R v Douglas
[2023] VSC 663
•16 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0336
| Between: | |
| THE KING | |
| -and- | |
| RAYMOND DOUGLAS | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 November 2023 |
DATE OF SENTENCE: | 16 November 2023 |
CASE MAY BE CITED AS: | R v Douglas |
MEDIUM NEUTRAL CITATION: | [2023] VSC 663 |
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CRIMINAL LAW — Sentence — Intentionally causing serious injury — Accused, aged 61, stabbed complainant multiple times with a knife to chest, back and face — Some injuries life‑threatening — Blood transfusion required — No victim impact statement, but adverse effect apparent from complainant’s police statement and nature of injuries — Offence unplanned — DPP concedes accused may have believed need for self‑defence, but not a reasonable response in circumstances as he perceived them — Accused’s moral culpability reduced because judgment impaired by cognitive limitations, paranoia and methamphetamine use — Accused’s awareness of impact of drug use offsets mitigation attributable to that factor — Plea of guilty — Remorse — Criminal history mostly irrelevant, limited and dated — Hardship of imprisonment given afflictions — Reasonable prospects of rehabilitation — Initially charged with attempted murder but, with concurrence of DPP, sentence indication given on intentionally causing serious injury — Plea of guilty followed sentence indication of five years’ imprisonment with non‑parole period of three years — Neuropsychological report obtained after sentence indication showed intellectual impairment and hardship of prison — Sentenced to five years’ imprisonment with non‑parole period of two years and nine months — But for plea of guilty, sentence of seven‑and‑a‑half years’ imprisonment with non‑parole period of five years — Crimes Act 1958 (Vic), ss 16 & 322K; Criminal Procedure Act 2009 (Vic), ss 207 & 209; Sentencing Act 1991 (Vic), ss 5 & 6AAA.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Porceddu | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond | James Dowsley & Associates |
HIS HONOUR:
Overview
During the evening of 24 June 2022, Raymond Douglas, aged 61, assaulted Ricky Wells‑Thompson, aged 35, by stabbing him multiple times with a knife to the chest, back and face. While some of the resulting wounds were life‑threatening and required hospitalisation, fortunately, Mr Wells‑Thompson was able to receive the necessary medical treatment that ensured his survival.
Initially, Mr Douglas was charged with attempted murder and lesser alternative offences. Following a sentence indication hearing in August this year on the alternative charge of intentionally causing serious injury, I indicated I would impose a maximum sentence of five years’ imprisonment with a non‑parole period of three years if he pleaded guilty to that charge. After a short period of consideration, Mr Douglas indicated that he would plead guilty to intentionally causing serious injury, which he did a few days later when a fresh indictment was filed.
After adjourning the matter to 2 November to allow a neuropsychological report to be obtained, on that day, I heard an opening by Mr Porceddu, who appeared for the Director of Public Prosecutions, and a plea in mitigation by Mr Desmond, who appeared for Mr Douglas.
It is now my task to sentence Mr Douglas, recognising that, as a matter of law, I am bound not to impose a more severe sentence than the maximum sentence previously indicated but, if considered appropriate, I may impose a lesser sentence.[1] I shall announce the sentence at which I have arrived at the conclusion of these reasons.
[1]See Criminal Procedure Act 2009 (Vic), ss 207 & 209.
Summary of offending and surrounding events
I shall commence with a more detailed summary of the offending and the surrounding events.
From early in June 2022, Mr Wells‑Thompson was living at the home of his friend Andre Des-Barres at 27 Sassafras Drive in Frankston.
Around lunchtime on 24 June 2022, Terri Ersoy, who lived in the area, went to Mr Des‑Barres’s home.[2] Mr Wells‑Thompson was there at the time, as was Mr Douglas, who lived in a share‑house in the same street.
[2]Ms Ersoy attended with her housemate, who was described only as “Kimberley” in the materials. Since she left before the offence occurred, and did not provide a statement, there is no need to say anything further about her.
During the day, Mr Des‑Barres was repairing a trailer. At one stage, he, along with Mr Douglas and Mr Wells‑Thompson, went to Bunnings in Frankston to buy some screws and locks for the trailer.
