. I will deal with these now, and then later return to the topic of the nature and gravity of your offence.
Dr Jennifer McDowall provided a neuropsychological report[9] in which she set out the results of testing upon you which, in combination with all the information at her disposal, led her to arrive at the diagnosis I mentioned earlier that you suffer from a mild intellectual disability. As I earlier pointed out, the use of that adjective to describe your intellectual disability may be misleading. The fact is, Dr McDowall described the impact of your disability on your level of functioning and behaviour in terms that make it clear that you are very limited in many respects. She indicated that testing of you showed your intellectual functioning generally fell within the Extremely Low range. You demonstrated profound difficulty with attention, information processing speed, new learning and memory, and executive functioning. Your current intellectual difficulty was present during the developmental period. The reduction in your IQ between the time of a previous neuropsychological assessment in 2011 and now[10] was likely explainable by developmental factors, a possible intervening closed head injury, and ongoing drug abuse.
[9]Exhibit 3.
[10]From 67 to 51.
Ms McDowall asserted that your intellectual disability would have negatively impacted your ability to process rapidly evolving and unpredictable situations, for example, if you perceived the danger of aggressive behaviour directed at you. She said that you have a limited capacity to process complex information. You are easily overwhelmed and overloaded when presented with too much information. You are slow to process information and have difficulties monitoring and choosing your behaviour. You have difficulties reasoning through complex situations and have reduced problem-solving speed. These difficulties would likely be exacerbated in a rapidly evolving and unpredictable situation. You would have far more difficulty than the average person coping in stressful, ambiguous or dangerous situations. You would have an impaired capacity to negotiate physical threats through non-violent behaviour. Your ability to process verbal information is impaired. This would be especially so in a rapidly evolving and highly unpredictable situation, such as where you were being threatened.
Carla Lechner, a Clinical Psychologist, provided a report which was tendered on the plea hearing.[11] Ms Lechner had been provided with materials including the earlier report of Dr McDowall.
[11]Exhibit 4.
Having set out your personal background, Ms Lechner noted that in her assessment of you, she noted no evidence of psychotic processes, but that you evidenced symptoms of depression, which she later confirmed with psychometric testing. She diagnosed you with Major Depressive Disorder and Opioid Use Disorder as well as your mild intellectual disability. You impressed her as cognitively, socially and emotionally immature with a limited capacity to think reflectively or consequentially.
It is apparent that Ms Lechner accepted at face value your claim of having been stabbed by Mr Hayman, having felt under threat as a result, and having acted accordingly. In that context, she opined that:
No doubt his high level of emotional distress would have adversely affected his judgment and problem-solving skills in what appears to have been a fairly emotionally charged and volatile situation.[12]
[12]Exhibit 4, page 6.
Ms Lechner went on to say:
Mr Donnelly is finding his time in custody difficult on account of his cognitive, social and emotional immaturity. He is particularly vulnerable to being stood over, intimidated or manipulated on account of these reasons.[13]
[13]Ibid page 6.
Whilst acknowledging that sentence was a matter for the Court, Ms Lechner further stated:
From a purely psychological perspective, Mr Donnelly would benefit from a comprehensive case plan prior to his release from custody that addresses the issues outlined above. He has complex needs that must be addressed in order to reduce the risk of relapse to both drug use and offending behaviour.[14]
[14]Ibid.
Relying on the matters set out in the two expert reports, Mr Anderson submitted that the first five limbs set out in R v Verdins[15] are engaged in your case. This would be so, he submitted, whether your crime was an act of anger or an act of excessive self-defence.
[15](2007) 16 VR 269 (‘Verdins’).
Specifically, Mr Anderson submitted that your moral culpability is reduced on account of your intellectual disability,[16] that both general and specific deterrence should be ‘heavily moderated’ as sentencing considerations, although still not eliminated, and that I should take into account the fact that your intellectual disability will mean that a sentence of imprisonment will weigh more heavily on you than it would on a person of normal intelligence.
[16]Muldrockv The Queen (2011) 244 CLR 120 [54].
