R v Evans
[2014] VCC 2053
•19 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
Case No. CR-13-02458
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
JOHN PATRICK EVANS
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 18 November 2014 | |
DATE OF SENTENCE: | 19 November 2014 | |
CASE MAY BE CITED AS: | R v Evans | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2053 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Jassar | Office of Public Prosecutions Victoria |
| For the Accused | Mr R. Kelly | Stuthridge Legal |
HIS HONOUR:
1 John Patrick Evans, you have pleaded guilty to one charge of making a threat to kill and one charge of recklessly causing serious injury.
2 You were originally charged with the more serious crime of intentionally causing serious injury however, after pre-trial discussion on Monday 3 November and immediately before jury empanelment on 4 November, I was told your case had been ‘settled’. You pleaded guilty to the current charges and not guilty to intentionally causing serious injury. The prosecution lead no evidence concerning the charge of intentionally causing serious injury and I directed a verdict of not guilty on that charge. The proceedings were then adjourned to prepare a prosecution opening and have you psychologically examined.
3 The prosecutor, Mr Jassar, opened the circumstances of the offending by reading from a ‘Summary of Prosecution Opening’ which contained sentencing facts agreed by both sides. This document was tendered.
4 The agreed facts were significantly more favourable to you than had been the allegations in the proposed prosecution opening for the trial.
5 I will not detail the background facts but critically, you stabbed the victim with a serrated edged military type knife lacerating his right kidney.
6 On 22 November 2012, you and others, including the victim, had been drinking before going to your place, in Kyneton, for a barbeque. There had been some previous animosity between you and the victim but matters seemed settled prior to the victim attending your house.
7 You became angry when your co-tenant’s dog ate food you had put out for your cat. The victim told you to calm down and an argument started in your bedroom. The victim told you he should have “pulled your head off” at an earlier incident and he then put you in a headlock. Others intervened and the victim went to the lounge room. From your bedroom you yelled out, threatening to kill the victim (Charge 1). You must have obtained the knife from under your bed about this time because it was seen by another in the room with you who tried to ‘talk sense’ to you. You moved to the lounge room and yelled at the victim to leave the house. The victim walked towards you. You moved back to your bedroom door. The victim punched you and you fell on the bed. The victim then attacked you, punching and choking you. You then swung the knife, stabbing the victim (Charge 3), who only then was aware you had the knife. The victim grabbed the knife, cutting his hand, whilst it was still in his side. He was trying to pull it out, you were trying to push it in. The victim continued to punch you.
8 The victim collapsed and was assisted by others to the laundry area. One of the observers had gone to the police station when you and the victim were struggling on your bed. After the victim collapsed an ambulance was called. You went into the laundry, said you were sorry and asked if you could help.
9 Police attended and observed blood in your right ear, blood on your right cheek, a cut on your eyebrow and a swollen and bruised eye. The knife could not be found but a sheath that it had been in, was found under your doona.
10 The victim was taken to Kyneton hospital and then airlifted to the Royal Melbourne Hospital.
11 When interviewed you told police you obtained the knife from the kitchen. This was false. You also said that you were scared for your life when you stabbed the victim. You said you could not breath, your eyes were popping out of your head and you were going blue in the face. You said the victim was a lot bigger and stronger than you.
12 The victim was charged with and pleaded guilty to assaulting you. He was fined in the Magistrates’ Court.
13 A victim impact statement was tendered. As well as suffering physically, the victim has suffered psychologically. Your conduct has had consequences for others as well. At first the prosecution sought to tender a victim impact statement from a female observer at the house but withdrew the application when objection was made. However, it is obvious that your conduct and its consequences would have been distressing to all who were present. It would have caused distress to everyone connected to the victim, as evidenced by the victim’s children expressing fear of you. The victim complains of serious nightmares. As well as the laceration of his kidney he suffered a small right pneumothorax. He had a paralysed bowel and required intravenous feeding. He remains tender in the site of the scar from the wound and feels pain when he moves in some directions.
14 You have a prior criminal history but have never experienced prison. You have previous weapon convictions and although worrying, they are not a major significance. In 2010, you received imprisonment to be served by way of an ICO, which you breached but the order was varied, allowing continuation with the ICO. You breached a good behaviour bond imposed in 2011 and were fined. In June and September 2012 ,you were released on wholly suspended sentences of two months and one month respectively. You have a pending appeal for unlawful assault and committing an indecent act with a child under 16, which you are contesting. If you are found guilty, this will breach the suspended sentences. If you are found not guilty, the suspended sentences will, nevertheless, still be breached by the current matters before me.
15 You counsel sketched your background. It was also detailed in a psychological report from Warren Simmons.
16 Mr Simmons thought you articulate and insightful. You are 42 years old. Your parents separated when you were six. You are a middle child with two sisters You father is deceased. You had an unhappy childhood and were not close to your mother and stepfather and you rebelled against your stepfather disciplining you. You moved out of home aged 16.