At another stage in the afternoon, Mr Des‑Barres and Ms Ersoy rode pushbikes to a pharmacy to collect some medication. Upon their return, they entered the back yard via a side gate. At this point, Mr Douglas said to Ms Ersoy that Mr Wells‑Thompson had been ignoring him.
In the evening, Mr Des‑Barres had a fire going in the back yard for a barbeque. At the barbeque, Mr Douglas told Ms Ersoy that he was “a little bit nuts” and that he had been in a coma for three months some years previously. He said he had taken datura, which “fucked him up”. He went on to say that Mr Wells‑Thompson was being elusive and conspiring with “Kat” (who was Mr Wells‑Thompson’s ex‑girlfriend). He kept saying to Ms Ersoy that he was going to kill them all, which concerned her. Ms Ersoy noticed that Mr Wells‑Thompson appeared to be keeping to himself.
Later in the evening, Mr Wells‑Thompson went inside the house, while Mr Des‑Barres and Ms Ersoy began packing up in the back yard. At this stage, Mr Douglas remained outside with them. At some point, Ms Ersoy went to the laundry. She saw Mr Wells‑Thompson heading to the couch area from the kitchen with a bowl of cereal. (Crime scene investigators later found a bowl on a couch. The prosecution case is that this must be where the assault commenced.)
Ms Ersoy returned to the back yard where she continued to clean up with Mr Des‑Barres. While there, she heard screams which sounded like a female child moaning, but she could not say whether they were coming from a male or a female. She said that the screaming was “heart‑wrenching and disturbing, like nothing [she] had ever heard before”. That is when she noticed that Mr Douglas was no longer with them.
Ms Ersoy then said to Mr Des‑Barres that she thought Mr Douglas was hurting Mr Wells‑Thompson. Mr Des‑Barres ran inside the house and through the kitchen, with Ms Ersoy following close behind. He then heard a scream. As he reached the lounge room, he saw Mr Douglas standing over Mr Wells‑Thompson and holding a knife in his right hand. Mr Wells‑Thompson was in extreme pain and was struggling to get up from the recliner chair. When he tried to stand, he kept staggering.
Ms Ersoy heard Mr Des‑Barres say to Mr Douglas, “What are you doing? Get the fuck out,” or words to that effect. At that point, Ms Ersoy saw the knife, which was being held by Mr Douglas, come out of Mr Wells‑Thompson at about mid‑height. She could also see Mr Wells‑Thompson crouching over and Mr Des‑Barres trying to help him to his feet.
Mr Wells‑Thompson then ran out the front door. Mr Ersoy rang triple‑zero after being asked to do so by Mr Des‑Barres, who chased after Mr Wells‑Thompson.
Mr Douglas went to the kitchen sink and washed the blade of the knife. Then, with sponges, he tried to clean up a pool of blood that had stained the carpet. Next, he picked up two beer bottles and ran out the back of the house.
In the meantime, Mr Des‑Barres ran up and down the street looking for Mr Wells‑Thompson, but he lost sight of him.
At about 12:50 a.m., police arrived. Mr Wells‑Thompson was found crouched next to a car in a driveway in the same street. He had lost a significant amount of blood.
He was taken to the Alfred Hospital, where he underwent emergency surgery for multiple internal wounds and was placed in an induced coma for two weeks.
On 1 July 2022, Mr Douglas was arrested. When interviewed, he exercised his right to silence. He was charged with attempted murder and alternative offences, and has remained in custody ever since.
Following a review of the medical records, but without personally examining Mr Wells‑Thompson, forensic physician Dr Jason Schreiber provided a report which included his opinions with respect to the injuries sustained as a result of the attack. In summary, Mr Wells‑Thompson sustained six stab wounds to the chest, back and face. The injuries caused life‑threatening blood loss, which required surgery with blood vessel embolization, and massive blood transfusions. Without these treatments, Mr Wells‑Thompson would have bled to death. The injuries also caused significant trauma to the breathing apparatus, with the collapse of both lungs and injury to the diaphragm. There were also life‑threatening complications by blood poisoning, a high‑grade liver injury (which required surgery), and other complications, including acute confusion and impaired heart function. As a result of the trauma, there is a future risk of spontaneous lung collapse, breathing problems, on‑going pain, abdominal problems, and psychological sequelae.