Ms Churchill, for the Crown, accepted that your moral culpability for your crime is reduced, and that there is the need to moderate general and specific deterrence. She challenged the contention that the fifth limb in Verdins is engaged, there being a lack of evidence in support of the contention that your time in custody will be harder on account of your mental impairment.
I sentence you on the basis that, as asserted by Mr Anderson, and accepted by the Crown, your moral culpability is reduced because of your intellectual disability. That is not to say that your moral culpability is low. Significant though your mental impairment is, you still retained the capacity to reason and to understand that attacking Mr Hayman as you did was seriously wrong.
I note that whilst your mental condition leads to a reduction in your moral culpability for the crime you committed, it would seem in this case to have another effect as well, as described by the High Court in Veen v The Queen [No 2] (‘Veen’)[17] as follows:
[A] mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.[18]
[17](1988) 164 CLR 465 (‘Veen’).
[18]Veen (n 15) 476-7. See also Wahame v The Queen [2018] VSCA 4 [77]-[89].
I consider that your disability should lead to both general and specific deterrence being sensibly moderated. I do not accept that the moderation should be as pronounced as was sought by Mr Anderson. Again, whilst your intellectual disability is significant, it does not render you an inappropriate vehicle for a sentence which has a component of general deterrence contained within it. As for specific deterrence, I consider that, limited though you are intellectually, you are capable of understanding the sentence I will pass on you and being personally deterred from future offending.
As for the fifth limb of Verdins, I make an allowance for that as well. Your service of the sentence I pass on you will be made more onerous for you because of your intellectual disability relative to a person of normal intelligence.
In summary, then, I will reduce the length of the head sentence and non-parole period I will pass on you because of the considerations set out in Verdins and the other relevant authorities. I do note, however, that the countervailing effects of your condition as considered in Veen would have a moderating effect on such reduction.
Nature and gravity of offence
One of the matters to which I am required by s 5(2)(c) and (d) of the Sentencing Act 1991 (‘the Act’) to have regard is the nature and gravity of the offence.
Recklessly causing serious injury is a serious offence which attracts a maximum penalty of imprisonment for 15 years. At the same time as asserting that your crime was motivated by fear rather than aggression, a contention which I have rejected, Mr Anderson accepted that yours was a serious example of the offence. There is no doubt that that is so.
In circumstances in which you knew that Mr Hayman’s purpose in being present at 9 Phillips Street, Shepparton was to provide physical protection to Ms McLean, and in which you knew that he was not expecting an attack from you, you launched a surprise assault upon him with a dangerous weapon. You did so, principally, for reasons of anger and aggression. I note also that your observed behaviour in the lead-up to your crime would suggest you were affected by some substance, whether alcohol or another drug. You advanced upon a retreating and unarmed man who repeatedly called on you to desist, and then you stabbed him a vicious blow to the abdomen. Your intellectual limitations did not obscure your understanding of the fact that to stab a person to that area would run the risk of causing serious injury or death. Of course, your plea of guilty to the charge indicates that you acknowledge that you realised serious injury would probably result from your action, but went ahead regardless.
Having stabbed Mr Hayman, and it having been pointed out to you by your victim that you had done so, you did not desist, and stabbed him a further three times, one of them to the face. This was indicative of your high level of anger towards him.
As was submitted by Ms Churchill, it cannot be said that your stabbing of Mr Hayman was a completely spontaneous one. The earlier physical altercation between the two of you was some minutes in the past by the time you surreptitiously armed yourself and launched your attack. Every indication is that you had some minutes to ponder what you would do. Then you acted with great violence and to almost deadly effect.
Your attack upon Mr Hayman caused substantial injuries to him which, in the absence of prompt and appropriate medical care, extending over a substantial period of time, would have inevitably led to his death. Every indication is that he has not yet recovered from these injuries, and indeed, that he will never fully recover.
In my view, the objective seriousness of your crime is high.