17 You left school in year 11. You completed an apprenticeship as a hairdresser but were unhappy in that work and worked as a trades assistant for six years. In 2000, you suffered a serious head injury at work. You received rehabilitation treatment over the next three years. During this period, you studied horticulture, then returned to boiler-making/engineering, you obtained a truck licence and worked making deliveries. This continued until 2006 when you suffered another serious injury to your arm after a fall from a balcony. You have not been in regular work since then and are currently on a Disability Support Pension. You now live in Castlemaine in a share house.
18 You have a troubling history of alcohol and drug abuse and were frank enough to tell your counsel you still use cannabis. You take anti-depressant and serious pain reliever medication.
19 You told Mr Simmons you had been the victim of approximately 20 assaults, a matter relied upon to explain, in part, your conduct committing the current charges.
20 You were appropriately remorseful when interviewed by Mr Simmons, expressing guilt and regret for what you did.
21 Mr Simmons thought you are suffering from post-traumatic stress disorder (PTSD) as a result of your involvement in the current offending, particularly given that you were also a victim certainly before your overreaction. You told your counsel you are petrified of going to prison. You have a history of suicide attempts in your teens and Mr Simmons thought you would almost certainly be at risk of self-harm, should you be imprisoned. Although Mr Simmons thought it unlikely that you have suffered brain damage from past head injuries, he considered a neuropsychological assessment would assist. He thought you would benefit from treatment for depression and PTSD Additionally, you require drug and alcohol counselling. He thought a review of your anti-depressant medication was also appropriate.
22 You must benefit from your pleas of guilty. The pleas came late, however, I accept that you had a possible defence and agreed to plead when the prosecution agreed to not pursue the major charge and accept a version of the facts that was far more favourable than the original prosecution contentions. Your pleas still save time, expense and the need for witnesses to give evidence and I accept that they reflect remorse.
23 Of course, your offending is serious and, as your counsel conceded, would usually call for immediate imprisonment. The use of a knife to inflict injury has been the subject of much comment by the Court of Appeal and long terms of imprisonment are commonly imposed for such offending. Your counsel relied heavily on the fact that your victim was the original physical aggressor at both stages of the incident and that you were pursued to your own bedroom by him. You were under serious attack when you used the knife. However, the fact that you had armed yourself with such a weapon between attacks is highly culpable. You plea concedes that you were not acting in self-defence.
24 Just on two years has elapsed since the offending. I accept that the pending charges would have placed you under considerable stress during this time.
25 Your counsel submitted that, in the somewhat unusual factual setting of being the initial victim, coupled with the other matters in mitigation, it would be open to me to release you on a community correction order. It was acknowledged that this was not a soft option because, if breached, you would almost certainly be immediately imprisoned. On the other hand it would be very much in the community’s interest to ensure you are suitably counselled and receive treatment to foster your rehabilitation. Your counsel submitted you have good rehabilitation prospects and it was unlikely that there would be a repeat of similar conduct given the unusual circumstances of the offending together with your remorse, insight and the impact generally that the incident has had upon you.
26 The prosecution, after obtaining appropriate instructions, submitted that a CCO was within the range of appropriate sentences and it had the benefit of ensuring mental health, drug and alcohol treatment.
27 I had you assessed to determine your suitability for release on a CCO, you were found suitable. You were assessed at low risk of re-offending. With some reservations, I will take the suggested course.
28 You will be convicted of both charges and released on a CCO for a period of 30 months. You will be under supervision. You will be required to undergo assessment and treatment for drugs and alcohol as well as assessment and treatment for mental health. I am conscious of your limited capacity for lifting with your right arm but suitable light work should be found. I will, however, limit the course of unpaid community work to 100 hours.
29 I emphasise that this is not necessarily intended to be the end of the matter because you will remain under scrutiny by this court and, should you not take this opportunity, you will almost certainly be sent to prison.
30 You can leave the dock and we will prepare the documents, Mr Evans.
31 MR JASSAR: There is a disposal that is not objected to by my learned friend.
32 HIS HONOUR: That is not objected to?
33 MR JASSAR: Not objected to. I have removed two items which I thought were unnecessary and were not used in the commission of the offence. Those are the knives and the knife block that were in the kitchen, Your Honour. So there was a blood-stained T-shirt and the knife sheath.
34 HIS HONOUR: Very well, I will sign that.
35 MR KELLY: No objection, Your Honour.
36 HIS HONOUR: Would counsel check it? I think it's fine.
37 MR KELLY: Yes, Your Honour.
38 HIS HONOUR: Would you have your client sign it?
(Bond signed and acknowledged.)
39 Thank you both for your help. I will leave the Bench.
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