In August 2022, Mr Wells‑Thompson spoke to police about this incident. He had a very limited recollection of events, but remembered going to Bunnings to get some parts for Mr Des‑Barres’s trailer. His next memory was waking up at the Alfred Hospital and being told that he had been brought out of a coma.
No victim impact statement
While no victim impact statements were provided, Mr Porceddu pointed to a passage in Mr Wells‑Thompson’s statement of 3 August 2022 to police, in which he said this:
I am feeling pretty sore from my wounds at the moment. I am also confused and anxious because I don’t know how or why I was stabbed. I am having trauma counselling.
Mr Desmond took no objection to reliance on this evidence as if it were, in effect, a victim impact statement.
Given the gravity of the injuries Mr Wells‑Thompson suffered, combined with his lack of memory of the event, these thoughts strike me as a rather understated way of describing the inevitable impact of the offence upon him.
Nature and gravity of offence
Next, I turn to consider the nature and gravity of intentionally causing serious injury generally and this offence in particular, including Mr Douglas’s level of culpability.
The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.[3] A custodial order must be imposed for the offence unless certain circumstances exist.[4] There was no dispute that a prison term with a non‑parole period was the sentence required in this case.
[3]Crimes Act 1958 (Vic), s 16.
[4]Sentencing Act 1991 (Vic), s 5(2H).
Like most criminal offences, the gravity of intentionally causing serious injury can vary markedly from case to case, and from offender to offender.
On what is known, objectively, Mr Douglas’s offence is serious. His plea of guilty involves an acceptance that he stabbed another with a knife multiple times with the intention of causing him serious injury. Mr Wells‑Thompson suffered life‑threatening injuries, which required surgery and a substantial stint in hospital, and have left him with the future risks identified by Dr Schreiber.
On the other hand, Mr Porceddu explained that the Director accepted that some of the injuries may have been sustained recklessly, and not necessarily intentionally. These included a fracture to the rear aspect of the left fourth rib, a complex multi‑fragmented open fracture of the left cheek bone, and some of the stab wounds. Further, the Director could not say whether the liver injury was caused by blunt force trauma or a knife.
In addition, Mr Desmond emphasised that the parties agreed that the circumstances in which the altercation commenced are unclear, and that it cannot be said that Mr Douglas initiated the attack or that there was any planning involved.
Also by agreement between the parties, Mr Porceddu accepted that it cannot be excluded that Mr Douglas may have believed in the need for self‑defence, but emphasised that, in stabbing Mr Wells‑Thompson multiple times, his conduct was not a reasonable response in the circumstances as he perceived them[5] and that it was disproportionate to any threat he may have perceived.
[5]See Crimes Act 1958 (Vic), ss 322K(1) and (2).
Overall, while the offence is serious, its gravity and Mr Douglas’s level of culpability are reduced somewhat by the additional factors I have just mentioned.
Personal history
Sources of information
I turn now to Mr Douglas’s personal history. Some of this information was conveyed by Mr Desmond on the plea, and some is contained in a reference from Mr Douglas’s sister Annmarie Olufsen,[6] in the psychological report of Dr Aaron Cunnigham,[7] and in the neuropsychological report of Jane Lofthouse,[8] which were received in evidence without objection.
[6]Ms Olufsen’s reference is dated 11 August 2023.
[7]Dr Cunnigham’s report is dated 7 August 2023.
[8]Ms Lofthouse’s report is dated 20 October 2023.
Family
Mr Douglas is now aged 63. He was raised in Dandenong against a background of alcohol‑fuelled violence perpetrated by his father. His sister is the younger of the two children in the family.
When Mr Douglas was aged nine, his father was incarcerated, which allowed his mother the chance to end the relationship. From the age of 14, Mr Douglas lived between the separate addresses of his mother and his father.
He told Dr Cunnigham that he lacked a father figure between the ages of nine and 14, and that this caused him to rebel against his mother’s authority.