As was recently stated by the Court of Appeal in DPP v McKay:[19]
Recklessly causing serious injury using a knife is an inherently grave offence. In combination with alcohol the consequences can be life threatening, as was the case here.
[19][2018] VSCA 292 (Beach and Hargrave JJA and Almond AJA).
In connection with the passage above, the Court made reference to the decision of the Court in Ejupi v The Queen[20] in which Priest JA, with whom Coghlan JA agreed, stated:
As against those mitigating aspects, this was a serious example of the offence of recklessly causing serious injury. This Court has often remarked on the dangerousness of knives, given the obvious risk in their use of damage to a victim’s internal organs and blood supply and thus to life. Those who would venture forth with a knife anticipating its use to inflict injury, and those who would use knives foreseeably to inflict serious injury, need to be deterred from so doing.
[20][2014] VSCA 2.
In my view, your attack upon Mr Hayman was a serious one, and can be viewed as being comfortably within the mid-range of seriousness of offences of recklessly causing serious injury, if not towards the more serious end of the mid-range.
Your prior criminal history
You have a concerning list of prior findings of guilt going back to 2011 when you first appeared in the Children’s Court at the age of 17. Whilst your early appearances in the Children’s Court largely concerned matters of dishonesty, drugs and driving, by the time of your first adult appearance, you had graduated to committing crimes of violence. On no fewer than five separate occasions, you have appeared in courts charged with numerous violent offences, including assaulting police and other emergency service workers, assault by kicking, recklessly causing injury, and, on three separate occasions, aggravated assault of a female. Your other convictions include weapons offences, breaching bail, and numerous charges of contravening family violence intervention orders.
On 22 January 2018, that is, one month before your current offending, you were placed on a community correction order (‘CCO’) for 18 months on an array of charges including two charges of aggravated assault of a female, assault by kicking, reckless conduct endangering a person, carrying a controlled weapon without an excuse and four charges of contravening a family violence intervention order. Your stabbing of Mr Hayman put you in breach of that CCO.
It would be correct to say that you have received a number of quite lenient sentences over the years, often involving community-based dispositions with special conditions reflecting the courts’ regard for your intellectual disability. In that regard, I note that your counsel acknowledged that in your case, courts have done a lot to give real effect to the idea that prison should be seen as a last resort, especially for someone with an intellectual disability.
Your criminal history is relevant to sentence in the ways discussed by the High Court in Veen.[21] It illustrates the fact that your offending here is far from being an uncharacteristic aberration in your case, albeit that of course, your present offending is of a different order of seriousness than that contained in the criminal record. You have shown somewhat of an inclination towards violence and self-evidently, the many moderate sentences imposed upon you in the past have failed to deter you from future offending.[22] You are not, of course, to be punished again for your past crimes, but your history does have an impact upon the sentence which I must impose in this case as it has a bearing on the significance I must attach to a number of the purposes for sentence.
[21]Veen (n 15) 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ).
[22]O’Brien & Gloster [1997] 2 VR 714, 718 (Charles JA).
Plea of guilty and remorse
You indicated an intention to plead guilty to this charge shortly before your trial on the original charge of attempted murder was to proceed. You entered your plea of guilty on 31 July 2019. You had previously offered to plead guilty to recklessly causing serious injury, but on a conditional basis that you had acted in self-defence in respect of the first stab wound, but not thereafter. That offer was rejected, and in due course, it was ascertained that the first stab wound was the critical one in this case.
Mr Anderson pointed out that your plea of guilty was able to be negotiated rapidly after the provision of the report of Dr McDowall as to the impact of your intellectual disability on the offending. He submitted that until then, a resolution on the current basis was not practically available. He further submitted that your plea of guilty should be treated as having come at an appropriate stage, and as being demonstrative of remorse. On that score, he submitted that your plea of guilty was ‘indicative of a level of remorse’. He submitted:
I don’t ask your Honour to say that this is a case of perfect expression of remorse. But some remorse can be inferred from the plea and then there’s the utilitarian benefit.[23]
[23]Transcript 72.
Ms Churchill submitted that your plea of guilty was a late one after the holding of a contested committal at which the complainant and others were cross examined. She submitted that your plea of guilty was evidence of a willingness to facilitate the course of justice and the other utilitarian benefits attached to it. She accepted that there was, by virtue of the plea of guilty, some evidence of remorse.
Your plea of guilty, in my view, in the circumstances and even at the quite late time at which it was forthcoming, is an important matter going in mitigation. It is of utilitarian value and is reflective of some remorse on your part. In addition, your plea of guilty is evidence of the other so-called objective matters which may flow from a plea of guilty.[24]
[24]R v Phillips (2012) VR 594 [68]-[70].
Insofar as Mr Anderson submitted that your plea of guilty came in circumstances where you had a viable self-defence argument which could have been run on your behalf, and was the more significant because of that fact, I do not accept that contention. As I have already noted, your stabbing of Mr Hayman was a long way removed from an action taken in self-defence.
Victim impact statement
Bradley Hayman provided a victim impact statement after the hearing of the plea. This happened in circumstances where the prosecution had been unaware of his whereabouts in the lead-up to the plea, and it was ascertained late in the piece that he was in custody. He attended the plea hearing on video-link and signed his victim impact statement on 31 October 2019.
In the victim impact statement, Mr Hayman described the many negative impacts he claims the offending has had upon him, including:
a) A loss of confidence;
b) Ongoing anxiety;
c) Interference with his sleep, including nightmares and fear of the dark;
d) Regular suicidal thoughts;
e) Tearfulness
f) A deleterious impact on his relationship with Ms Quirk;
g) The fact of Ms Quirk having a miscarriage while Mr Hayman was hospitalised, which he links to the attack upon him;
h) Guilt over the loss of the baby;
i) Scaring to the torso and chin, causing distress; and
j) Feelings of self-loathing.
There are a number of other effects of a personal nature which Mr Hayman claimed to have suffered as a result of this crime.
Mr Anderson subsequently filed written submissions in respect of the content of the victim impact statement.[25] In the submissions, Mr Anderson indicated that a portion of the statement had been agreed by the parties to be inadmissible. These were the first 11 lines in the final paragraph of the statement. Those lines set out an account by Mr Hayman as to part of the attack upon him. It is clear why this material has been agreed to be inadmissible as it goes beyond the proper content of a victim impact statement.[26]
[25]Exhibit 7.
[26]Sentencing Act 1991 s 8L(1).
In addition, Mr Anderson took issue with a number of aspects of the statement. First, in respect of a number of the propositions set out in the statement regarding the effect the offence has had on the wellbeing of Mr Hayman, Mr Anderson, whilst accepting that an injury of this magnitude would likely have a significant and ongoing effect on the victim’s sense of wellbeing, and that the crime may well have contributed to the position Mr Hayman finds himself in, disputed that it could be safely concluded that the offending was the sole or dominant cause of that situation.
Secondly, in respect of certain other claims in the statement, Mr Anderson submitted that such assertions would ordinarily require the support of expert opinion which has not been forthcoming in this case. The claims go beyond anything particularised in the opening and, so it was submitted, there was not a sufficient evidentiary basis upon which I could be satisfied to the requisite standard about these matters.
In the circumstances, I considered it appropriate to hear counsel in further submissions in respect of the victim impact statement. This took place on the day of the sentence before sentence was finalised. On that occasion, Mr D’Arcy appeared for the Crown.
Mr D’Arcy made it clear the Crown did not intend to provide any further material of an expert nature in respect of the effects of this crime upon its victim. He also did not seek to call Mr Hayman, who, I might say, was available on video-link, and could have been called to give evidence should counsel on either side had desired this. I am not to be taken as implying that I would have considered it appropriate or necessary for Mr Hayman to be called during the further plea.
Mr D’Arcy referred me to section 8L(4) of the Act. He submitted that the contents of the victim impact statement were Mr Hayman’s perception of the effects of the crime upon him. In the circumstances it was a matter for me to determine the extent to which the crime had impacted upon him.