Both of his parents are now deceased.
Education
Mr Douglas attended primary school at Dandenong North and at Saint Joseph’s in Dandenong. His secondary schooling was at Dandenong Technical College, which he left during Year 9. He told Dr Cunningham that he had learning problems at school and that he left because of boredom.
Employment
After leaving school, Mr Douglas worked as a car detailer for nine months, in an insulation factory for six months, and as an apprentice roof tiler for six months. He left home at 19 to live with a friend. He worked in a plastic factory for nine years, and then cleaning horse stables at Melbourne Racing Club for five years. He lost the latter job when the work was taken over by contractors. He has been unemployed for many years, and receives a disability support pension.
Relationships and children
Mr Douglas had a few romantic relationships lasting several years each. He was in a marriage that produced two daughters, who are now aged 32 and 33. His younger daughter works as a psychologist, while his older daughter manages a hotel. He gave several reasons for his relationship ending, including that his partner was unfaithful and that he had to protect his family from being targeted by malicious individuals.
He has had no contact with his wife since his mother’s funeral ten years ago. He has had some contact with his daughters while he has been in custody.
Accommodation
Following the end of his marriage in 2002, Mr Douglas slept rough under bridges and in parks. He has also stayed in rooming houses and has couch‑surfed at the homes of others. This pattern of housing instability continued until his arrest on the current matter, before which he had been living in a share‑house for about four months. He told Dr Cunnigham he was unsure where he would live when released, and that he has limited community support.
Medical history
Mr Douglas was in a serious motorcycle accident in around 1978, when he was aged about 18. He was in a coma for 15 days and remained in hospital for six weeks, with residual paralysis in his left leg and left arm upon discharge. He also had memory loss and concentration problems. He told Dr Cunnigham that this resulted in explosive anger and uncontrolled outbursts, and that he was sent to a psychiatrist for four months. He has not had ongoing treatment or case management since that time. While his physical symptoms have mostly resolved over the years, he still walks with a left‑sided limp.
Last year, he had a heart attack in gaol, for which he was treated at St Vincent’s Hospital and discharged the following day. He is currently taking Aspirin (to reduce the potential for developing a blood clot), as well as medication for Type 2 diabetes, and another medication to lower cholesterol.
Drug and alcohol use
Mr Douglas started abusing alcohol and cannabis at the age of 15. He began injecting amphetamine at 20, and later transitioned to the use of methylamphetamine. He has continued to abuse amphetamine‑based drugs since then, with a six‑year hiatus earlier in his life. He had recently decreased his drug use to improve his health, but had been abusing methylamphetamine by injection during the period of the current offending. His alcohol consumption had reduced to about half a dozen cans per week.
Criminal history
Mr Douglas’s criminal history is modest, dated, and mostly irrelevant in the present context. He has never been sentenced to imprisonment. In 1977, at the age of 17, he was fined for unlawful assault. This is his only prior offence of violence. Between 1983 and 2013, he received fines, probation and a community correction order for various offences, including fraudulently altering a registration plate, driving while disqualified, thefts, handling stolen goods, possessing a firearm without a licence, breaching bail, and shoplifting.
Psychometric testing
Dr Cunnigham administered the HCR‑20, which is a risk assessment tool commonly used by psychologists. In his opinion, Mr Douglas presents as a moderate risk of future violent offending, and that this risk would increase to high in the presence of alcohol and drug abuse.
Mental state assessment
Mr Douglas told Dr Cunnigham that many people were threatening his life because he was previously a Crown witness. He believes that these people have been threatening his life for over 20 years, and that “a different crew” of people had taken over the harassment in recent times. He said he is aware of these people on the streets or walking past his home.
Dr Cunnigham spoke to Mr Douglas’s sister, who said that she has always believed there was something wrong with her brother. She said that he has a history of paranoid delusions and beliefs, and that he has previously dressed in disguises to hide his identity. She believes that alcohol and drugs affect him “big time”, and that he has always been self‑destructive. She confirmed that he was in a coma following his motorcycle accident and was hospitalised for six weeks. She believes that he suffered from brain damage. She said that he was also beaten after being released from hospital. She noticed that he had been slurring his words in gaol and believes he may be suffering from dementia. She added that their father suffered from dementia at a similar age. She believes that the current offending was out of character.