Mr Anderson disputed that I would be in a position to determine a number of aspects of the claims in the victim impact statement to the necessary standard, in view of the fact that they would amount to aggravating circumstances. Mr Anderson did not dispute that I would be entitled to conclude, on the basis of the victim impact statement and the other evidence, that Mr Hayman has been seriously affected by this attack upon him, and that the effects are ongoing.
In my view, in the circumstances of this case, I do not need to reach any concluded view about the aspects of the content of the victim impact statement which remained in contention in order to make proper use of the statement in accordance with the statute and the authorities.
Even in the absence of a victim impact statement, the serious nature of the injuries sustained by Mr Hayman, the protracted medical and surgical care he received, and the likely after-effects and future risks to which he will be prone, as set out in the report of Dr Schreiber, make it plain that your crime had a devastating effect on the life of Mr Hayman.
Non-contentious parts of the victim impact statement point to some of the ongoing effects of the attack upon Mr Hayman. The ongoing anxiety and trauma the attack has caused him, manifested in disturbed sleep, fear, a loss of confidence, and interference with his relationship with Ms Quirk, are no more than would be expected, and I am perfectly satisfied that those effects have occurred, that they continue to this time, and that they are related to your offence. The permanent scarring he sustained, and the distress that causes him, is also unsurprising. As for the fact that his partner had a miscarriage during the time he was hospitalised, the fact that he links that in his mind to your attack upon him, and the fact that he feels guilt over the loss of the baby as a result, the relevance of those matters is not dependent on expert evidence drawing a link between the miscarriage and the offence, as the submissions of Mr Anderson implied. Whatever the medical cause of the miscarriage, it occurred while Mr Hayman was in hospital being treated for the shocking physical injuries you inflicted upon him. It is understandable that he links the two events in his mind and that he feels to blame. That is part of the material going to the impact of your crime upon its victim.
I am satisfied that your crime has had a devastating effect on the life of Mr Hayman in a number of respects, and that many of its effects are ongoing, and may persist for a long time. As for the scarring resulting from your attack upon him, it will be a constant and permanent reminder of the event. I take into account, in sentencing you, the powerful, negative and ongoing effects of your crime upon Mr Hayman.
Disadvantaged upbringing
Mr Anderson emphasised the most unfortunate and deprived background from which you have come, and urged me, in accordance with the principles in R v Terrick,[27] to take those matters into account in mitigation of sentence. I do so.
[27](2009) 197 A Crim R 474.
Time in custody and related matters
I was informed that you have only been imprisoned once in the past, for a period of 12 days. You are currently housed in Marlborough Unit at Port Phillip Prison, a unit for intellectually disabled prisoners. I am told that you have used your time on remand productively. You have completed a number of courses and certificates, and in particular have taken part in available drug programs. You are currently in receipt of a reducing dose of methadone.
You have had no visitors, and were unable to attend the funeral of Kelly McLean, who died since you have been in custody.[28]
[28]No information was provided to the Court as to the cause of death of Ms McLean.
For the last 15 months, you have had work in the cabinet making area, which you have enjoyed. You hope to get work in a similar area on your release.
In spite of your apparent engagement in prison life as set out above, you apparently are scared of other prisoners, and have a history of being stood over. I accept that life in prison will not be easy for you.
I also take into account in sentencing you the fact that for a substantial period of time, you had the more serious charges of attempted murder and intentionally causing serious injury hanging over your head, which would have caused additional pressure upon you.
Prospects of rehabilitation and the need for specific deterrence
You have principally lived with Ms McLean since you were 15 years old. That relationship, which your counsel has described as a toxic one, is at an end. That is a positive, from the view of rehabilitation, so it was submitted on your behalf.
On the matter of your prospects of rehabilitation, however, your counsel made the following concession:
So although, your Honour, I don’t expect your Honour to find that he’s someone who has excellent prospects of rehabilitation given his prior matters, the chances of him reoffending in the type of way that is before your Honour or in my submission, would seem relatively unlikely. So the need to specifically deter him from offending perhaps of this character as opposed maybe more generally (sic) doesn’t need to be given such great weight.