In Dr Cunnigham’s view, Mr Douglas’s presentation indicated significant paranoid delusions consistent with a delusional disorder. He added that there is a concern that these paranoid delusions reflect an underlying cognitive impairment, and that Mr Douglas would benefit from a neuropsychological assessment to determine whether he has an underlying traumatic brain injury or is experiencing dementia.
Neuropsychological assessment
Following up that recommendation, Mr Douglas’s solicitors had him assessed by Ms Lofthouse. She administered a battery of neuropsychological tests, including those designed to measure intelligence, memory, attention, malingering, depression and anxiety. In her view, he demonstrated mild to moderate intellectual impairment across most areas of function. His full‑scale IQ was measured at only 78, which is in the borderline range.
He performed below or significantly below average in many areas, including in abstract reasoning and executive function. He engaged in a literal or concrete problem‑solving style and experienced difficulty in planning. Ms Lofthouse considered it significant that, dating back to childhood and adolescence, his history was marked by behavioural deregulation and early alcohol use, as well as an escalation in his aggressive behaviour after the motorbike accident in 1978. In her view, this type of behaviour is seen in those with executive dysfunction.
She also opined that his somewhat impaired capacity across tests of frontal lobe function indicate that, at times, he may struggle with reasoned and informed problem solving, and will also experience difficulties with impulse control.
Overall, she considered that the pattern of testing results is consistent with him suffering acquired brain injury rather than dementia.
Ms Lofthouse opined that his intellectual impairment would have been a factor that contributed to his offending, as would his paranoid thinking and his chronic alcohol and drug use.
In her view, while Mr Douglas’s intellectual impairment will continue to impact on his function in the future, it is unlikely to deteriorate in prison, and it may in fact improve because of enforced abstinence from drug and alcohol use.
However, she opined that his intellectual impairment and psychological issues may place him at risk of poorly considered decisions, impulsive and irritable behaviour, and, at times, a failure fully to understand situations, which in turn is likely to lead to distress and possibly punitive measures. In this connection, she considered it likely that he would find incarceration more difficult to complete than persons who do not suffer from his intellectual impairment and psychological issues.
Mitigating factors
Plea of guilty
I turn now more directly to the factors in mitigation, commencing with Mr Douglas’s plea of guilty. In my view, this is a very significant mitigating factor, for several reasons.
First, while it came after a committal hearing at which some witnesses were cross‑examined, Mr Douglas was facing a charge of attempted murder at that stage, which has now been withdrawn.
Second, after it was indicated that the Director would support a sentence indication on intentionally causing serious injury, Mr Douglas took up that course immediately and then pleaded guilty at the first practicable opportunity after the indication was given.
Third, Mr Douglas’s plea of guilty was entered in the face of at least three considerations that meant he had an arguable defence or defences. First, as indicated earlier, the Director accepted that Mr Douglas may have had the subjective belief required for self‑defence, but rested liability on his acceptance, by his guilty plea, that his response was unreasonable and disproportionate. It is but a short step from the failure to exclude the subjective belief required for self‑defence to the failure to exclude a conclusion that the conduct was not a reasonable response in the circumstances as an accused perceived them, and therefore to an outright acquittal.[9] Mr Douglas has foregone that chance of acquittal by his plea of guilty. Secondly, having regard to their evidence at the committal, it is fair to say that Mr Des‑Barres and Ms Ersoy had difficulties that might have caused a jury to consider them unsatisfactory witnesses, and thereby might have cast further doubt on the prosecution case. Finally, under this heading, even if self‑defence and the difficulties with the witnesses were overcome by the Director at trial, the circumstances were such that a jury still may well have considered that a lesser offence — such as recklessly causing serious injury or intentionally causing injury — fitted the evidence better than the offence to which Mr Douglas has pleaded guilty. For any or all of these reasons, his plea of guilty is of greater weight than otherwise.
[9]See Crimes Act 1958 (Vic), ss 322K(1) and (2).
Fourthly, his plea acknowledges criminal responsibility for intentionally causing serious injury, which, it is hoped, might give Mr Wells‑Thompson some measure of certainty and finality concerning the cause of his injuries.
Finally, the guilty plea carries with it an even greater utilitarian benefit than at other times. This is because of the plea’s tendency to free up resources in the criminal justice system as a whole to deal with the backlog of cases that has resulted from the pandemic. While that backlog is thought to be easing, the delays in the system in general still appear to be significant.
Remorse
Next, given the fact of his plea of guilty, and the circumstances in which it was entered, I am prepared to infer remorse in Mr Douglas for his crime.
Impairments
Next, I accept Ms Lofthouse’s opinion that Mr Douglas’s intellectual impairment would have been a factor that contributed to his offending, as would his paranoid thinking and his chronic alcohol and drug use.
While Mr Porceddu expressly refrained from putting that any contribution by alcohol or drug use to his offending amounted to an aggravating factor, I understood him to submit that, to the extent that Mr Douglas may have been aware of the adverse effects upon him of using such substances, the mitigation that otherwise might be available was offset, at least in part, by that awareness. I accept that submission.
However, given Ms Lofthouse’s opinion, I am also satisfied that his intellectual impairment and his paranoid thinking, both of which had been present for many years, are likely to have impacted on his impulse control and decision making at the time of the offending. To some extent, then, his moral culpability is reduced, although the impact of these impairments is also a matter to be weighed when considering his risk of offending in a violent manner in the future, to which I shall return later.
Hardship in prison
The next factor in mitigation is that I accept Ms Lofthouse’s opinion that Mr Douglas’s intellectual impairment and psychological issues mean that he is likely to find incarceration more difficult to complete than persons who do not suffer from his afflictions.
In addition, like other prisoners over the last three years or so, Mr Douglas will have endured the hardship resulting from the custodial restrictions occasioned by the pandemic. That said, those restrictions have been eased, to some extent, more recently, and it is to be hoped that they will be completely lifted sooner rather than later.
Prospects of rehabilitation
Finally, there are Mr Douglas’s prospects of rehabilitation to consider in mitigation.
On the one hand, the gravity and nature of the offence, his history of drug and alcohol abuse and his lack of supports in the community suggest poor prospects.
Notwithstanding his earlier report to Dr Cunnigham, Mr Douglas told Ms Lofthouse, who saw him only very recently, that his paranoid thoughts had now abated. She attributed this improvement to his enforced abstinence from alcohol and drugs. Thus, she opined, as did Dr Cunningham, that a return to drug and alcohol abuse would place him at risk of reoffending upon release from prison.
Ms Lofthouse was also of the view that, because of his intellectual deficits, Mr Douglas would struggle to complete rehabilitation programmes, particularly in a group setting, but would be likely to engage in and complete one‑to‑one treatment where his intellectual deficits could be taken into account. The correctional authorities should heed that advice when considering programmes for Mr Douglas, both within prison and if and when he is released on parole.
More positively, at the age of 63, Mr Douglas has only a modest criminal history, including just the one assault committed when he was a teenager that attracted a fine 46 years ago. Further, consistent with this history is the view of his sister, which I accept, that the current offending is out of character. These matters, along with his plea of guilty and remorse, suggest far better prospects of rehabilitation.
Balancing all matters, I am satisfied that Mr Douglas’s prospects of rehabilitation are at least reasonable.
Sentencing purposes
General deterrence, denunciation and just punishment
Turning now to the purposes of sentencing, I consider that general deterrence, denunciation and just punishment are important sentencing purposes in this case. All should understand that to stab another multiple times and cause life‑threatening injuries, with the intent to cause serious injury, is denounced by the courts and, even where there may be an element of excessive self‑defence, as here, usually will result in a substantial term of imprisonment that reflects, among other things, the harm done to the victim.
Specific deterrence and protection of the community
The nature and seriousness of Mr Douglas’s offence suggest that there is also a need for some weight to be accorded to the sentencing purpose of specific deterrence.