Ms Churchill noted that you are still a ‘youngish’ person. She submitted that your prospects of rehabilitation are inextricably linked with your ability to remain drug-free and engage in meaningful activities, particularly under the NDIS. Such matters, if implemented, would go some way towards increasing your prospects of rehabilitation.
In the circumstances of your history of prior offending, your long-term illicit drug use, your lack of supports in the community, the absence of any real employment history, and your intellectual disability, it is difficult to see your prospects of rehabilitation as being very positive. That is not to say that they are a forlorn hope and should not be fostered if possible.
As for the need for specific deterrence, I believe it is significant, in light of the nature of your crime of violence here, in the context of your repeated violent behaviour in the past. As I mentioned earlier, there is nothing about your intellectual disability that would make specific deterrence less important than it would otherwise be in your case.
Length of non-parole period
Your counsel accepted that a term of imprisonment with a non-parole period was the only appropriate disposition in your case, but submitted that it would be a case in which it would be appropriate that the period of supervision under parole be longer than might often be the case, relative to the head sentence. That was a proposition with which Ms Churchill did not take issue.
In order to endeavour to increase your prospects of rehabilitation, I will accede to the submission of Mr Anderson in respect of the duration of the non-parole period. It will represent a proportion of the head sentence much lower than would usually be the case, although I note that the Court of Appeal have frequently pointed out that there is no usual ratio of non-parole period to head sentence.
Current sentencing practices
In arriving at the appropriate sentence I have taken account of current sentencing practices, one of the matters referred to in s 5(2) of the Act. In seeking to understand these, I have considered, amongst other things, the Sentencing Snapshot[29] from the Sentencing Advisory Council, the helpful material contained within the Judicial College of Victoria’s Victorian Sentencing Manual, including the summaries in respect of sentences for recklessly causing serious injury considered by the Court of Appeal, and a number of broadly comparable cases in which sentences for that charge have been passed or considered, some of which were drawn to my attention by Ms Churchill.
[29]June 2018, No. 214.
Important sentencing considerations
As I have made clear, yours is a serious instance of the crime of recklessly causing serious injury. With no justification, and out of anger, you viciously stabbed a man, causing serious injury to him and bringing him perilously close to death. Your intellectual disability did not prevent you from clearly understanding the serious and dangerous nature of your act.
I believe that all of the purposes for which a sentence may be imposed, as set out in section 5(1) of the Act, have application in your case. Some of them will be sensibly moderated on account of your intellectual disability.
You must be punished appropriately for your serious crime. The sentence must be sufficient to deter those who might be minded to carry out such crimes of violence, especially with the use of dangerous weapons such as knives. You yourself must be dissuaded from future offending of this nature, a very real need as I see it due to your commission of a number of crimes of violence in recent years. In addition the sentence of the Court must make it perfectly clear that the Court deplores violent crimes of this sort.
Protection of the community is one of the ends sought to be advanced by the sentence I will pass. The matters which go towards engaging the principles in Verdins may be seen as increasing the danger you pose to the community and therefore increasing the need for regard to be had to protection of the community.
As for rehabilitation, it remains of significance. Your prospects in that regard are not good, especially because of your intellectual disability and the effect that that has upon your level of maturity, your judgment, and your ability to process situations, select appropriate behaviour and think consequentially. Having said that, as indicated earlier, I intend, by the sentence I pass, to pay due regard to the desirability of fostering your future rehabilitation as much as possible.
Sentence
Brayden Peter Donnelly, for recklessly causing serious injury to Bradley Hayman, you are sentenced to be imprisoned for a period of five years and nine months.
I fix a period of three years and six months before which you will not be eligible to be released on parole.
I declare a period of 640 days up to and including yesterday, 27 November 2019, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for seven years and six months with a non-parole period of five years.
I make the disposal order sought by the prosecution in respect of items contained in the Schedule to the order.
2
0