Further, while his moral culpability is reduced by reason of the impact of his intellectual impairment and his paranoid thinking on his impulse control at the relevant time, that these were, at least in part, drivers for his offending, and that they are afflictions with which he has been burdened for much of his life, suggests that weight must be given as well to the protection of the community as a purpose in sentencing.
That said, at 63, he has no meaningful criminal history for offences of violence. In those circumstances, I consider that the weight to be accorded to both specific deterrence and community protection is reduced somewhat on account of his very limited criminal history, as well as a result of his plea of guilty and remorse, and his prospects of rehabilitation, to which I turn now.
Rehabilitation
In my view, for at least two reasons, the facilitation of rehabilitation remains an important purpose in fixing sentence.
First, that Mr Douglas has at least reasonable prospects of reform make rehabilitation a sentencing purpose that must be afforded substantial weight.
Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Sooner or later, Mr Douglas will be returning to the community. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed by his time in custody, so that, when he is released, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are as strong as they can be.
Current sentencing practices
As far as I can determine them, I have also had regard to current sentencing practices for the offence of intentionally causing serious injury. Such practices are but one factor in sentencing, and certainly not a controlling one at that, but they can nevertheless be important in the sentencing synthesis.
To this end, Mr Porceddu referred me to sentencing statistics for the offence. Those statistics show that, for those sentenced to imprisonment for this offence between 2016‑17 and 2020‑21, the median term imposed was five‑and‑a‑half years.[10]
[10]Sentencing Advisory Council, Sentencing Snapshot 263: Causing Serious Injury Intentionally, December 2021, pp 3‑4.
I recognise that such statistics are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations, such as whether there was a plea of guilty or not guilty. Nevertheless, they do give some guidance, and the sentence I am about to impose strikes me as consistent with those statistics.
While I was referred to some sentences in other cases, both as comparators and to assist in gauging current sentencing practices in a more targeted way, the circumstances of those matters were so different from the present case as to be of little assistance.[11] None of the additional cases I considered in my own research was of much assistance either.
[11]See Nash v The Queen (2013) 40 VR 134; and Charles v The Queen [2011] VSCA 399. Mr Porceddu did, however, also helpfully refer to Nash Queen at 137[10] (per Maxwell P) for the purposes of identifying matters routinely taken into account in assessing the gravity of particular instances of the offence. I had regard to those factors in considering this instance of the offence.
But this is not uncommon. In the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished.
As always, in the end, I have been driven to rely on the particular circumstances of this offence and of Mr Douglas, as well as sentencing principles and purposes, in arriving at the appropriate sentence.
Sentence
I turn now to pass sentence.
Mr Douglas, would you stand, please?
Balancing all matters the best I can, and having regard to the fundamental principle of parsimony,[12] I have determined that, for the offence of intentionally causing serious injury to Mr Wells‑Thompson, Mr Douglas is convicted and imprisoned for five years, and I fix a non‑parole period of two years and nine months.
[12]See Sentencing Act 1991 (Vic), s 5(3).
This non‑parole period is three months shorter than I indicated at the sentence indication hearing. It reflects, among other things, the hardship that imprisonment is likely to present for Mr Douglas and the impact his intellectual impairment had on his moral culpability, as explained by Ms Lofthouse. Neither of these considerations was apparent to me at the time of the sentence indication.[13]
[13]Notwithstanding these additional matters, I still considered that, as indicated at the sentence indication hearing, a head sentence of five years’ imprisonment was necessary and appropriate in all the circumstances.
The non‑parole period, partly through its relationship with the head sentence, also reflects the importance of giving Mr Douglas an incentive to work towards his earliest release date and, if so released, the need for him to have the support of the corrections authorities while on parole for a substantial period of time. If he acts on that incentive, this is likely to redound to the benefit of the community via its protection in the longer term through his rehabilitation, which will also benefit Mr Douglas.
Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 503 days of pre‑sentence detention be reckoned as served under this sentence.
I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Mr Douglas’s plea of guilty. This is always an imprecise exercise. Nevertheless, my best estimate is that, had Mr Douglas pleaded not guilty and been found guilty of this offence following a trial, I would have imposed a sentence in the order of seven‑and‑a‑half years’ imprisonment with a non‑parole period of five years.
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